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Exhibit (b)(7)
ISSUING AND PAYING AGENT AGREEMENT
This Issuing and Paying Agency Agreement (the "Agreement"), dated as of July 16,
1999, between National Service Industries, Inc. (Issuer), a Delaware corporation
(the "Issuer") and The First National Bank of Chicago, a national banking
association ("FNBC"), as issuing and paying agent, in connection with the
issuance and payment, in book entry only form, of certain commercial paper notes
(collectively the "Notes"). The Issuer hereby appoints FNBC its agent to issue,
deliver and pay such Notes as herein set forth. FNBC has advised the Issuer that
it has arranged for First Chicago Trust Company of New York ("FCTC" or the
"Sub-Agent") to act as its sub-agent for certain purposes of this Agreement, and
the Issuer hereby agrees to the use of such Sub-Agent. The Issuer hereby agrees
with FNBC as follows:
1. Authorization.
The Issuer shall enclose herewith an incumbency certificate in
substantially the form of Exhibit A hereto (the "Incumbency
Certificate") of the Secretary or an Assistant Secretary of the Issuer,
certifying the incumbency and specimen signatures of officers,
employees and other agents of the Issuer authorized to execute Notes
and to act and to give instructions and notice with respect to Notes on
behalf of the Issuer (hereinafter "Issuer Agents"). Until FNBC receives
a subsequent Incumbency Certificate from the Issuer, FNBC may rely on
the last such Incumbency Certificate delivered to it. Any Note bearing
the signature of an Issuer Agent on the date such signature is affixed
thereto shall bind the Issuer after the authentication and delivery of
such Note even if such person shall have ceased to hold his or her
office on the date such Note is authenticated and delivered.
2. Notes.
A. The Notes shall be issued to The Depository Trust Company
("DTC"), or its nominee in substantially the forms set forth
in Exhibit B, as appropriate. In connection with the issuance
of Notes, (i) FNBC has previously entered into a commercial
paper certificate agreement ("Certificate Agreement") with DTC
and (ii) FNBC and the Issuer shall jointly execute a letter of
representations ("Representation Letter") to DTC. The Issuer
understands and acknowledges that the execution of the
Certificate Agreement by FNBC is a necessary prerequisite to
the provision of book entry services under this Agreement and
as such, the Issuer agrees, (x) to be bound by the provisions
of the Certificate Agreement and (y) that the Certificate
Agreement shall supplement the provisions of this Agreement. A
copy of the Certificate Agreement and the Representation
Letter are attached hereto as Exhibit C and Exhibit D,
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respectively.
B. Prior to 12:00 p.m. (Chicago time) on each issuance date, an
Issuer Agent or any dealer or placement agent appointed as
confirmed in writing to FNBC by the Issuer (each a "Dealer")
shall provide FNBC with instructions specifying the issue
date, interest rate (if applicable), maturity date (which
shall be no later than 366 days from the date of issuance
thereof), proceeds, principal amount, maturity amount, payee
and payee's settlement bank (which bank must be a participant
in the DTC book entry commercial paper program) ("Issuance
Instructions").
C. Following receipt of Issuance Instructions, FNBC will process
such Issuance Instructions in accordance with and subject to
(i) this Agreement, (ii) the procedures set forth in the DTC
Commercial Paper Issuing/Paying Agent Manual ("Manual") and
the Rules of The Depository Trust Company contained therein,
including without limitation, the DTC Same Day Funds
Settlement System, Money Market Instruments Program
(collectively, "Rules") and (iii) the terms and conditions of
the Certificate Agreement. Unless otherwise instructed by an
Issuer Agent or the Dealer, Notes delivered under this
Agreement shall be made against payment as more fully set
forth in Section 3 below. In the event of a conflict between
the terms of this Agreement and the terms of the Manual, the
Certificate Agreement or the Rules, the provisions of this
Agreement shall control.
3. Proceeds of Sale of Notes.
A. The Issuer understands that when FNBC is instructed to deliver
against payment, the processing of Issuance Instructions may
not be completed simultaneously against the receipt of
payment. Accordingly, FNBC and the Sub-Agent are each hereby
authorized to initiate delivery and to receive payment from
the purchaser in accordance with the provisions of the Manual
and the Rules. All such payments shall be received for credit
to the Note Account (as that term is defined in paragraph 5
below). The Issuer hereby agrees to bear the risk that FNBC
fails to receive payment of the purchase price of any Notes
issued pursuant to Issuance Instructions.
