EXHIBIT 1.1
IKON RECEIVABLES LLC
$ 304,474,000 - 5.11% Class A-1 Lease-Backed Notes, Series 1999-1
$ 61,579,000 - 5.60% Class A-2 Lease-Backed Notes, Series 1999-1
$ 304,127,000 - 5.99% Class A-3 Lease-Backed Notes, Series 1999-1
$ 81,462,000 - 6.23% Class A-4 Lease-Backed Notes, Series 1999-1
UNDERWRITING AGREEMENT
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May 19, 1999
XXXXXX BROTHERS INC.,
as Representative for the Underwriters
3 World Financial Center
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
IKON Receivables LLC, a limited liability company organized and
existing under the laws of Delaware (the "Issuer"), IKON Receivables-1 LLC, a
limited liability company organized and existing under the laws of Delaware (the
"Seller"), and IOS Capital, Inc., a corporation organized and existing under the
laws of Delaware ("IOS Capital"), hereby agree with you as follows:
Section 1. Issuance and Sale of Notes. The Issuer has authorized
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the issuance of $304,474,000 of 5.11% Class A-1 Lease-Backed Notes, Series 1999-
1 (the "Class A-1 Notes"); $61,579,000 of 5.60% Class A-2 Lease-Backed Notes,
Series 1999-1 (the "Class A-2 Notes"); $304,127,000 of 5.99% Class A-3 Lease-
Backed Notes, Series 1999-1 (the "Class A-3 Notes"); and $81,462,000 of 6.23%
Class A-4 Lease-Backed Notes, Series 1999-1 (the "Class A-4 Notes"; together
with the Class A-1 Notes, Class A-2 Notes and Class A-3 Notes, the "Notes"). The
Notes will be issued pursuant to an Indenture, dated as of April 1, 1999 (the
"Indenture"), among the Issuer, IOS Capital, as Servicer, and Xxxxxx Trust and
Savings Bank (the "Trustee"). The Notes are more fully described in the Final
Prospectus (as defined below), a copy of which the Issuer is furnishing to you.
The Notes will evidence secured debt obligations of the Issuer. The assets of
the Issuer will include a pool of primarily office equipment lease contracts,
including certain payments due thereunder (the "Leases"), and the Issuer's
interest in the underlying equipment (the "Equipment"). The Notes will be
entitled to the benefits of a financial guaranty insurance policy issued by
Ambac Assurance Corporation ("Ambac") in accordance with the terms of an
Insurance and Indemnity Agreement among Ambac,
the Issuer, the Seller, IOS Capital and the Trustee (the "Insurance Agreement").
Capitalized terms used and not defined herein shall have the meanings specified
in the Indenture.
The Notes will be sold by the Issuer to the Underwriters in the
amounts set forth on Schedule A hereto.
The terms which follow, when used in this Underwriting Agreement (this
"Agreement"), shall have the meanings indicated:
"Base Prospectus" means the prospectus included in the
Registration Statement.
"Effective Date" means each date that the Registration Statement
and any post-effective amendment or amendments thereto became or become
effective under the Securities Act.
"Execution Time" means the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" means the Base Prospectus together with any
prospectus supplement delivered to purchasers of the Notes at or before the
time of confirmation of their purchases.
"Preliminary Prospectus" means any preliminary prospectus
supplement specifically relating to the Notes, together with the Base
Prospectus.
"Registration Statement" means the registration statement on Form
S-3 (File No. 333-71073) in respect of the Notes filed with the Securities
and Exchange Commission, including amendments, incorporated documents,
exhibits and financial statements, in the form in which it has or shall
become effective and, in the event that any post-effective amendment
thereto becomes effective prior to the Issuance Date, shall also mean such
registration statement as so amended.
"Rule 424" refers to such rule under the Securities Act.
"Underwriters" means Xxxxxx Brothers Inc., Chase Securities Inc.,
Deutsche Bank Securities Inc. and PNC Capital Markets, Inc.
"Underwriting Information" has the meaning given to such term in
Section 8(b) hereof.
Section 2. Purchase and Sale of Notes.
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(a) Subject to the terms and conditions and in reliance upon the
covenants, representations and warranties set forth herein, the Underwriters
agree to purchase from the Issuer the Notes pursuant to the terms of this
Agreement on the Issuance Date at the purchase price or prices (the "Purchase
Price") set forth on Schedule A attached hereto.
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(b) The obligations of each of the Underwriters hereunder to purchase
the respective Notes shall be several and not joint. Each Underwriter's
obligation shall be to purchase the aggregate principal amount of Notes as is
indicated with respect to each Underwriter on Schedule A attached hereto. The
rights of the parties in the event of the failure on the part of the
Underwriters to purchase any Notes as contemplated herein shall be as set forth
in Section 13 hereof.
(c) It is understood that the Underwriters propose to offer the Notes
for sale to the public in the manner set forth in the Final Prospectus.
Section 3. Delivery and Payment.
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Delivery of and payment for the Notes to be purchased by the
Underwriters shall be made at the offices of Xxxxx Xxxxxxxxxx LLP, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, at 10:00 A.M., New York time, on May 25,
1999 (the "Issuance Date"). The Notes shall be delivered against payment by the
Underwriters of the Purchase Price therefor, to or upon the order of the Issuer
by one or more wire transfers in immediately available funds. Following the
Effective Date, at the request of the Underwriters, delivery of one or more
global notes (the "Global Notes") representing the Notes shall be made to the
respective accounts of the Underwriters. The Global Notes to be so delivered
shall be registered in the name of Cede & Co., as nominee for The Depository
Trust Company ("DTC"). The interests of beneficial owners of the Notes will be
represented by book entries on the records of DTC and participating members
thereof. Definitive Notes representing the Notes will be available under the
circumstances described in the Indenture.
Section 4. Representations and Warranties.
