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Exhibit 4.1
SECOND SUPPLEMENTAL
INDENTURE
Dated as of
September 26, 2007
to
INDENTURE
Dated as of
January 26, 1999
among
ACUITY BRANDS, INC.,
formerly known as ACUITY BRANDS HOLDINGS, INC.,
OLD ABI, INC., formerly
known as ACUITY BRANDS, INC.,
as successor to NATIONAL
SERVICE INDUSTRIES, INC.
and
THE BANK OF NEW YORK TRUST
COMPANY, N.A.,
as successor to THE BANK
OF NEW YORK, as successor to SUNTRUST BANK,
formerly known as SUNTRUST
BANK, ATLANTA, as Trustee
Senior Debt
Securities
SECOND SUPPLEMENTAL
INDENTURE, dated as of September 26, 2007 (this “Second
Supplemental Indenture”), between OLD ABI, INC., a Delaware
corporation formerly known as ACUITY BRANDS, INC. (the
“Company”), ACUITY BRANDS, INC., a Delaware corporation
formerly known as ACUITY BRANDS HOLDINGS, INC. (said corporation,
together with its successors and assigns, herein referred to as
“Holdco”), and THE BANK OF NEW YORK TRUST COMPANY,
N.A., as trustee (the “Trustee”), as successor to THE
BANK OF NEW YORK, as successor to SUNTRUST BANK, formerly known as
SUNTRUST BANK, ATLANTA, a Georgia banking corporation.
W I T N E S S E T
H:
WHEREAS, National Service
Industries, Inc., a Delaware corporation (“NSI”), and
the Trustee entered into an Indenture, dated as of January 26,
1999 (the “Base Indenture”), pursuant to which NSI
issued its 8.375% Notes due August 1, 2010 (the “2010
Notes”), and its 6% Notes due 2009 (the “2009
Notes” and collectively with the 2010 Notes, the
“Notes”);
WHEREAS, NSI, the Company,
L&C Lighting Group, Inc., a Delaware corporation, The ZEP
Group, Inc., a Delaware corporation, and the Trustee entered into a
First Supplemental Indenture, dated as of October 23, 2001
(the “First Supplement Indenture” and together with the
Base Indenture, the “Indenture”), pursuant to which the
Company assumed, in accordance with Section 801 thereof, the
due and punctual payment of the principal of (and premium, if any)
and interest (including all Additional Amounts, if any) on all the
Securities and the performance of every covenant of the Indenture
on the part of NSI to be performed or observed, and NSI was
released from all such obligations in accordance with
Section 802 thereof;
WHEREAS, the Company has
conveyed or transferred all of its assets to Holdco (the
“Transfer”);
WHEREAS, pursuant to
Section 801 of the Indenture, the Company may convey, transfer
or lease its properties and assets substantially as an entirety to
any other corporation, partnership or trust organized and existing
under the laws of the United States of America, any state thereof
or the District of Columbia; provided that such Person shall
expressly assume, by a supplemental indenture executed and
delivered to the Trustee and in form satisfactory to the Trustee,
the due and punctual payment of the principal of (and premium, if
any) and interest (including all Additional Amounts, if any) on all
the Securities and the performance of every covenant of the
Indenture on the part of the Company to be performed or
observed;
WHEREAS, Holdco will assume
all the rights and obligations of, and succeed to and be
substituted for, the Company under the Indenture and the
Securities;
WHEREAS, to evidence the
assumption of the obligations under the Indenture and the
Securities by Holdco and the release of the Company from its
obligations and covenants under the Indenture and the Securities in
accordance with Sections 801 and 802 of the Indenture, Holdco has
agreed to execute and deliver this Second Supplemental Indenture;
and
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WHEREAS, the Company has
delivered, or caused to be delivered, to the Trustee, an
Officers’ Certificate and an Opinion of Counsel meeting the
requirements of Section 801(c) of the Indenture;
NOW, THEREFORE, in
consideration of the above premises, Holdco, the Company and the
Trustee each agree, for the benefit of the other, and for the equal
and ratable benefit of the Holders of the Notes, as
follows:
ARTICLE I
ASSUMPTION OF
OBLIGATIONS
Section 101.
Assumption of Obligations under Indenture . Holdco hereby
fully and unconditionally assumes the due and punctual payment of
the principal of (and premium, if any) and interest (including all
Additional Amounts, if any) on all the Securities (including,
without limitation, the Notes) and the performance of every
covenant of the Indenture on the part of the Company to be
performed or observed.
ARTICLE II
RELEASE OF
OBLIGATIONS
Section 201. Release
of the Company from Obligations . The Trustee, on behalf of the
Holders of the Securities, hereby relieves the Company from all
obligations and covenants under the Indenture and the Securities
(including, without limitation, the Notes).
ARTICLE III
MISCELLANEOUS
PROVISIONS
Section 301. Terms
Defined . For all purposes of this Second Supplemental
Indenture, capitalized terms used and not otherwise defined herein
shall have the meanings assigned to such terms in the
Indenture.
Section 302. Effect
of Second Supplemental Indenture . Upon the execution and
delivery of this Second Supplemental Indenture by the Company,
Holdco and the Trustee, the Indenture shall be supplemented in
accordance herewith, and this Second Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of
Securities heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby. In accordance with
Section 802 of the Indenture, upon the execution and delivery
of this Second Supplemental Indenture by the Company, Holdco and
the Trustee, Holdco shall succeed to and be substituted for the
Company with the same effect as if it had been named therein as the
party of the first part and the Company shall be released and
relieved as heretofore agreed.
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Section 303.
Indenture and Second Supplemental Indenture Construed
Together . This Second Supplemental Indenture is an indenture
supplemental to and in implementation of the Indenture, and the
Indenture and this Second Supplemental Indenture shall henceforth
be read and construed together.
Section 304.
Confirmation of Indenture . Except as amended by this Second
Supplemental Indenture, the Indenture and the Notes are in all
respects ratified and confirmed, and all the terms thereof shall
remain in full force and effect. The Trustee has no responsibility
for correctness of the recitals of facts herein contained, which
shall be taken as the statements of the Company and Holdco, and
makes no representations as to the validity or sufficiency of this
Second Supplemental Indenture and shall incur no liability or
responsibility in respect of the validity thereof.
Section 305. Conflict
with Trust Indenture Act . If any provision of this Second
Supplemental Indenture limits, qualifies or conflicts with any
provision of the Trust Indenture Act (the “Act”)
that
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