B. Funds received by FNBC in payment of the Note(s) ("Proceeds")
will be credited to the Note Account. Prior to the time that
such Proceeds are received, FNBC may, but shall not be
obligated to, advance the Issuer an amount less than or equal
to the anticipated Proceeds (an "Advance"). Upon telephonic,
written (which may be in facsimile form), or electronic
instructions received by FNBC from an Issuer Agent, an Advance
may be (i) used in payment of Notes
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presented for payment upon maturity, (ii) deposited by FNBC in
an account of the Issuer maintained at FNBC, or (iii)
transferred to the account of the Issuer at another bank. If
FNBC, in its sole discretion, makes an Advance, the Issuer
agrees to apply the Proceeds to repay such Advance; if such
Proceeds are insufficient to repay the Advance in full, the
Issuer agrees to repay such Advance within 24 hours from the
time such advance was made. Interest on any Advance shall
accrue from the day such Advance is made, and shall bear
interest as described in FNBC's standard fee schedule, a copy
of which shall be provided to Issuer from time to time.
4. Instructions.
A. In addition to and not by way of limiting FNBC's authority or
the authority of the Sub-Agent or any other person acting on
its behalf to act on receipt of and in accordance with written
instructions, the Issuer hereby authorizes FNBC and any person
acting on its behalf, to act in accordance with Issuance
Instructions received by FNBC or such person from an Issuer
Agent or the Dealer, as provided in the following Sections
4.B. and 4.C.
B. The Issuer or the Dealer may initiate Issuance Instructions
electronically if it enters into a nonexclusive,
nontransferable license agreement in a form specified by FNBC
to use certain software products and associated printed
documentation pursuant to a separate license agreement. FNBC
shall be entitled to rely on the Issuance Instructions
received electronically hereunder and, in the absence of
actual knowledge to the contrary, may assume that all such
Issuance Instructions were transmitted by the Issuer or on the
Issuer's behalf, regardless of by whom they were actually
transmitted.
C. Telephonic Issuance Instructions shall be given to FNBC by an
Issuer Agent or the Dealer at the telephone number specified
by FNBC from time to time for such purpose, and shall be
expressed to be for the attention of any of FNBC's or FCTC's
officers or employees whose name has been specified for such
purpose by FNBC to the Issuer. Telephonic Issuance
Instructions to FNBC by an Issuer Agent or the Dealer shall be
confirmed in writing by an Issuer Agent or the Dealer within
24 hours of the time such instruction is received by FNBC or
on its behalf; provided that, in the event a discrepancy
exists between the Telephonic Issuance Instructions and the
subsequent written confirmation, or in the absence of
receiving a written confirmation prior to the time specified
in Sections 2.B. above, the Telephonic Issuance Instructions
shall be deemed the proper and controlling Issuance
Instructions and FNBC shall incur no liability for acting in
accordance with any such Telephonic Issuance Instructions
reasonably believed by it in good faith to have been given by
an Issuer Agent or
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the Dealer. A "written confirmation" may be effected by means
of communications directly between electro-mechanical or
electronic devices or systems, including transmission by
telecopier.
5. Note Account.
A. For purposes of the transactions contemplated herein, the
Issuer shall open and maintain with FNBC a demand deposit
account (No. 10-14661) (the "Note Account").
B. Deposits will be made to the Note Account from time to time by
or on behalf of the Issuer by delivery to FNBC of funds to be
deposited therein. All Proceeds shall be credited to the Note
Account. Withdrawals or other uses of the funds from the Note
Account shall be made in accordance with instructions from an
Issuer Agent or to repay amounts payable under Sections 3.B.
or 6.D. hereof. Notwithstanding anything in this Agreement to
the contrary, FNBC shall not be obligated (i) to permit any
withdrawal or other use of funds from the Note Account, or
(ii) to honor any instructions to those effects, if FNBC, in
its sole discretion, shall determine that as a result there
would be an overdraft or negative balance in respect of final
credits (whether in the course of any day, overnight or
otherwise) in the Note Account.
6. Payment of Notes.
A. FNBC hereby agrees to serve as paying agent of the Issuer with
respect to each of the Notes presented to FNBC, FCTC or DTC
pursuant to this Agreement, the Manual or the Rules. The
Issuer shall on the stated maturity date of such Notes, or, if
such maturity date is not a Business Day (as hereinafter
defined), on the next succeeding Business Day (such maturity
date or next succeeding Business Day, as the case may be,
being hereinafter referred to as the "Maturity Date"), deposit
or cause to be deposited in the Note Account by 9:00 a.m.
Chicago time an amount in immediately available funds equal to
the maturity amount of such Notes, or if applicable, the
principal plus interest payable thereon. As used herein
"Business Day" means any day excluding Saturday, Sunday and
any day which is a legal holiday under the laws of the States
of Illinois or New York or is a day on which banking
institutions located in either of such states are authorized
by law or other governmental action to close.