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(a) The Issuer hereby represents and warrants to, and agrees with,
the Underwriters as follows:
(i) The Issuer meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"), and
has filed with the Securities and Exchange Commission (the "Commission")
the Registration Statement, including the Base Prospectus and form of
Prospectus Supplement, on such Form S-3 for the registration under the
Securities Act of the Notes. Such Registration Statement has been declared
effective. The Issuer may have filed one or more amendments thereto, each
of which has previously been furnished to you. The Issuer will file with
the Commission either, (A) prior to the effectiveness of such Registration
Statement, a further amendment thereto (including the form of Final
Prospectus) or, (B) after effectiveness of such Registration Statement, a
Final Prospectus in accordance with Rule 424(b). In the case of clause (B),
the Issuer will include in such Registration Statement, as amended at the
Effective Date, all information required by the Securities Act and the
rules thereunder to be included with respect to the Notes and the offering
thereof. As filed, such amendment and form of Final Prospectus, or such
Final Prospectus, shall include all information required by the Securities
Act and,
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except to the extent you shall agree in writing to a modification, shall be
in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus which has previously
been furnished to you) as the Issuer has advised you, prior to the
Execution Time, will be included or made therein.
(ii) On the Effective Date, the Registration Statement did
or will comply in all material respects with the applicable requirements of
the Securities Act and the rules thereunder; on the Effective Date and when
the Final Prospectus is first filed (if required) in accordance with Rule
424(b) and on the Issuance Date, the Final Prospectus will comply in all
material respects with the applicable requirements of the Securities Act
and the rules thereunder; on the Effective Date, the Registration Statement
did not or will not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading; and the Final Prospectus, as of its
date and on the Issuance Date, did not or will not include any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, provided, however, that the
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Issuer makes no representation or warranty as to the Underwriting
Information.
(iii) This Agreement has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Issuer enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors rights generally and to general principles of equity, and except
that the provisions hereof relating to indemnification of the Underwriters
may be subject to limitations of public policy.
(iv) Each of the Indenture and the Assignment and
Servicing Agreement (the "Assignment and Servicing Agreement") has been
duly authorized by the Issuer and, when executed and delivered, will
constitute the legal, valid and binding obligation of the Issuer,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors rights
generally and to general principles of equity, and each of the Indenture
and the Assignment and Servicing Agreement conforms to the description
thereof contained in the Final Prospectus.
(v) The issuance of the Notes has been duly authorized by
the Issuer and, when duly and validly executed, authenticated and delivered
in accordance with the Indenture and this Agreement, will be the legal,
valid and binding obligations of the Issuer, enforceable in accordance with
their terms,
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subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors rights generally and to general principles of equity,
and entitled to the benefits of the Indenture.
(vi) The performance of this Agreement, the Indenture and
the Assignment and Servicing Agreement by the Issuer will not (A) conflict
with or result in a breach of, and will not constitute a default under any
of the provisions of, its certificate of formation or any law, governmental
rule or regulation, or any judgment, decree or order binding on the Issuer
or its properties, or any of the provisions of any indenture, mortgage,
deed of trust, contract or other agreement or instrument to which the
Issuer is a party or by which it is bound, or (B) result in the creation or
imposition of any Adverse Claim and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the Notes
or the consummation by the Issuer of the transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations
or qualifications as have been already obtained and such as may be required
under the Securities Act and under state securities or Blue Sky laws in
connection with the purchase and distribution of the Notes by the
Underwriters. As used herein, "Adverse Claim" means a lien, pledge,
security interest or other charge or encumbrance.
(vii) The Issuer is not, and will not, as of the Issuance
Date, be an "investment company" under the Investment Company Act of 1940,
as amended (the "1940 Act").
(viii) The Indenture, when executed and delivered, will have
been duly qualified under the Trust Indenture Act of 1939.
(ix) There is no pending or threatened action, suit or
proceeding against or affecting the Issuer in any court or tribunal or
before any arbitrator of any kind or before or by any governmental
authority (i) asserting the invalidity of this Agreement, the Assignment
and Servicing Agreement, the Indenture or the Notes, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Assignment and Servicing
Agreement or the Indenture or (iii) seeking any determination or ruling
that might materially and adversely affect (A) its performance of its
obligations under this Agreement, the Assignment and Servicing Agreement or
the Indenture (as applicable) or (B) the validity or enforceability of this
Agreement, the Assignment and Servicing Agreement, the Indenture or the
Notes.
(b) IOS Capital hereby represents and warrants to and agrees with the
Underwriters as follows:
(i) This Agreement has been duly authorized, executed and
delivered by IOS Capital and constitutes a legal, valid and binding
agreement of IOS Capital enforceable in accordance with its terms, subject
to bankruptcy,
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insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
generally and to general principals of equity, and except that the
provisions hereof relating to indemnification of the Underwriters may be
subject to limitations of public policy.
(ii) Each of the Indenture and the Assignment and
Servicing Agreement have been duly authorized, and when executed and
delivered, will constitute the legal, valid and binding obligation of IOS
Capital, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors rights
generally and to general principles of equity, and each of the Indenture
and the Assignment and Servicing Agreement conforms in all material
respects to the description thereof contained in the Final Prospectus.
(iii) The performance of this Agreement by IOS Capital, and
the consummation by IOS Capital of the transactions herein contemplated,
will not (A) conflict with or result in a breach of, and will not
constitute a default under any of the provisions of its certificate of
incorporation or by-laws or any law, governmental rule or regulation, or
any judgment, decree or order binding on IOS Capital or its properties, or
any of the provisions of any indenture, mortgage, deed of trust, contract
or other agreement or instrument to which IOS Capital is a party or by
which it is bound, which conflict, breach or default would be material to
the issue and sale of the Notes or would have a material adverse effect on
the operations, management, prospects or financial condition of IOS Capital
or on the shareholders equity of IOS Capital, or (B) result in the creation
or imposition of any Adverse Claim and no consent, approval, authorization,
order, registration or qualification of or with any court or governmental
agency or body is required for the consummation by IOS Capital of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as have been
already obtained and such as may be required under the Securities Act and
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Notes by the Underwriters.
