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Exhibit (b)(6)
COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
BETWEEN
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
AND
WACHOVIA SECURITIES, INC., AS DEALER
CONCERNING NOTES TO BE ISSUED PURSUANT TO AN
ISSUING AND PAYING AGENCY AGREEMENT
DATED AS OF JULY 16, 1999
BETWEEN THE ISSUER AND
THE FIRST NATIONAL BANK OF CHICAGO, AS ISSUING AND PAYING AGENT
DATED AS OF
JULY 16, 1999
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COMMERCIAL PAPER DEALER AGREEMENT
[4(2) PROGRAM]
This agreement ("Agreement") sets forth the understandings between
the Issuer and the Dealer, each named on the cover page hereof, in connection
with the issuance and sale by the Issuer of its short-term promissory notes
pursuant to the Issuing and Paying Agency Agreement dated as of July 16, 1999
between the Issuer and The First National Bank of Chicago, as Issuing and Paying
Agent (the "Notes") through the Dealer.
Certain terms used in this Agreement are defined in Section 6 hereof.
The Addendum to this Agreement, and any Annexes or Exhibits described
in this Agreement or such Addendum, are hereby incorporated into this Agreement
and made fully a part hereof.
Section 1. Offers, Sales and Resales of Notes.
1.1 While (i) the Issuer has and shall have no obligation to sell the
Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for
the account of the Issuer, and (ii) the Dealer has and shall have no obligation
to purchase the Notes from the Issuer or to arrange any sale of the Notes for
the account of the Issuer, the parties hereto agree that in any case where the
Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the
Issuer, such Notes will be purchased or sold in reliance on the representations,
warranties, covenants and agreements of the parties contained herein or made
pursuant hereto and on the terms and conditions and in the manner provided
herein.
1.2 So long as this Agreement shall remain in effect, and in addition
to the limitations contained in Section 1.7 hereof, the Issuer shall not,
without the consent of the Dealer (which consent shall not be unreasonably
withheld), offer, solicit or accept offers to purchase, or sell, any Notes
except (a) in transactions with one or more dealers which may from time to time
after the date hereof become dealers with respect to the Notes by executing with
the Issuer one or more agreements which contain provisions substantially
identical to those contained in Section 1 of this Agreement, of which the Issuer
hereby undertakes to provide the Dealer prompt notice or (b) in transactions
with the other dealers listed on the Addendum hereto, which are executing
agreements with the Issuer which contain provisions substantially identical to
Section 1 of this Agreement contemporaneously herewith. In no event shall the
Issuer offer, solicit or accept offers to purchase, or sell, any Notes directly
on its own behalf in transactions with persons other than broker-dealers as
specifically permitted in this Section 1.2.
1.3 The Notes shall be in a minimum denomination of $250,000 or
integral multiples of $1,000 in excess thereof, will bear such interest rates,
if interest bearing, or will be sold at such discount from their face amounts,
as shall be agreed upon by the Dealer and the Issuer, shall have a maturity not
exceeding 366 days from the date of issuance (exclusive of days of grace) and
shall not contain any provision for extension, renewal or automatic "rollover."
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1.4 The authentication and issuance of, and payment for, the Notes
shall be effected in accordance with the Issuing and Paying Agency Agreement,
and the Notes shall be either individual physical certificates or book-entry
notes evidenced by a Master Note registered in the name of DTC or its nominee,
in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the
purchase of any Note by the Dealer or the sale of any Note arranged by the
Dealer (including, but not limited to, agreement with respect to the date of
issue, purchase price, principal amount, maturity and interest rate (in the case
of interest-bearing Notes) or discount thereof (in the case of Notes issued on a
discount basis), and appropriate compensation for the Dealer's services
hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be
issued and delivered in accordance with the terms of the Issuing and Paying
Agency Agreement and payment for such Note shall be made by the purchaser
thereof, either directly or through the Dealer, to the Issuing and Paying Agent,
for the account of the Issuer. Except as otherwise agreed, in the event that the
Dealer is acting as an agent and a purchaser shall either fail to accept
delivery of or make payment for a Note on the date fixed for settlement, the
Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid
the Issuer for the Note, the Issuer will promptly return such funds to the
Dealer against its return of the Note to the Issuer, in the case of a
certificated Note, and upon notice of such failure in the case of a book-entry
Note. If such failure occurred for any reason other than default by the Dealer,
the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's
loss of the use of such funds for the period such funds were credited to the
Issuer's account.