B. FNBC is hereby authorized and instructed by the Issuer, to the
extent that funds sufficient to effect such payment are
available in the Note Account, to pay, and shall pay, each of
the Notes upon presentation thereof. FNBC is further hereby
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authorized and instructed by the Issuer to debit the Note
Account in the amount of each such payment.
C. If at any time funds in the Note Account are insufficient to
cover payment of any matured Notes presented to FNBC, FCTC or
DTC prior to 2:00 p.m. (Chicago time) on the Maturity Date of
such Notes, FNBC may, but shall not be obligated to, pay the
Notes thus creating an overdraft for the account of the
Issuer, which overdraft shall be charged to the Note Account.
D. The amount of any resulting overdraft shall represent an
Advance by FNBC to the Issuer to be promptly repaid by the
Issuer together with any applicable overdraft charges and
interest on such advance for each day such advance remains
outstanding in accordance with Section 3.B.
E. Notwithstanding anything to the contrary herein, if at any
time funds in the Note Account are insufficient to cover
payment of all matured Notes presented for and awaiting
payment, FNBC may apply such funds to the extent available to
pay any of the Notes, either fully or in part, as FNBC deems
appropriate.
7. Representations and Warranties.
Each day on which an Issuance Instruction is given to FNBC, the Issuer
shall be deemed to represent and warrant to FNBC that (a) the issuance
and delivery of the designated Notes will not violate any state or
federal securities law applicable to the Issuer, (b) the Notes have
been duly and validly authorized by the Issuer and (c) the Notes, when
issued and delivered pursuant hereto, will constitute the legal, valid,
and binding obligations of the Issuer, 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).
8. Indemnification; Liabilities.
A. The Issuer shall indemnify FNBC, the Sub-Agent and their
respective officers, directors, employees and agents, and hold
the indemnified persons harmless from and against any and all
costs, expenses, claims or liabilities (including, without
limitation, reasonable lawyers' fees) arising out of or
connected with the performance of each indemnified person's
duties hereunder, except for costs, expenses, claims or
liabilities arising out of the gross negligence or willful
misconduct of an indemnified person. FNBC shall indemnify the
Issuer, and its officers, directors, employees and agents, and
hold each of them
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harmless from and against any and all costs, expenses, claims
or liabilities (including, without limitations, reasonable
lawyer's fees) arising out of or connected with its gross
negligence or willful misconduct. Each indemnified person may
rely and shall be protected in acting upon any resolution,
certificate, opinion, instructions (whether oral or
otherwise), receipt, or other document reasonably believed by
such indemnified person to be (i) genuine and (ii) to have
been signed or given by the proper party or parties.
B. In acting with respect to the Notes, and generally in acting
under the provisions hereof, FNBC will be required by the
Issuer to perform only such duties as are specifically set
forth herein and this Agreement shall not be construed to
subject FNBC to any implied covenants or obligations. Except
in the case of FNBC's gross negligence or willful misconduct,
FNBC shall not be liable to the Issuer for any action taken or
omitted by FNBC and reasonably believed by FNBC to be
authorized or within the powers conferred upon FNBC hereby. In
no event shall FNBC be liable for consequential, indirect or
special damages, even if FNBC has been advised of the
possibility of such damages. FNBC shall also not be liable for
any action taken, or any failure to take any action in
connection with this Agreement or the services provided
hereunder or otherwise to fulfill its obligations in
connection with this Agreement, in the event and to the extent
that the taking of such action or such failure arises out of
or is caused by mechanical breakdown, computer or system
failure or other failure of equipment, failure or
malfunctioning of any communications media for whatever
reason, or any other cause outside of the control of FNBC,
provided that FNBC undertakes to use reasonable efforts to
cure any such failure or breakdown of FNBC or FCTC equipment.
It is understood by the Issuer that provision of services
under this Agreement is dependent upon the availability to
FNBC and the Issuer of telecommunication facilities provided
by third party vendors and that FNBC does not warrant such
availability.
9. Miscellaneous.
A. FNBC or the Issuer may terminate this Agreement upon ten (10)
days' prior written notice to the other party; provided,
however, that to the extent there are then outstanding any
Notes, notwithstanding such termination they shall remain
valid obligations of the Issuer and shall continue to be
subject to the provisions of this Agreement and, provided
further, that no termination of this Agreement shall affect
the rights and obligations of the parties hereto with respect
to transactions initiated prior to such termination. In the
event that FNBC shall give the Issuer notice of termination,
the Issuer shall not issue on or after the date of such notice
any Notes having a maturity in excess of thirty (30) days.
B. The fees for FNBC's services hereunder shall be as mutually
agreed upon in
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writing between FNBC and the Issuer, which are initially set
forth as Exhibit E, and shall be payable by the Issuer in
accordance with such agreement.