(iv) IOS Capital represents and warrants it has delivered
to the Underwriters complete and correct copies of its balance sheet and
statements of income and retained earnings reported by IOS Capital, Inc.
and IKON Office Solutions, Inc. (the "IKON Entities") for the fiscal year
ended September 30, 1998. Except as set forth in or contemplated in the
Registration Statement and the Final Prospectus, there has been no material
adverse change in the condition (financial or otherwise) of the IKON
Entities since September 30, 1998.
(v) Any taxes, fees and other governmental charges
arising from the execution and delivery of this Agreement, the Assignment
and Servicing Agreement and the Indenture and in connection with the
execution, delivery and issuance of the Notes and with the transfer of the
Leases and the Equipment, have been paid or will be paid by the Issuer
prior to the Issuance Date.
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(vi) Ernst & Young LLP is an independent public accountant
with respect to the IKON Entities and the Issuer within the meaning of the
Securities Act and the rules and regulations promulgated thereunder.
(vii) There is no pending or threatened action, suit or
proceeding against or affecting IOS Capital in any court or tribunal or
before any arbitrator of any kind or before or by any governmental
authority (i) asserting the invalidity of this Agreement, the Assignment
and Servicing Agreement, the Indenture or the Notes, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Assignment and Servicing
Agreement or the Indenture or (iii) seeking any determination or ruling
that might materially and adversely affect (A) its performance of its
obligations under this Agreement, the Assignment and Servicing Agreement or
the Indenture (as applicable) or (B) the validity or enforceability of this
Agreement, the Assignment and Servicing Agreement, the Indenture or the
Notes.
In addition, IOS Capital hereby makes and repeats the representations
and warranties set forth in Section 2 of the Assignment and Servicing Agreement.
Such representations and warranties are incorporated by reference in this
Section 4(b), and the Underwriters may rely thereon as if such representations
and warranties were fully set forth herein.
(c) The Seller hereby represents and warrants to and agrees with the
Underwriters as follows:
(i) This Agreement has been duly authorized, executed and
delivered by the Issuer and constitutes a legal, valid and binding
agreement of the Seller enforceable in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors rights generally and to general principles of equity, and except
that the provisions hereof relating to indemnification of the Underwriters
may be subject to limitations of public policy.
(ii) The Assignment and Servicing Agreement has been duly
authorized by the Seller and, when executed and delivered, will constitute
the legal, valid and binding obligation of the Seller, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors rights generally and to
general principles of equity.
(iii) The performance of this Agreement and the Assignment
and Servicing Agreement by the Seller will not (A) conflict with or result
in a breach of, and will not constitute a default under any of the
provisions of, its certificate of formation or any law, governmental rule
or regulation, or any judgment, decree or order binding on the Seller or
its properties, or any of the provisions of any indenture, mortgage, deed
of trust, contract or other agreement
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or instrument to which the Seller is a party or by which it is bound, or
(B) result in the creation or imposition of any adverse claim and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Notes or the consummation by the Seller of the
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Securities Act and under state securities or Blue Sky
laws in connection with the purchase and distribution of the Notes by the
Underwriters.
(iv) There is no pending or threatened action, suit or
proceeding against or affecting the Seller in any court or tribunal or
before any arbitrator of any kind or before or by any governmental
authority (i) asserting the invalidity of this Agreement, the Assignment
and Servicing Agreement, the Indenture or the Notes, (ii) seeking to
prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Agreement, the Assignment and Servicing
Agreement or the Indenture or (iii) seeking any determination or ruling
that might materially and adversely affect (A) its performance of its
obligations under this Agreement or the Assignment and Servicing Agreement
or (B) the validity or enforceability of this Agreement, the Assignment and
Servicing Agreement, the Indenture or the Notes.
In addition, the Seller hereby makes and repeats the representations
and warranties set forth in Section 3 of the Assignment and Servicing Agreement.
Such representations and warranties are incorporated by reference in this
Section 4(c), and the Underwriters may rely thereon as if such representations
and warranties were fully set forth herein.
(d) The Underwriters severally and not jointly hereby make and repeat
each of the representations set forth in the third paragraph under
"Underwriting" in the Prospectus Supplement (dealing with offers and sales
of Notes to persons in the United Kingdom). Such representations are
incorporated by reference in this Section 4(d), and the Issuer, the Seller
and IOS Capital may rely thereon as if such representations were fully set
forth herein.