1.6 The Dealer and the Issuer hereby establish and agree to observe
the following procedures in connection with offers, sales and subsequent resales
or other transfers of the Notes:
(a) Offers and sales of the Notes by or through the Dealer
shall be made only to: (i) investors reasonably believed by the
Dealer to be Qualified Institutional Buyers, Institutional Accredited
Investors or Sophisticated Individual Accredited Investors and (ii)
non-bank fiduciaries or agents that will be purchasing Notes for one
or more accounts, each of which is reasonably believed by the Dealer
to be an Institutional Accredited Investor or Sophisticated
Individual Accredited Investor.
(b) Resales and other transfers of the Notes by the holders
thereof shall be made only in accordance with the restrictions in the
legend described in clause (e) below.
(c) No general solicitation or general advertising shall be
used in connection with the offering of the Notes. Without limiting
the generality of the foregoing, without the prior written approval
of the Dealer, the Issuer shall not issue any press release or place
or publish any "tombstone" or other advertisement relating to the
Notes.
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If the form or forms of Notes are not annexed to the Issuing and Paying Agency
Agreement, they should be annexed to this Agreement or delivered to the Dealer,
with appropriate certification by the Secretary of the Issuer, pursuant to
section 3.6 of the Agreement.
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(d) No sale of Notes to any one purchaser shall be for less
than $250,000 principal or face amount, and no Note shall be issued
in a smaller principal or face amount. If the purchaser is a non-bank
fiduciary acting on behalf of others, each person for whom such
purchaser is acting must purchase at least $250,000 principal or face
amount of Notes.
(e) Offers and sales of the Notes by the Issuer through the
Dealer acting as agent for the Issuer shall be made in accordance
with Rule 506 under the Securities Act, and shall be subject to the
restrictions described in the legend appearing on Exhibit A hereto. A
legend substantially to the effect of such Exhibit A shall appear as
part of the Private Placement Memorandum used in connection with
offers and sales of Notes hereunder, as well as on each individual
certificate representing a Note and each Master Note representing
book-entry Notes offered and sold pursuant to this Agreement.
(f) The Dealer shall furnish or shall have furnished to
each purchaser of Notes for which it has acted as the Dealer a copy
of the then-current Private Placement Memorandum unless such
purchaser has previously received a copy of the Private Placement
Memorandum as then in effect. The Private Placement Memorandum shall
expressly state that any person to whom Notes are offered shall have
an opportunity to ask questions of, and receive information from, the
Issuer and the Dealer and shall provide the names, addresses and
telephone numbers of the persons from whom information regarding the
Issuer may be obtained.
(g) The Issuer agrees, for the benefit of the Dealer and
each of the holders and prospective purchasers from time to time of
the Notes that, if at any time the Issuer shall not be subject to
Section 13 or 15(d) of the Exchange Act, the Issuer will furnish,
upon request and at its expense, to the Dealer and to holders and
prospective purchasers of Notes information required by Rule
144A(d)(4)(i) in compliance with Rule 144A(d).
(h) In the event that any Note offered or to be offered by
the Dealer would be ineligible for resale under Rule 144A, the Issuer
shall immediately notify the Dealer (by telephone, confirmed in
writing) of such fact and shall promptly prepare and deliver to the
Dealer an amendment or supplement to the Private Placement Memorandum
describing the Notes that are ineligible, the reason for such
ineligibility and any other relevant information relating thereto.
