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EXHIBIT 10.10
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF , 2001
TO
INDENTURE
DATED AS OF JANUARY 26, 1999
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BETWEEN
NATIONAL SERVICE INDUSTRIES, INC.
AND
SUNTRUST BANK, FORMERLY KNOWN AS
SUNTRUST BANK, ATLANTA, AS TRUSTEE
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SENIOR DEBT SECURITIES
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FIRST SUPPLEMENTAL INDENTURE, dated as of , 2001 (this
"First Supplemental Indenture"), between NATIONAL SERVICE INDUSTRIES, INC., a
Delaware corporation ("NSI"), L & C SPINCO, INC., a Delaware corporation (the
"Company"), L & C LIGHTING GROUP, Inc., a Delaware corporation and a wholly
owned subsidiary of the Company ("Lightco"), and SUNTRUST BANK, formerly known
as SUNTRUST BANK, ATLANTA, a Georgia banking corporation, as trustee (the
"Trustee").
WITNESSETH:
WHEREAS, NSI and the Trustee entered into an Indenture, dated as of January
26, 1999 (the "Indenture"), pursuant to which NSI issued its 8.375% Notes due
August 1, 2010, and its 6% Notes due 2009 (the "Notes");
WHEREAS, NSI and its subsidiaries have transferred to the Company all of
the assets comprising NSI's lighting equipment and chemicals businesses in
connection with the transactions contemplated by that certain Agreement and Plan
of Distribution between NSI and the Company (the "Distribution Agreement"),
pursuant to which all the outstanding shares of common stock of the Company will
be distributed to NSI's stockholders (the "Spin-Off");
WHEREAS, pursuant to Section 801 of the Indenture, NSI 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 any 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;
WHEREAS, the Company will assume all the rights and obligations of, and
succeed to and be substituted for, NSI under the Indenture and the Securities;
WHEREAS, in addition, Lightco, jointly and severally with the Company, will
assume the due and punctual payment of the principal of and interest on the
Securities;
WHEREAS, to evidence the assumption of the obligations under the Indenture
and the Securities by the Company and the release of NSI from its liabilities
and obligations under or with respect to the Notes and the Indenture in
accordance with Sections 801 and 802 of the Indenture, the Company has agreed to
execute and deliver this First Supplemental Indenture;
WHEREAS, NSI 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, the Company,
Lightco and the Trustee agree, for the benefit of the other, NSI 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. The Company
hereby fully and unconditionally assumes the due and punctual payment of the
principal of (and premium, if any) and interest (including any 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.
Section 102. Assumption of Notes. Lightco, jointly and severally with the
Company, hereby fully and unconditionally assumes the due and punctual payment
of the principal of and interest on the Securities.
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ARTICLE II
RELEASE OF OBLIGATIONS
Section 201. Release of NSI from Obligations. The Trustee, on behalf of
the Holders of the Securities, hereby relieves NSI from all covenants and
obligations under the Notes, the Securities, and the Indenture, effective upon
the "Effective Time" (as defined in the Distribution Agreement).
ARTICLE III
MISCELLANEOUS PROVISIONS
Section 301. Terms Defined. For all purposes of this First 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 Supplemental Indenture. Upon the execution and
delivery of this First Supplemental Indenture by NSI, the Company, Lightco and
the Trustee, the Indenture shall be supplemented in accordance herewith, and
this First 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 First
Supplemental Indenture by NSI, the Company, Lightco and the Trustee, the Company
shall succeed to and be substituted for NSI with the same effect as if it had
been named therein as the party of the first part and NSI shall be released and
relieved as heretofore agreed.
Section 303. Indenture and Supplemental Indenture Construed
Together. This First Supplemental Indenture is an indenture supplemental to and
in implementation of the Indenture, and the Indenture and this First
Supplemental Indenture shall henceforth be read and construed together.
Section 304. Confirmation of Indenture. Except as amended by this First
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 NSI and the Company,
and makes no representations as to the validity or sufficiency of this First
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
First Supplemental Indenture limits, qualifies or conflicts with any provision
of the Trust Indenture Act (the "Act") that is required under the Act to be part
of and govern any provision of this First Supplemental Indenture, the provision
of the Act shall control. If any provision of this Supplemental Indenture
modifies or excludes any provision of the Act that may be so modified or
excluded, the provision of the Act shall be deemed to apply to the Indenture as
so modified or to be excluded by this First Supplemental Indenture, as the case
may be.
Section 306. Severability. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 307. Headings. The Article and Section headings of this First
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered part of this First Supplemental Indenture and shall in no
way modify or restrict any of the terms or provisions hereof.
Section 308. Benefits of Supplemental Indenture. Nothing in this First
Supplemental Indenture or the Securities, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors
hereunder, any Authenticating Agent, Paying Agent and Security Registrar, and
the Holders, any benefit of any legal or equitable right, remedy or claim under
the Indenture, this First Supplemental Indenture or the Securities.
Section 309. Certain Duties and Responsible of the Trustee. In entering
into this First Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the
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conduct of, affecting the liability of or affording protection to the Trustee,
whether or not elsewhere herein so provided.
Section 310. Governing Law. THIS SUPPLEMENTAL INDENTURE, THE INDENTURE
AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 311. Successors. All agreements of the Company in this First
Supplemental Indenture shall bind its respective successors. All agreements of
the Trustee in this First Supplemental Indenture shall bind the Holders of all
Securities and all successors of the Trustee or such Holders.
Section 312. Multiple Counterparts. The parties may sign multiple
counterparts of this First Supplemental Indenture. Each signed counterpart shall
be deemed an original, but all of them together represent the same agreement.