Section 5. Covenants of the Issuer and IOS Capital. The Issuer
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hereby covenants and agrees with you, and IOS Capital hereby covenants and
agrees with you to cause the Issuer:
(a) to use its best efforts to cause the Registration Statement, and
any amendment thereto, if not effective as of the date hereof, to become
effective; if the Registration Statement has become or becomes effective, or
filing of the Final Prospectus is otherwise required under Rule 424(b), to file
the Final Prospectus, properly completed, pursuant to Rule 424(b) within the
time period prescribed and to provide evidence satisfactory to the Underwriters
of such timely filing; to promptly advise the Underwriters (i) when the
Registration Statement shall have become effective, (ii) when any amendment
thereof shall have become effective, (iii) of any request by the
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Commission for any amendment or supplement of the Registration Statement, the
Final Prospectus, or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose,
and (v) of the receipt by the Issuer of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; to not file any
amendment of the Registration Statement or supplement to the Final Prospectus to
which the Underwriters reasonably object; and to use best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof;
(b) if, at any time when a Final Prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs as a result
of which the Final Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or, if it shall be necessary to supplement such Final
Prospectus to comply with the Securities Act or the rules thereunder, to
promptly prepare and file with the Commission, subject to paragraph (a) of this
Section 5, a supplement which will correct such statement or omission or an
amendment which will effect such compliance;
(c) as soon as practicable, to make generally available to the
holders of Notes (the "Noteholders") and to the Underwriters an earnings
statement or statements of the Issuer which will satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 under the Securities Act;
(d) to furnish to the Underwriters and counsel for the Underwriters,
without charge, a signed copy of the Registration Statement (including exhibits
thereto) and, so long as delivery of a prospectus by any of the Underwriters or
any dealer may be required by the Securities Act, to furnish as many copies of
each Final Prospectus and Preliminary Prospectus relating to the Notes and any
supplement thereto as the Underwriters may reasonably request;
(e) to take all reasonable actions requested by the Underwriters to
arrange for the qualification of the Notes for sale under the laws of such
jurisdictions within the United States and as the Underwriters may designate and
as necessary to qualify the Notes for book-entry registration under the rules of
DTC and to maintain such qualifications in effect so long as required for the
completion of the distribution of the Notes; provided, in connection therewith
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that neither the Issuer nor IOS Capital shall be required to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified or to take any action that would subject it to service of process in
any jurisdiction where it is not so subject, other than in suits arising out of
the offering of the Notes or the transactions contemplated by the Notes, the
Indenture or the Assignment and Servicing Agreement;
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(f) for so long as the Notes are outstanding, to deliver to the
Underwriters by first-class mail and as soon as practicable a copy of all
reports and notices delivered to the Rating Agencies, Trustee, Ambac or the
Noteholders under the Indenture;
(g) for so long as the Notes are outstanding, to furnish to the
Underwriters as soon as practicable after filing any other information
concerning the Issuer or IOS Capital filed with any government or regulatory
authority which is otherwise publicly available; and
(h) to the extent, if any, that any rating provided with respect to
the Notes set forth in Section 6(g) hereof is conditional upon the furnishing of
documents reasonably available to the Issuer, the Seller or IOS Capital, to
furnish such documents within any required time period.
Section 6. Conditions of Underwriters' Obligation. The
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obligations of the Underwriters to purchase and pay for the Notes on the
Issuance Date shall be subject to the accuracy in all material respects of the
respective representations and warranties of the Issuer, the Seller and IOS
Capital herein, in the Assignment and Servicing Agreement and in the Indenture,
to the performance by the Issuer, the Seller and IOS Capital in all material
respects of their respective obligations hereunder, under the Assignment and
Servicing Agreement and under the Indenture and to the following additional
conditions:
(a) The Issuer, the Seller and IOS Capital shall each have delivered
a certificate (an "Officer's Certificate"), dated the Issuance Date, signed by
its Vice President and its Chief Financial Officer, to the effect that:
(i) the representations and warranties made by the
Issuer, the Seller or IOS Capital (as the case may be) in this Agreement,
the Indenture and the Assignment and Servicing Agreement are true and
correct in all material respects at and as of the date of such Officer's
Certificate as if made on and as of such date (except to the extent they
expressly relate to an earlier date);
(ii) the Issuer, the Seller or IOS Capital (as the case
may be) has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied under this Agreement,
the Indenture and the Assignment and Servicing Agreement at or prior to the
date of such Officer's Certificate;
(iii) nothing has come to such officer's attention that
would lead him to believe that the Final Prospectus contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; and
(iv) such officer is not aware of (A) any request of the
Commission for further amendment of the Registration Statement or the Final
Prospectus for any additional information, (B) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceeding
for that purpose or (C) any notification
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with respect to the suspension of the qualification of the Notes for sale
in any jurisdiction or the threatening of any proceeding for that purpose.
(b) You shall have received a favorable opinion from Xxxxxxx Xxxxx
Xxxxxxx & Xxxxxxxxx, LLP, counsel to the Issuer, the Seller and IOS Capital
(subject to customary and usual qualifications), each dated the Issuance Date
and reasonably satisfactory in form and substance to the Underwriters and their
counsel with respect to or to the effect that: (i) the existence and good
standing of IOS Capital, (ii) that the Issuer, the Seller and IOS Capital, as
applicable, have the corporate authority to perform this Agreement, the
Assignment and Servicing Agreement, the Indenture and the Insurance Agreement
(collectively, the "Transaction Documents") and the transactions contemplated
herein and therein; (iii) the due authorization, execution, delivery and
enforceability of this Agreement and the other Transaction Documents, as
applicable, by the Issuer, the Seller and IOS Capital; (iv) each of this
Agreement and the other Transaction Documents are the legal, valid and binding
obligation of the Issuer, the Seller and IOS Capital, as applicable, enforceable
against each of them in accordance with its terms (subject to customary
exceptions relating to bankruptcy and laws affecting creditors' rights); (v) the
Notes have been duly authorized, executed and delivered by the Issuer and
constitute the legal, valid and binding obligations of the Issuer enforceable in
accordance with their terms (subject to customary exceptions as to bankruptcy
and laws affecting creditors' rights) and are entitled to the benefits of the
Indenture; (vi) the issuance and sale of the Notes by the Issuer, the
performance of this Agreement by the Issuer, the Seller and IOS Capital and
compliance by the Issuer, the Seller and IOS Capital with the terms of the
Transaction Documents, as applicable, and the consummation of the transactions
contemplated herein and therein will not conflict with the organizational
documents of the Issuer or the Seller, or to the best of such counsel's
knowledge, any other contract to which the Issuer or the Seller is a party or by
which either of them is bound; (vii) to the best of such counsel's knowledge,
there is no legal or governmental proceeding threatened or pending against the
Issuer or the Seller which would have a material adverse effect on the issuance
of the Notes, the performance by the Issuer or the Seller of this Agreement or
compliance by the Issuer or the Seller with the terms of the Transaction
Documents to which they are parties, respectively; and (viii) on the Issuance
Date the Registration Statement is effective, and, that to the best of such
counsel's knowledge no stop order suspending the effectiveness of the
Registration Statement has been issued or is threatened, and that although such
counsel is not passing on the factual accuracy, completeness or fairness of the
statements contained in the sections entitled "The Issuer", "The Servicer and
the Originator" and "The Asset Pool" in the Prospectus Supplement and "The
Issuer", "The Asset Pools", "Management's Discussion and Analysis of Financial
Condition", "Directors and Executive Officers of the Manager of the Issuer",
"The Leases" and "The Originator's Leasing Business" in the Base Prospectus
nothing came to such counsel's attention that leads such counsel to believe that
any of such sections (as of the Effective Date or the date of the Final
Prospectus) contained an untrue statement of a material fact or omitted 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 (in each case other than the financial and statistical information
and notes and schedules thereto, as to which such counsel need express no
opinion). In rendering such opinion, counsel may rely, to the
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extent deemed proper and as stated therein, as to matters of fact on
certificates of responsible officers of the Issuer, the Seller or IOS Capital
and public officials and as to matters of state law of jurisdictions other than
the jurisdictions in which such counsel is admitted to practice, on opinions of
local counsel satisfactory to the Underwriters.