(i) The Issuer represents that it is not currently issuing
commercial paper in the United States market in reliance upon the
exemption provided by Section 3(a)(3) of the Securities Act. In the
event that the Issuer determines to issue commercial paper in the
United States market in reliance on such exemption, the Issuer agrees
that (a) the proceeds from the sale of the Notes will be segregated
from the proceeds of the sale of any such commercial paper by being
placed in a separate account; (b) the Issuer will institute
appropriate corporate procedures to ensure that the offers and sales
of notes issued by the Issuer pursuant to the Section 3(a)(3)
exemption are not integrated with
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offerings and sales of Notes hereunder; and (c) the Issuer will
comply with each of the requirements of Section 3(a)(3) of the Act in
selling commercial paper or other short-term debt securities other
than the Notes in the United States.
(j) The Issuer hereby agrees that, not later than 15 days
after the first sale of Notes as contemplated by this Agreement, it
will file with the SEC a notice on Form D in accordance with Rule 503
under the Securities Act and that it will thereafter file such
amendments to such notice as Rule 503 may require.
1.7 The Issuer hereby represents and warrants to the Dealer, in
connection with offers, sales and resales of Notes, as follows:
(a) Issuer hereby confirms to the Dealer that (except as
permitted by Section 1.6(i)) within the preceding six months neither
the Issuer nor any person other than the Dealer or the other dealers
referred to in Section 1.2 hereof acting on behalf of the Issuer has
offered or sold any Notes, or any substantially similar security of
the Issuer (including, without limitation, medium-term notes issued
by the Issuer), to, or solicited offers to buy any such security
from, any person other than the Dealer or the other dealers referred
to in Section 1.2 hereof. The Issuer also agrees that (except as
permitted by Section 1.6(i)), as long as the Notes are being offered
for sale by the Dealer and the other dealers referred to in Section
1.2 hereof as contemplated hereby and until at least six months after
the offer of Notes hereunder has been terminated, neither the Issuer
nor any person other than the Dealer or the other dealers referred to
in Section 1.2 hereof (except as contemplated by Section 1.2 hereof)
will offer the Notes or any substantially similar security of the
Issuer for sale to, or solicit offers to buy any such security from,
any person other than the Dealer or the other dealers referred to in
Section 1.2 hereof, it being understood that such agreement is made
with a view to bringing the offer and sale of the Notes within the
exemption provided by Section 4(2) of the Securities Act and Rule 506
thereunder and shall survive any termination of this Agreement. The
Issuer hereby represents and warrants that it has not taken or
omitted to take, and will not take or omit to take, any action that
would cause the offering and sale of Notes hereunder to be integrated
with any other offering of securities, whether such offering is made
by the Issuer or some other party or parties.
(b) In the event that the Dealer purchases Notes as
principal and does not resell such Notes on the day of such purchase,
to the extent necessary to comply with Regulation T and the
interpretations thereunder, the Dealer will sell such Notes either
(i) only to offerees it reasonably believes to be QIBs or to QIBs it
reasonably believes are acting for other QIBs, in each case in
accordance with Rule 144A or (ii) in a manner which would not cause a
violation of Regulation T and the interpretations thereunder.
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Section 2. Representations and Warranties of Issuer.
The Issuer represents and warrants that:
2.1 The Issuer is a corporation duly incorporated, validly existing
and in good standing under the laws of the jurisdiction of its incorporation and
has all the requisite corporate power and authority to execute, deliver and
perform its obligations under the Notes, this Agreement and the Issuing and
Paying Agency Agreement.
2.2 This Agreement and the Issuing and Paying Agency Agreement have
been duly authorized, executed and delivered by the Issuer and constitute legal,
valid and binding obligations of the Issuer enforceable against the Issuer in
accordance with their terms, subject to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally, and subject, as to
enforceability, to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law) and except insofar as
rights to indemnification and contribution may be limited by applicable law.
2.3 The Notes have been duly authorized, and when issued as provided
in the Issuing and Paying Agency Agreement, will be duly and validly issued and
will constitute legal, valid and binding obligations of the Issuer enforceable
against the Issuer in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors' rights generally,
and subject, as to enforceability, to general principles of equity (regardless
of whether enforcement is sought in a proceeding in equity or at law).