Section 313. Endorsement and Change of Form of Notes. Any Notes
authenticated and delivered after the date of this First Supplemental Indenture
in exchange or substitution for Notes then outstanding and all Notes presented
or delivered to the Trustee on and after that date for such purpose shall
(unless textually revised as hereinafter provided) be stamped or typewritten by
the Trustee with a notation as follows:
"L&C Spinco, Inc. a Delaware corporation (the "Company"), has assumed
the obligations of National Service Industries, Inc. ("NSI") as successor
to NSI in connection with the transfer of the properties and assets of NSI
substantially as an entirety. The Company has expressly assumed the due and
punctual payment of the principal of and interest on all the Notes and the
due and punctual performance and observance of all the covenants and
obligations in the Indenture to be performed by NSI, and NSI will be
relieved from all covenants and obligations under the Notes, the Securities
and the Indenture in accordance with the First Supplemental Indenture
referred to below. The Indenture dated as of January 26, 1999 referred to
in this Note has been amended by a First Supplemental Indenture dated as of
, 2001 to provide for such assumptions of obligations by the
Company and the release of NSI from such obligations. Reference is hereby
made to said First Supplemental Indenture, copies of which are on file with
SunTrust Bank, as Trustee, for a description of the amendments therein
made."
Any Notes hereafter authenticated and delivered in exchange or substitution
for Notes then outstanding shall, if the Company so elects, be textually revised
in a form approved by the Trustee to make reference to the First Supplemental
Indenture and to reflect the amendment of the Indenture hereby instead of being
stamped or typewritten as hereinabove provided.
Section 314. Effectiveness of First Supplemental Indenture. This First
Supplemental Indenture shall be effective upon the execution and delivery by
NSI, the Company, Lightco and the Trustee.
Section 315. Indemnification of Trustee. The Company and Lightco
(collectively, the "Companies" and individually, a "Company"), each agree,
jointly and severally, to indemnify, defend and hold harmless the Trustee and
its officers, directors, employees, agents, counsel, and their respective
successors, assigns, heirs, personal representatives and administrators
(collectively, the "Indemnified Parties") from and against, for and in respect
of, any and all Losses (as hereinafter defined), including, but not limited to,
those which might arise as a result of Litigation (as hereinafter defined) or
Third-Party Claims (as hereinafter defined), assessed against, or paid, suffered
or incurred by, any Indemnified Party which directly or indirectly result from
or are based upon, or arise out of: (i) the execution, delivery and performance
of this Agreement; (ii) the Transfer, the Spin-Off, the solicitation of
directions from the Holders and all other transactions described herein or in
the Distribution Agreement in connection therewith (collectively, the
"Transactions"); (iii) the inaccuracy, untruth, or breach of any representation,
warranty, statement or opinion made by either of the Companies or their
respective officers, agents or counsel pursuant to this Agreement or the
Indenture, or contained in any certificate, opinion or other document or paper
furnished to the Trustee by either of the Companies or their respective
officers, agents or counsel in connection herewith or the Indenture; (iv) any
breach or failure to perform any covenant or agreement set forth in the
Indenture by NSI in connection with the Transactions; or
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(v) any action or failure to act on the part of the Trustee or any other
Indemnified Party in connection with this Agreement or the Indenture with
respect to the Transactions. Notwithstanding anything else herein contained, the
foregoing indemnity shall not be applicable to any Losses suffered or incurred
by any Indemnified Party as result of such Indemnified Party's negligence or bad
faith.
For purposes of this Section, the terms "Litigation," "Losses,"
"Third-Party Claim" and "Indemnification Claim" shall have the following
meanings:
"Litigation" shall mean any demand, action, suit, cause of action,
claim, complaint, prosecution, formal, informal, or threatened examination,
investigation, hearing or other proceeding (whether civil, criminal or
administrative or involving any arbitration) relating to or affecting an
Indemnified Party.
"Losses" shall mean any and all assessments, losses, diminution in
value, damages, (including direct, indirect, special and consequential
damages and sums paid in settlement of claims), liabilities, judgments,
costs and expenses (including, without limitation, interest, penalties,
fines, reasonable costs of investigation defense, and the reasonable fees
and expenses of attorneys and other advisors).
"Third-Party Claim" shall mean any Litigation (including, without
limitation, a binding arbitration or an audit by any governmental or
administrative authority) that is instituted or threatened against an
Indemnified Party and which, if prosecuted successfully, could result in an
Indemnification Claim.
"Indemnification Claim" shall mean any claim for indemnification
provided under this Section 315.
Section 316. Trustee's Fees and Expenses. Without duplication with
respect to any obligation of the Companies under Section 315 hereof, the
Companies jointly and severally agree to pay the Trustee upon the execution and
delivery of this Agreement and thereafter upon receipt of a written request
therefor, fees and expenses of the Trustee incurred in connection with this
Agreement and the Transactions, including, without limitation, all attorney's
fees and expenses in connection with (i) the review, negotiation and preparation
of this Agreement and any and all documents, opinions, certificates and other
papers prepared in connection herewith and with the Transactions, (ii) the
administration or enforcement of the Indenture or this Agreement in connection
with the Transactions, and (iii) any administrative, judicial, arbitration or
other proceedings, or any investigations with respect thereto or in any way
related to this Agreement or the Indenture with respect to any of the
Transactions.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
NATIONAL SERVICE INDUSTRIES, INC.
By:
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Name:
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Title:
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L & C SPINCO, INC.
By:
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Name:
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Title:
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L & C LIGHTING GROUP, INC.
By:
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Name:
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Title:
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SUNTRUST BANK, as Trustee
By:
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Name:
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Title:
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