(c) You shall have received a favorable opinion from Xxxxx Xxxxxx
Xxx., counsel to IOS Capital (subject to customary and usual qualifications),
dated the Issuance Date and reasonably satisfactory in form and substance to the
Underwriters and their counsel with respect to or to the effect that: (i) the
issuance and sale of the Notes by the Issuer, the performance of this Agreement
by the Issuer, the Seller and IOS Capital and compliance by the Issuer, the
Seller and IOS Capital with the terms of the Transaction Documents, as
applicable, will not conflict with the organizational documents of IOS Capital
or any other contract to which IOS Capital is a party or by which IOS Capital is
bound; and (ii) there is no legal or governmental proceeding pending, or to the
best knowledge of such counsel threatened, against IOS Capital which would have
a material adverse effect on the issuance of the Notes, the performance by the
Issuer, the Seller or IOS Capital of this Agreement or compliance by the Issuer,
the Seller or IOS Capital with the terms of the Transactions Documents.
(d) You shall have received a favorable opinion from Xxxxxx, Xxxxxx,
Xxxxxx & Xxxxx, counsel to the Issuer, the Seller and IOS Capital (subject to
customary and usual qualifications), dated the Issuance Date and reasonably
satisfactory in form and substance to the Underwriters and their counsel with
respect to or to the effect, in each case to the extent governed by the laws of
the State of Georgia, that: (A) in the event a court disregarded the intent of
the parties and characterized the transfer by IOS Capital to the Seller of the
Leases and the related Equipment owned by IOS Capital located in the State of
Georgia pursuant to the Assignment and Servicing Agreement as a pledge of
collateral rather than an absolute assignment by way of capital contribution,
the Assignment and Servicing Agreement creates a valid security interest in
favor of the Seller therein, which security interest is a perfected first
priority security interest, (B) in the event a court disregarded the intent of
the parties and characterized the transfer by the Seller to the Issuer of the
Leases pursuant to the Assignment and Servicing Agreement as a pledge rather
than an absolute assignment by way of capital contribution, the Assignment and
Servicing Agreement creates a valid security interest in favor of the Issuer
therein, which security interest is a perfected first priority security
interest, (C) the Assignment and Servicing Agreement creates a valid security
interest in the Seller's right, title and interest in and to the Equipment,
which security interest is a perfected first priority security interest, and (D)
the Indenture creates a valid security interest in favor of the Trustee in the
Issuer's right, title and interest in and to the Leases and the related
Equipment, which security interest is a perfected first priority security
interest (such counsel being permitted to assume for purposes of such opinions
that no prior financing statements covering the Leases or Equipment are in
effect based on a review of UCC searches as of a recent date and that financing
statements (i) naming the Seller as secured party and IOS Capital as debtor and
the Leases and any related Equipment as the collateral, (ii) the Issuer as
secured party and the Seller as debtor and the Leases and all right, title and
interest of the Seller in the related Equipment as the collateral, and (iii)
naming the Trustee as secured party and the Issuer as debtor and the Leases and
all right,
12
title and interest of the Issuer in and to the Equipment as the collateral have
been filed in the filing offices within the State of Georgia identified in such
opinion).
(e) You shall have received a favorable opinion from Xxxxxxxx, Xxxxxx
& Finger, special counsel to the Issuer, the Seller and IKON Receivables Funding
Inc. (the "Manager") (subject to customary and usual qualifications) with
respect to or to the effect that: (i) the due formation, existence and good
standing of the Issuer, the Seller and the Manager, (ii) the legal, valid and
binding effect and enforceability of the limited liability company agreement of
the Seller and the Issuer, (iii) a Delaware court applying Delaware law would
conclude that the consent of the Manager and of IOS Capital, as sole member of
the Seller, would be required to file a voluntary bankruptcy petition on behalf
of the Seller and the provisions requiring such consent would be enforceable,
(iv) a Delaware court applying Delaware law would conclude that the consent of
the Manager and of the Seller, as sole member of the Issuer, would be required
to file a voluntary bankruptcy petition on behalf of the Issuer and the
provisions requiring such consent would be enforceable, (v) an insolvency or
bankruptcy event affecting the sole member of the Seller or the Issuer would not
result in the dissolution of such entity, (vi) a bankruptcy court would hold
that Delaware law, and not federal law, governs the determination of what
persons or entities have authority to file a voluntary bankruptcy petition on
behalf of the Issuer or the Seller, as applicable, (vii) creditors of IOS
Capital or the Seller may only claim against the respective ownership interests
in the Seller (in the case of IOS Capital ) and the Issuer (in the case of the
Seller) and have no direct claim to the assets of the Seller or the Issuer, as
applicable, and (viii) that the Seller and the Issuer are separate legal
entities under Delaware law.