2.4 The offer and sale of Notes in the manner contemplated hereby do
not require registration of the Notes under the Securities Act, pursuant to the
exemption from registration contained in Section 4(2) thereof and Regulation D
thereunder, and no indenture in respect of the Notes is required to be qualified
under the Trust Indenture Act of 1939, as amended.
2.5 The Notes will rank at least pari passu with all other unsecured
and unsubordinated indebtedness of the Issuer.
2.6 Except as provided in Section 1.6(j), no consent or action of, or
filing or registration with, any governmental or public regulatory body or
authority, including the SEC, is required to be obtained by the Issuer to
authorize, or is otherwise required to be obtained by the Issuer in connection
with the execution, delivery or performance of, this Agreement, the Notes or the
Issuing and Paying Agency Agreement, except as may be required by the securities
or Blue Sky laws of the various states in connection with the offer and sale of
the Notes.
2.7 Neither the execution and delivery of this Agreement and the
Issuing and Paying Agency Agreement, nor the issuance of the Notes in accordance
with the Issuing and Paying Agency Agreement, nor the fulfillment of or
compliance with the terms and provisions hereof or thereof by the Issuer, will
(i) result in the creation or imposition of any mortgage, lien, charge or
encumbrance of any nature whatsoever upon any of the properties or assets of the
Issuer, or (ii) violate or result in a breach or a default under any of the
terms of the Issuer's charter documents
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or by-laws, any contract or instrument to which the Issuer is a party or by
which it or its property is bound, or any law or regulation, or any order, writ,
injunction or decree of any court or government instrumentality, to which the
Issuer is subject or by which it or its property is bound, which breach or
default might reasonably be expected to have a material adverse effect on the
financial condition, operations or prospective financial condition of the Issuer
or the ability of the Issuer to perform its obligations under this Agreement,
the Notes or the Issuing and Paying Agency Agreement.
2.8 There is no litigation or governmental proceeding pending, or to
the knowledge of the Issuer threatened, against or affecting the Issuer or any
of its subsidiaries which might reasonably be expected to result in a material
adverse change in the financial condition, operations or prospective financial
condition of the Issuer or the ability of the Issuer to perform its obligations
under this Agreement, the Notes or the Issuing and Paying Agency Agreement.
2.9 The Issuer is not an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
2.10 Neither the Private Placement Memorandum nor the Company
Information contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, providing that the Issuer makes no representation or warranty as to
Dealer Information.
2.11 Each (a) issuance of Notes by the Issuer hereunder and (b)
amendment or supplement of the Private Placement Memorandum shall be deemed a
representation and warranty by the Issuer to the Dealer, as of the date thereof,
that, both before and after giving effect to such issuance and after giving
effect to such amendment or supplement, (i) the representations and warranties
given by the Issuer set forth above in this Section 2 remain true and correct on
and as of such date as if made on and as of such date, (ii) in the case of an
issuance of Notes, the Notes being issued on such date have been duly and
validly issued and constitute legal, valid and binding obligations of the
Issuer, enforceable against the Issuer in accordance with their terms, subject
to applicable bankruptcy, insolvency and similar laws affecting creditors'
rights generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity or
at law) and (iii) in the case of an issuance of Notes, since the date of the
most recent Private Placement Memorandum, there has been no material adverse
change in the financial condition, operations or prospective financial condition
of the Issuer which has not been disclosed in the Company Information.
Section 3. Covenants and Agreements of Issuer.
The Issuer covenants and agrees that:
3.1 The Issuer will give the Dealer prompt notice (but in any event
prior to any subsequent issuance of Notes hereunder) of any amendment to,
modification of or waiver with respect to, the Notes or the Issuing and Paying
Agency Agreement, including a complete copy of
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any such amendment, modification or waiver.
