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EXHIBIT 4.3
SECOND SUPPLEMENTAL INDENTURE AND GUARANTEE
SECOND SUPPLEMENTAL INDENTURE AND GUARANTEE (this "Supplemental
Indenture"), dated as of June 8, 1999, among UNICCO Service of M.I. (the
"Guaranteeing Restricted Subsidiary"), a Domestic Restricted Subsidiary of
UNICCO Service Company, a Massachusetts business trust (the "Company"), UNICCO
Finance Corp., a Delaware corporation ("Finance" and, together with the Company,
the "Issuers"), the other Guarantors (as defined in the Indenture referred to
herein), and State Street Bank and Trust Company, as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the
Trustee an Indenture (the "Original Indenture"), dated as of October 17, 1997
providing for the issuance of an aggregate principal amount of up to $150.0
million of 9 7/8% Senior Subordinated Notes due 2007 (the "Notes") and a First
Supplemental Indenture dated as of February 27, 1998 (together with the Original
Indenture, the "Indenture");
WHEREAS, on December 28, 1998, a Note Guarantee was executed by USC,
Inc., UNICCO Government Services, Inc., American Building Services, Inc. and
UNICCO Service of N.J., Inc. which amended the Note Guarantees dated as of
February 27, 1998, and as of October 17, 1997 (the "Original Note Guarantees"),
and for all purposes replaced the Original Note Guarantees;
WHEREAS, the Guaranteeing Restricted Subsidiary has been acquired or
created by the Company as provided in Sections 4.18 and 11.04 of the Indenture;
WHEREAS, effective as of the date hereof, the Company dissolved its
wholly-owned subsidiary, American Building Services, Inc.;
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Restricted Subsidiary shall execute and deliver to the Trustee a
supplemental indenture pursuant to which the Guaranteeing Restricted Subsidiary
shall unconditionally guarantee all of the Issuers' Obligations under the Notes
and the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing
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Restricted Subsidiary and the Trustee mutually covenant and agree for the equal
and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. The Guaranteeing Restricted Subsidiary
hereby agrees as follows:
(a) Along with all the Guarantors (other than American Building
Services, Inc., which has been dissolved) party to the Note
Guarantee dated as of December 28, 1998, to jointly and
severally Guarantee to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors
and assigns, irrespective of the validity and enforceability
of the Indenture, the Notes or the obligations of the Issuers
hereunder or thereunder, that:
(i) the principal of and premium, interest and Liquidated
Damages, if any, on the Notes will be promptly paid
in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest
on the overdue principal of, premium, interest and
Liquidated Damages, if any, on the Notes, if any, if
lawful, and all other obligations of the Issuers to
the Holders or the Trustee hereunder or thereunder
will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other
Obligations, the same will be promptly paid in full
when due or performed in accordance with the terms of
the extension or renewal, whether at stated maturity,
by acceleration or otherwise. Failing payment when
due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall
be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be unconditional, irrespective
of the validity, regularity or enforceability of the Notes or
the Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Notes with respect
to any provisions hereof or thereof, the recovery of any
judgment against either of the Issuers, any action to enforce
the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a
Guarantor.
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(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of
insolvency or bankruptcy of either of the Issuers, any right
to require a proceeding first against the Issuers, protest,
notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the Obligations contained in the Notes and the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Issuers, the Guarantors, or any
custodian, trustee, liquidator or other similar official
acting in relation to either the Issuers or the Guarantors,
any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guarantors shall not be entitled to any right of
subrogation in relation to the Holders in respect of any
obligations guaranteed hereby until payment in full of all
Obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the
Obligations guaranteed hereby may be accelerated as provided
in Article 6 of the Indenture for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the
Obligations guaranteed hereby, and (y) in the event of any
declaration of acceleration of such Obligations as provided in
Article 6 of the Indenture, such Obligations (whether or not
due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note
Guarantee.
(i) Pursuant to Section 11.03 of the Indenture, after giving
effect to any maximum amount and any other contingent and
fixed liabilities that are relevant under any applicable
Bankruptcy or fraudulent conveyance laws, and after giving
effect to any collections from, rights to receive contribution
from or payments made by or on behalf of any other Guarantor
in respect of the Obligations of such other Guarantor under
Article 11 of the Indenture the Obligations of the Guarantors
shall be limited to the maximum amount as shall result in the
Obligations of such Guarantor under its Note Guarantee not
constituting a fraudulent transfer or conveyance.