(f) The Underwriters shall have received from Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, such opinion or opinions, dated the Issuance Date,
with respect to the validity of the Notes, the Registration Statement, the Final
Prospectus, true sale, nonconsolidation, enforceability of the Transaction
Documents and the Notes, certain securities law issues, perfection, federal
taxes, and other related matters as the Underwriters may require.
(g) At the Execution Time and at the Issuance Date, Xxxxx & Young LLP
shall have furnished to the Underwriters a letter or letters, dated the date of
this Agreement and the Issuance Date, respectively, in form and substance
satisfactory to the Underwriters.
(h) The Class A-1 Notes shall have been rated at least "A-1+" and "P-
1", that the Class A-2, A-3 and A-4 notes be rated at least "AAA" and "Aaa" by
Standard & Poor's Ratings Group ("S&P") and Xxxxx'x Investors Service, Inc.
("Moody's"), respectively, which ratings shall not have been reduced or
withdrawn as evidenced by the Officer's Certificate referred to in Section 6(b).
(i) Counsel to the Trustee shall have delivered a favorable opinion
(subject to customary and usual exceptions), dated the Issuance Date, as the
case may be, and satisfactory in form and substance to the Underwriters and
counsel for the
13
Underwriters and to the Issuer, the Seller and IOS Capital and their counsel
with respect to, or to the effect that: (i) the due incorporation and valid
existence of the Trustee, (ii) the due authorization, execution and delivery by
the Trustee of the Indenture, (iii) the Indenture is the legal, valid and
binding obligation of the Trustee, enforceable against the Trustee in accordance
with its terms (subject to the customary and usual exceptions), (iv) the
execution, delivery and performance of the Indenture will not conflict with the
Trustee's organizational documents and (v) the Notes have been duly
authenticated by the Trustee.
(j) All proceedings in connection with the transactions contemplated
by this Agreement and all documents incident hereto shall be reasonably
satisfactory in form and substance to you, and you and your counsel shall have
received such other information, certificates and documents as you or they may
reasonably request.
Section 7. Reimbursement of Expenses. In the event that (x) no
-------------------------
closing of the sale of the Notes occurs by the Issuance Date through no fault of
the Issuer or IOS Capital or because any of the conditions set forth in Sections
6(e), 6(f), 6(h), 6(i) and 6(j) have not been met, or (y) the Underwriters
terminate the engagement pursuant to Section 10 or because any conditions
precedent in Section 6 (other than Section 6(a), 6(b), 6(c), 6(d) and 6(g)) have
not been fulfilled, then the liability of the Issuer and IOS Capital to the
Underwriters shall be limited to the reimbursement of the Underwriters' expenses
incurred through the date of termination for its reasonable out-of-pocket and
incidental expenses. In addition, whether or not the Notes are issued or sold:
(a) The Issuer or IOS Capital shall pay the reasonable fees and
expenses associated with the transactions contemplated hereby not paid by the
Underwriters in accordance with the provisions of Section 7(b), including,
without limitation, the following fees and expenses:
(i) Rating Agency fees payable with respect to their ratings
of the Notes;
(ii) fees charged by the firm of independent public
accountants referred to in Section 6(d);
(iii) filing fees in connection with the transactions
contemplated hereby including, but not limited to, the Commission;
(iv) fees and expenses of Xxxxx Xxxxxxxxxx LLP;
(v) Trustee's fees and fees of counsel to the Trustee;
(vi) Ambac's fee and fees of counsel to Ambac;
(vii) the costs and expenses of printing the Registration
Statement, the Final Prospectus and each Preliminary Prospectus;
14
(viii) the costs of printing or reproducing this Agreement,
the Blue Sky Survey and any other documents in connection with the offer,
sale and delivery of the Notes;
(ix) all expenses in connection with the qualification of
the Notes under state securities laws as provided in section 5(e),
including the fees and disbursements of counsel in connection with the Blue
Sky Survey;
(x) the cost of preparing the Notes;
(xi) the cost or expenses of any transfer agent or
registrar; and
(xii) all other costs and expenses incident to the
performance of their obligations hereunder which are not otherwise
specifically provided for in this Section 7; provided, however, that the
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Issuer and IOS Capital do not hereby waive any right to reimbursement from
the Underwriters in the event of any of the Underwriters' failure to
perform in accordance with this Agreement.
(b) It is understood and agreed that, except as provided in Sections
8 and 9, the Underwriter will pay securities transfer taxes on resale of
any of the Notes by them, and any advertising expenses connected with any
offers they may make.
Section 8. Indemnification and Contribution.
--------------------------------
(a) The Issuer and IOS Capital, jointly and severally, will indemnify
and hold harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities and Exchange Act of 1934 as amended (the "Exchange Act") (each an
"Indemnified Party") from and against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or any such controlling
persons may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Final
Prospectus or any amendment or supplement thereto, or (ii) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances in
which they were made not misleading, and will promptly reimburse each such
Indemnified Party for any legal or other expenses reasonably incurred by each
such Indemnified Party in connection with investigating, preparing to defend or
defending, or appearing as a third-party witness in connection with, any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Issuer and IOS Capital shall not be liable in any
-------- -------
such case to the extent that any such loss, claim, damage, liability or action
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or the Final
Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with the Underwriting Information. The foregoing
15
indemnity agreement is in addition to any liability which each of the Issuer and
IOS Capital may otherwise have to you or any person who controls you.