3.2 The Issuer shall, whenever there shall occur any change in the
Issuer's financial condition, operations or prospective financial condition or
any development or occurrence in relation to the Issuer that would be material
to holders of the Notes or potential holders of the Notes (including any
downgrading or receipt of any notice of intended or potential downgrading or any
review for potential change in the rating accorded any of the Issuer's
securities by any nationally recognized statistical rating organization which
has published a rating of the Notes), promptly, and in any event prior to any
subsequent issuance of Notes hereunder, notify the Dealer (by telephone,
confirmed in writing) of such change, development or occurrence.
3.3 The Issuer shall from time to time furnish to the Dealer such
information as the Dealer may reasonably request, including, without limitation,
any press releases or material provided by the Issuer to any national securities
exchange or rating agency, regarding (i) the Issuer's operations and financial
condition, (ii) the due authorization and execution of the Notes and (iii) the
Issuer's ability to pay the Notes as they mature.
3.4 The Issuer will take all such action as the Dealer may reasonably
request to ensure that each offer and each sale of the Notes will comply with
any applicable state Blue Sky laws; provided, however, that the Issuer shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified or
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject.
3.5 The Issuer shall not issue Notes hereunder until the Dealer shall
have received (a) an opinion of counsel to the Issuer, addressed to the Dealer,
satisfactory in form and substance to the Dealer, (b) a copy of the executed
Issuing and Paying Agency Agreement as then in effect, (c) a copy of resolutions
adopted by the Board of Directors of the Issuer, satisfactory in form and
substance to the Dealer and certified by the Secretary, an Assistant Secretary
or similar officer of the Issuer, authorizing execution and delivery by the
Issuer of this Agreement, the Issuing and Paying Agency Agreement and the Notes
and consummation by the Issuer of the transactions contemplated hereby and
thereby, (d) prior to the issuance of any Notes represented by a book-entry note
registered in the name of DTC or its nominee, a copy of the executed Letter of
Representations among the Issuer, the Issuing and Paying Agent and DTC and (e)
such other certificates, opinions, letters and documents as the Dealer shall
have reasonably requested.
3.6 The Issuer shall reimburse the Dealer for all of the Dealer's
out-of-pocket expenses related to this Agreement, including expenses incurred in
connection with its preparation and negotiation, and the transactions
contemplated hereby (including, but not limited to, the printing and
distribution of the Private Placement Memorandum), and, if applicable, for the
reasonable fees and out-of-pocket expenses of the Dealer's counsel, not to
exceed $5,000.
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Section 4. Disclosure.
4.1 The Private Placement Memorandum and its contents (other than the
Dealer Information) shall be the sole responsibility of the Issuer. The Private
Placement Memorandum shall contain a statement expressly offering an opportunity
for each prospective purchaser to ask questions of, and receive answers from,
the Issuer concerning the offering of Notes and to obtain relevant additional
information which the Issuer possesses or can acquire without unreasonable
effort or expense.
4.2 The Issuer agrees to promptly furnish the Dealer the Company
Information as it becomes publicly available.
4.3 (a) The Issuer further agrees to notify the Dealer promptly upon
the occurrence of any event relating to or affecting the Issuer that would cause
the Company Information then in existence to include an untrue statement of a
material fact or to omit to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances under which they are
made, not misleading.
(b) In the event that the Issuer gives the Dealer notice pursuant to
Section 4.3(a) and the Dealer notifies the Issuer that it then has Notes it is
holding in inventory, (i) the Issuer agrees promptly to supplement or amend the
Private Placement Memorandum so that the Private Placement Memorandum, as
amended or supplemented, shall not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and the Issuer shall make such supplement or amendment available to
the Dealer, or (ii) if the Issuer chooses not to promptly amend or supplement
the Private Placement Memorandum, the Dealer shall have the right to resell to
the Issuer any such Notes held in inventory at a price equal to (a) the
principal amount thereof plus accrued and unpaid interest thereon, in the case
of an interest-bearing Note, or (b) the face amount thereof discounted on a
ratable basis based on the Issuer's market rate reflecting the remaining period
until maturity in relation to the original term, in the case of such Note issued
on a discount basis.