C. No amendment or modification of this Agreement shall be
effective unless the same shall be in writing and signed by
both of the parties hereto. No waiver of, nor any consent to
any departure from, any provision of this Agreement shall be
effective unless signed by the party intended to be bound. No
such amendment, modification, waiver or consent shall
adversely affect the rights of any holder of Notes outstanding
at the time of such amendment, modification, waiver or
consent.
D. Except as otherwise provided herein, FNBC may execute any of
the powers hereunder or perform any duties hereunder either
directly or by or through agents, including, without
limitation, the Sub-Agent, or attorneys and shall not be
responsible for the acts of such agents (other than FCTC) or
attorneys appointed with due care hereunder, unless caused by
the negligence or lack of good faith of FNBC.
E. FNBC may consult with legal counsel regarding matters arising
under this Agreement and shall not be liable for any action
taken in good faith in reliance upon the advice of such
counsel, provided that such counsel is selected with due care.
F. The Issuer acknowledges the interest of DTC in Notes and Note
Certificates as provided in the Certificate Agreement.
G. FNBC, in its individual or any other capacity, may become the
owner or pledgee of Notes with the same rights FNBC would have
if FNBC were not acting hereunder.
H. FNBC shall be under no liability for interest on any moneys
received by FNBC hereunder except such as FNBC may agree with
the Issuer to pay thereon, and need not segregate such moneys
except as may be required by law.
I. Nothing in this Agreement constitutes a commitment or
obligation of FNBC to extend any credit to the Issuer, nor
shall any course of dealing between the Issuer and FNBC be
deemed to be, or constitute, any such commitment or
obligation.
J. Except as otherwise expressly provided herein, whenever, in
the administration of this Agreement, FNBC shall deem it
necessary that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein
specifically
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prescribed) may be deemed to be conclusively proved and
established by a certificate or written instructions of an
Issuer Agent and such certificate or written instructions
shall be full warranty to FNBC for any action taken, suffered,
or omitted under the provisions of this Agreement in reliance
upon such certificate or written instructions.
K. Any banking association or corporation into which FNBC may be
merged, converted or with which FNBC may be consolidated, or
any corporation resulting from any merger, conversion or
consolidation to which FNBC shall be a party, shall succeed to
all FNBC's rights, obligations and immunities hereunder
without the execution or filing of any paper or any further
act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding.
L. FNBC's countersignature of a Note shall be for authentication
purposes only. Neither FNBC nor the Sub-Agent shall have any
liability on any Notes. Except with respect to FNBC's own
actions in issuing and delivering Notes pursuant to Issuance
Instructions, FNBC shall not be liable for the authorization,
validity or legality of any Notes delivered by FNBC in
accordance with Issuance Instructions.
10. Notices.
Any notices, demands, instructions and other communications required or
permitted to be given or made upon either party shall be in writing and
shall be personally delivered or sent by first class mail, postage
prepaid (or telecopier, as permitted hereunder), and shall be effective
for purposes of this Agreement upon receipt by the intended recipient
thereof at the address designated by such recipient, or on the next
succeeding Business Day if received on other than a Business Day.
Unless otherwise specified in a notice sent or delivered in accordance
with the foregoing provisions of this paragraph (or with respect to
Issuance Instructions, as permitted hereunder), notices, demands,
instructions and other communications in writing shall be addressed as
indicated below:
If to FNBC in its capacity The First National Bank of Chicago
as agent hereunder: Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxx 0000, 0XX-0
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Commercial Paper Client Services
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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If to the Issuer: National Service Industries, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attn: Treasury Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
11. Assignment.
Neither party hereto may assign any of its rights or obligations
hereunder without the consent of the other party hereto.
12. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAW OF THE STATE OF ILLINOIS (EXCLUDING ITS CONFLICTS OF
LAWS RULES).
13. Entire Agreement.
This Agreement, together with the Certificate Agreement, Representation
Letter, Manual and Rules, constitutes the entire agreement between FNBC
and the Issuer relating to the subject matter hereof, and supersedes
all proposals and all other communications between the parties relating
hereto.
14. Counterparts.
This Agreement may be executed in any number of counterparts and by
each party hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and
all of which counterparts taken
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together shall constitute one and the same Agreement.
NATIONAL SERVICE INDUSTRIES, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
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Name: Xxxxxxx X. Xxxxxxxxx
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Title: Vice President and Treasurer
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THE FIRST NATIONAL BANK OF CHICAGO,
as Issuing and Paying Agent
By: /s/ XXXXX XXXX
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Name: Xxxxx Xxxx
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Title: Corporate Account Executive
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