(b) Each Underwriter agrees severally, and not jointly, to indemnify
and hold harmless the Issuer and IOS Capital against any losses, claims, damages
or liabilities to which the Issuer or IOS Capital may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
an untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Final Prospectus, or any amendment or
supplement thereto, or (ii) the omission or alleged omission to state therein 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,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in the
Registration Statement or the Final Prospectus or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Issuer or IOS Capital by or on behalf of such Underwriter
expressly for use therein and will reimburse the Issuer or IOS Capital for any
legal or other expenses reasonably incurred by the Issuer or IOS Capital in
connection with the investigating, preparing to defend or defending, or
appearing as a third-party witness in connection with, any such loss, claim,
damage, liability or action. The Issuer and IOS Capital acknowledge that the
statements set forth in the second, third, fifth and sixth paragraphs under the
heading "Underwriting" in the Prospectus Supplement constitute the only
information furnished in writing by or on behalf of the Underwriters for
inclusion in the Registration Statement and the Final Prospectus (the
"Underwriting Information"), and each of you with respect to yourself confirm
that such statements are correct.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the claim or commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
-------- -------
that if the defendants in any such action include both the indemnified party and
the indemnifying party, and the indemnified party shall have been advised by
counsel that representation of such indemnified party and the indemnifying party
may be inappropriate under applicable standards of professional conduct due to
actual or potential differing interests between them, the indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. It is understood that the
indemnifying party shall, in connection with any such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of
16
only one separate firm of attorneys together with appropriate local counsel at
any time from all indemnified parties not having actual or potential differing
interests with any other indemnified party. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to appoint
counsel to defend such action and approval by the indemnified party of such
counsel, the indemnifying party will not be liable for any settlement entered
into without its consent and will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). Notwithstanding the immediately preceding sentence and the first
sentence of this paragraph, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement.
(d) Each Underwriter agrees severally and not jointly to deliver to
the Issuer or IOS Capital no later than the date on which the Final Prospectus
is required to be filed pursuant to Rule 424 with a copy of its Derived
Information (defined below) for filing with the Commission.
(e) Each Underwriter agrees severally and not jointly, assuming all
Company-Provided Information (defined below) is accurate and complete in all
material respects, to indemnify and hold harmless the Issuer and IOS Capital
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Derived Information provided by you, or arise out of or are based upon, when
read in conjunction with the Final Prospectus, the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by him, her or it in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. Your
obligations under this Section 8(e) shall be in addition to any liability which
you may otherwise have.
(f) Each of the Issuer and IOS Capital agrees to indemnify and hold
harmless the Underwriters, the directors, officers, employees and agents of each
17
Underwriter and each person who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against any
and all losses, claims, damages or liabilities, joint or several, to which they
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Company-Provided Information provided by the Issuer , the Seller or IOS Capital,
or arise out of or are based upon, when read in conjunction with the Final
Prospectus, the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, and
agrees to reimburse each such indemnified party for any legal or other expenses
reasonably incurred by him, her or it in connection with investigating or
defending or preparing to defend any such loss, claim, damage, liability or
action as such expenses are incurred. Your obligation under this Section 8(f)
shall be in addition to any liability which you may otherwise have.
(g) The procedures set forth in Section 8(c) shall be equally
applicable to Sections 8(e) and 8(f).
(h) For purposes of this Section 8, the term "Derived Information"
means such portion, if any, of the information delivered to the Issuer or IOS
Capital by the Underwriters pursuant to Section 8(d) for filing with the
Commission as:
(i) is not contained in the Final Prospectus without taking
into account information incorporated therein by reference;
(ii) does not constitute Company-Provided Information; and
(iii) is of the type of information defined as Collateral
Term Sheets, Structural Term Sheets or Computational Materials (as such
terms are interpreted in the No-Action Letters).
"Company-Provided Information" means any computer tape furnished to
the Underwriters by the Issuer, the Seller or IOS Capital concerning the Leases
or any other information furnished by the Issuer, the Seller or IOS Capital to
the Underwriters that is relied on or is reasonably anticipated by the parties
hereto to be relied on by the Underwriters in the course of the Underwriters'
preparation of its Derived Information or the Underwriting Information.
The terms "Collateral Term Sheet" and "Structural Term Sheet" shall
have the respective meanings assigned to them in the February 13, 1995 letter
(the "PSA Letter") of Xxxxxx, Xxxxxxxx, Xxxxx & Xxxxxxxx on behalf of the Public
Securities Association (which letter, and the SEC staff's response thereto, were
publicly available February 17, 1995). The term "Collateral Term Sheet" as used
herein includes any subsequent Collateral Term Sheet that reflects a substantive
change in the information presented. The term "Computational Materials" has the
meaning assigned to it in the May 17, 1994 letter (the "Xxxxxx letter" and
together with the PSA Letter, the "No-Action
18
Letters") of Xxxxx & Xxxx on behalf of Xxxxxx, Xxxxxxx & Co., Inc. (which
letter, and the SEC staff's response thereto, were publicly available May 20,
1994).
(i) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) in such proportion as is equitable and as shall reflect the
relative benefits received by the Issuer, the Seller and IOS Capital on the one
hand and the Underwriters on the other from the offering of the Notes. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Issuer, the Seller or IOS Capital on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Issuer, the Seller or IOS
Capital on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion that the total net proceeds from the offering (before
deducting expenses) received by the Issuer, the Seller and IOS Capital bear to
the total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus
Supplement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuer or IOS Capital on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Issuer, IOS
Capital and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (i) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to above in this subsection (i). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
referred to above in this subsection (i) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating, preparing to defend or defending, or appearing as a third-party
witness in connection with, any such action or claim. Notwithstanding the
provisions of this subsection (i), none of the Underwriters shall be required to
contribute any amount in excess of the total underwriting discount and
commissions as set forth on the cover page of the Prospectus Supplement paid to
the respective Underwriter. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
19
(j) The obligations of the Issuer and IOS Capital under this Section
8 shall be in addition to any liability which the Issuer or IOS Capital may
otherwise have and shall extend, upon the same terms and conditions, to each
director, officer, employee and agent of each Underwriter and each person, if
any, who controls any of the Underwriters within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Issuer, the Seller and IOS
Capital and to each person, if any, who controls the Issuer or IOS Capital
within the meaning of the Securities Act.