(c) In the event that (i) the Issuer gives the Dealer notice pursuant
to Section 4.3(a), (ii) the Dealer does not notify the Issuer that it is then
holding Notes in inventory and (iii) the Issuer chooses not to promptly amend or
supplement the Private Placement Memorandum in the manner described in clause
(b) above, then all solicitations and sales of Notes shall be suspended until
such time as the Issuer has so amended or supplemented the Private Placement
Memorandum, and made such amendment or supplement available to the Dealer.
Section 5. Indemnification and Contribution.
5.1 The Issuer will indemnify and hold harmless the Dealer, each
individual, corporation, partnership, trust, association or other entity
controlling the Dealer, any affiliate of the Dealer or any such controlling
entity and their respective directors, officers, employees, partners,
incorporators, shareholders, servants, trustees and agents (hereinafter the
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"Indemnitees") against any and all liabilities, penalties, suits, causes of
action, losses, damages, claims, costs and expenses (including, without
limitation, fees and disbursements of counsel) or judgments of whatever kind or
nature (each a "Claim"), imposed upon, incurred by or asserted against the
Indemnitees arising out of or based upon (i) any allegation that the Private
Placement Memorandum, the Company Information or any written information
provided by the Issuer to the Dealer included (as of any relevant time) or
includes an untrue statement of a material fact or omitted (as of any relevant
time) or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading or (ii) arising out of or based upon the breach by the Issuer of any
agreement, covenant or representation made in or pursuant to this Agreement.
This indemnification shall not apply to the extent that the Claim arises out of
or is based upon Dealer Information or the Dealer's gross negligence or willful
misconduct.
5.2 Provisions relating to claims made for indemnification under this
Section 5 are set forth on Exhibit B to this Agreement.
5.3 In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 5 is
held to be unavailable or insufficient to hold harmless the Indemnitees,
although applicable in accordance with the terms of this Section 5, the Issuer
shall contribute to the aggregate costs incurred by the Dealer in connection
with any Claim in the proportion of the respective economic interests of the
Issuer and the Dealer; provided, however, that such contribution by the Issuer
shall be in an amount such that the aggregate costs incurred by the Dealer do
not exceed the aggregate of the commissions and fees earned by the Dealer
hereunder with respect to the issue or issues of Notes to which such Claim
relates. The respective economic interests shall be calculated by reference to
the aggregate proceeds to the Issuer of the Notes issued hereunder and the
aggregate commissions and fees earned by the Dealer hereunder.
Section 6. Definitions.
6.1 "Claim" shall have the meaning set forth in Section 5.1.
6.2 "Company Information" at any given time shall mean the Private
Placement Memorandum (other than the Dealer Information) together with, to the
extent applicable, (i) the Issuer's most recent report on Form 10-K filed with
the SEC and each report on Form 10-Q or 8-K filed by the Issuer with the SEC
since the most recent Form 10-K, (ii) the Issuer's most recent annual audited
financial statements and each interim financial statement or report prepared
subsequent thereto, if not included in item (i) above, (iii) the Issuer's other
publicly available reports, including, but not limited to, any publicly
available filings or reports provided to its shareholders, (iv) any other
information or disclosure prepared pursuant to Section 4.3 hereof and (v) any
information prepared or approved by the Issuer for dissemination to investors or
potential investors in the Notes.
6.3 "Dealer Information" shall mean material concerning the Dealer
provided by the Dealer in writing expressly for inclusion in the Private
Placement Memorandum.
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6.4 "DTC" shall mean The Depository Trust Company.
6.5 "Exchange Act" shall mean the U.S. Securities Exchange Act of
1934, as amended.
6.6 "Indemnitee" shall have the meaning set forth in Section 5.1.
6.7 "Institutional Accredited Investor" shall mean an institutional
investor that is an accredited investor within the meaning of Rule 501 under the
Securities Act and that has such knowledge and experience in financial and
business matters that it is capable of evaluating and bearing the economic risk
of an investment in the Notes, including, but not limited to, a bank, as defined
in Section 3(a)(2) of the Securities Act, or a savings and loan association or
other institution, as defined in Section 3(a)(5)(A) of the Securities Act,
whether acting in its individual or fiduciary capacity.