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3. EXECUTION AND DELIVERY. The Guaranteeing Restricted Subsidiary
agrees that the Note Guarantees shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Note
Guarantee.
4. GUARANTEEING RESTRICTED SUBSIDIARY MAY CONSOLIDATE, ETC. ON
CERTAIN TERMS.
(a) The Guaranteeing Restricted Subsidiary may not consolidate
with or merge with or into (whether or not such Guarantor is
the surviving Person) another corporation, Person or entity
whether or not affiliated with such Guarantor unless:
(i) subject to Section 11.05 of the Indenture, the Person
formed by or surviving any such consolidation or
merger (if other than a Guarantor or the Issuers)
unconditionally assumes all the obligations of such
Guarantor, pursuant to a supplemental indenture in
form and substance reasonably satisfactory to the
Trustee, under the Notes, the Indenture and the Note
Guarantee on the terms set forth herein or therein;
and
(ii) immediately after giving effect to such transaction,
no Default or Event of Default exists.
(b) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor corporation, by
supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the Note Guarantee
endorsed upon the Notes and the due and punctual performance
of all of the covenants and conditions of the Indenture to be
performed by the Guarantor, such successor corporation shall
succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such
successor corporation thereupon may cause to be signed any or
all of the Note Guarantees to be endorsed upon all of the
Notes issuable hereunder which theretofore shall not have been
signed by the Issuers and delivered to the Trustee. All the
Note Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance
with the terms of the Indenture as though all of such Note
Guarantees had been issued at the date of the execution
hereof.
(c) Except as set forth in Articles 4 and 5 of the Indenture, and
notwithstanding clauses (a) and (b) above, nothing contained
in the
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Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the
Issuers or another Guarantor, or shall prevent any sale or
conveyance of the property of a Guarantor as an entirety or
substantially as an entirety to the Issuers or another
Guarantor.
5. RELEASES.
(a) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or
otherwise, or a sale or other disposition of all of the
capital stock of any Guarantor (other than to the Company or
another Guarantor), or in the case the Company designates a
Domestic Restricted Subsidiary to be an Unrestricted
Subsidiary in accordance with the Indenture, then such
Guarantor (in the event of a sale or other disposition, by way
of merger, consolidation or otherwise, of all of the capital
stock of such Guarantor) or the corporation acquiring the
property (in the event of a sale or other disposition of all
or substantially all of the assets of such Guarantor) shall be
released and relieved of any obligations under its Note
Guarantee; provided that the Net Proceeds of such sale or
other disposition are applied in accordance with the
applicable provisions of the Indenture, including without
limitation Section 4.10 of the Indenture. Upon delivery by the
Company to the Trustee of an Officers' Certificate and an
Opinion of Counsel to the effect that such sale or other
disposition was made by the Company in accordance with the
provisions of the Indenture, including without limitation
Section 4.10 of the Indenture, the Trustee shall execute any
documents reasonably required in order to evidence the release
of any Guarantor from its obligations under its Note
Guarantee.
(b) Any Guarantor not released from its obligations under its Note
Guarantee shall remain liable for the full amount of principal
of and interest on the Notes and for the other obligations of
any Guarantor under the Indenture as provided in Article 10 of
the Indenture.
6. NO RECOURSE AGAINST OTHERS. No past, present or future
director, officer, employee, trustee, incorporator, shareholder or agent of the
Guaranteeing Restricted Subsidiary, as such, shall have any liability for any
obligations of the Issuers or any Guaranteeing Restricted Subsidiary under the
Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for
any claim based on, in respect of, or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for
issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such
a waiver is against public policy.
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7. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE BUT
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT
THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
8. COUNTERPARTS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
9. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
10. THE TRUSTEE. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity or sufficiency of this
Supplemental Indenture or for or in respect of the recitals contained herein,
all of which recitals are made solely by the Guaranteeing Restricted Subsidiary
and the Issuers.
SIGNATURES
Dated as of the date first set forth above.
Guaranteeing Restricted Subsidiary:
UNICCO SERVICE OF M.I., INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Other Guarantors:
UNICCO SERVICE OF N.J., INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
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USC, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
UNICCO GOVERNMENT SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Issuers:
UNICCO SERVICE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President - Finance and
Administration
UNICCO FINANCE CORP.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Treasurer
STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE
By: /s/ Xxxxxx X. Xxxxxxx
_________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
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