6.8 "Issuing and Paying Agency Agreement" shall mean the issuing and
paying agency agreement described on the cover page of this Agreement, as such
agreement may be amended or supplemented from time to time.
6.9 "Issuing and Paying Agent" shall mean the party designated as
such on the cover page of this Agreement, as issuing and paying agent under the
Issuing and Paying Agency Agreement, or any successor thereto in accordance with
the Issuing and Paying Agency Agreement.
6.10 "Non-bank fiduciary or agent" shall mean a fiduciary or agent
other than (a) a bank, as defined in Section 3(a)(2) of the Securities Act, or
(b) a savings and loan association, as defined in Section 3(a)(5)(A) of the
Securities Act.
6.11 "Private Placement Memorandum" shall mean offering materials
prepared in accordance with Section 4 (including materials referred to therein
or incorporated by reference therein) provided to purchasers and prospective
purchasers of the Notes, and shall include amendments and supplements thereto
which may be prepared from time to time in accordance with this Agreement (other
than any amendment or supplement that has been completely superseded by a later
amendment or supplement).
6.12 "Qualified Institutional Buyer" shall have the meaning assigned
to that term in Rule 144A under the Securities Act.
6.13 "Regulation D" shall mean Regulation D (Rules 501 et seq.) under
the Securities Act.
6.14 "Rule 144A" shall mean Rule 144A under the Securities Act.
6.15 "SEC" shall mean the U.S. Securities and Exchange Commission.
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6.16 "Securities Act" shall mean the U.S. Securities Act of 1933, as
amended.
6.17 "Sophisticated Individual Accredited Investor" shall mean an
individual who (a) is an accredited investor within the meaning of Regulation D
under the Securities Act and (b) based on his or her pre-existing relationship
with the Dealer, is reasonably believed by the Dealer to be a sophisticated
investor (i) possessing such knowledge and experience (or represented by a
fiduciary or agent possessing such knowledge and experience) in financial and
business matters that he or she is capable of evaluating and bearing the
economic risk of an investment in the Notes and (ii) having a net worth of at
least $5 million.
Section 7. General
7.1 Unless otherwise expressly provided herein, all notices under
this Agreement to parties hereto shall be in writing and shall be effective when
received at the address of the respective party set forth in the Addendum to
this Agreement.
7.2 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to its conflict of laws
provisions.
7.3 The Issuer agrees that any suit, action or proceeding brought by
the Issuer against the Dealer in connection with or arising out of this
Agreement or the Notes or the offer and sale of the Notes shall be brought
solely in the United States federal courts located in the Borough of Manhattan
or the courts of the State of New York located in the Borough of Manhattan. EACH
OF THE DEALER AND THE ISSUER WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT,
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
7.4 This Agreement may be terminated, at any time, by the Issuer,
upon one business day's prior notice to such effect to the Dealer, or by the
Dealer upon one business day's prior notice to such effect to the Issuer. Any
such termination, however, shall not affect the obligations of the Issuer under
Sections 3.7, 5 and 7.3 hereof or the respective representations, warranties,
agreements, covenants, rights or responsibilities of the parties made or arising
prior to the termination of this Agreement.
7.5 This Agreement is not assignable by either party hereto without
the written consent of the other party; provided, however, that the Dealer may
assign its rights and obligations under this Agreement to any affiliate of the
Dealer.
7.6 This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
7.7 This Agreement is for the exclusive benefit of the parties
hereto, and their respective permitted successors and assigns hereunder, and
shall not be deemed to give any legal
13
or equitable right, remedy or claim to any other person whatsoever.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date and year first above written.
NATIONAL SERVICE INDUSTRIES, INC., AS ISSUER
By: /s/ XXXXXXX X. XXXXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
WACHOVIA SECURITIES, INC., AS DEALER
By: /s/ XXXXXXX X. XXXXXX
-----------------------------------------
Authorized Signatory