(k) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
Section 9. Survival. The respective representations, warranties
--------
and agreements of the Issuer, the Seller, IOS Capital and the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, notwithstanding any investigation heretofore or hereafter made by or on
behalf of the Issuer, the Seller, IOS Capital or the Underwriters, and such
representations, warranties and agreements made by the Issuer, the Seller and
IOS Capital shall survive the delivery and payment for the Notes. The provisions
of Sections 7 and 8 shall survive the termination or cancellation of this
Agreement.
Section 10. Termination.
-----------
(a) This Agreement may be terminated by you in your absolute
discretion at any time upon the giving of notice at any time prior to the
Issuance Date: (i) if there has been, since September 30, 1998, any material
adverse change in the condition, financial or otherwise, of IOS Capital, the
Seller or the Issuer, or in the earnings, business affairs or business prospects
of IOS Capital, the Seller or the Issuer, whether or not arising in the ordinary
course of business, or (ii) if there has occurred any outbreak or escalation of
hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your reasonable judgment,
impracticable to market the Notes or enforce contracts for the sale of the
Notes, or (iii) if trading generally on either the American Stock Exchange or
the New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the Commission or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either federal or New York authorities. In the event of any such termination, no
party will have any liability to any other party hereto, except as otherwise
provided in Section 7 or 8 hereof.
20
(b) This Agreement may not be terminated by the Issuer, the Seller or
IOS Capital, without the written consent of the Underwriters, except in
accordance with law.
(c) Notwithstanding anything herein to the contrary, in the event the
Issuer, the Seller or IOS Capital does not perform any obligation under this
Agreement or any representation and warranty hereunder is incomplete or
inaccurate in any material respect, this Agreement and all of the Underwriters'
obligations hereunder may be immediately cancelled by the Underwriters by notice
thereof to the Issuer or IOS Capital. Any such cancellation shall be without
liability of any party to any other party except that the provisions of Sections
7 and 8 hereof shall survive any such cancellation.
Section 11. Notices. All communications provided for or permitted
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered to or mailed by certified or registered mail, postage
prepaid, or transmitted by telex or telegraph and confirmed by a similar mailed
writing, if to you, addressed to you, at the addresses first stated in this
Agreement, or to such other address as you may designate in writing to the
Issuer, the Seller and IOS Capital; if to IOS Capital, addressed to IOS Capital
at 0000 Xxxx Xxxx, X.X. Box 9115, Macon, Georgia, 31210; if to the Issuer,
addressed to IKON Receivables, LLC at 0000 Xxxx Xxxx X.X. Box 9115, Macon,
Georgia 31210; and if to the Seller, addressed to IKON Receivables -1 LLC at
0000 Xxxx Xxxx, X.X. Box 9115, Macon, Georgia 31210, or such other address as
IOS Capital, the Issuer or the Seller may have designated in writing to you.
Section 12. Successors. This Agreement will inure to the benefit
----------
of and be binding upon the Issuer, the Seller and IOS Capital and their
respective successors and assigns and the Underwriters and their respective
successors and assigns.
Section 13. Default by Any of the Underwriters. Subject to
----------------------------------
Section 6 hereof, if any of the Underwriters shall fail on the Issuance Date to
purchase the Notes, which it is obligated to purchase hereunder (the "Defaulted
Notes"), the remaining Underwriter(s) (the "Non-Defaulting Underwriter(s)")
shall have the right, but not the obligation, within one (1) Business Day
thereafter, to make arrangements to purchase all, but not less than all, of the
Defaulted Notes upon the terms herein set forth; if, however, the Non-Defaulting
Underwriter(s) shall not have completed such arrangements within such one (1)
Business Day period, then this Agreement shall terminate without liability on
the part of the Non-Defaulting Underwriter(s).
No action taken pursuant to this Section 13 shall relieve the
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, any of the Non-Defaulting Underwriters or the
Company shall have the right to postpone the Issuance Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement, the Final Prospectus or in any other documents or arrangements.
21
Section 14. Entire Agreement. This Agreement and the documents
----------------
referred to herein and to be delivered pursuant hereto constitute the entire
agreement between the parties pertaining to the subject matter hereof and
supersede all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties.
Section 15. Governing Law.
-------------
(a) THIS AGREEMENT IS TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF LAWS PROVISIONS) OF THE STATE
OF NEW YORK.
(b) THE ISSUER, THE SELLER AND IOS CAPITAL HEREBY SUBMIT TO THE
NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE UNITED
STATES DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY, AND
EACH WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND CONSENTS THAT
ALL SUCH SERVICE OF PROCESS BE MADE BY REGISTERED MAIL DIRECTED TO THE ADDRESS
SET FORTH IN SECTION 11 HEREOF AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED FIVE DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U. S. MAILS,
POSTAGE PREPAID. THE ISSUER, THE SELLER AND IOS CAPITAL HEREBY WAIVE ANY
OBJECTION BASED ON FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY
----- --- ----------
ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE ISSUER, THE SELLER OR IOS CAPITAL TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT EITHER'S RIGHT TO BRING
ANY ACTION OR PROCEEDING IN THE COURTS OF ANY OTHER JURISDICTION.
(c) THE ISSUER, THE SELLER AND IOS CAPITAL HEREBY WAIVE ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE ARISING OUT OF, CONNECTED WITH, RELATED TO, OR IN CONNECTION
WITH THIS AGREEMENT. INSTEAD, ANY DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN
A BENCH TRIAL WITHOUT A JURY.
Section 16. Counterparts. This Agreement may be executed in two
------------
or more counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument.
Section 17. Miscellaneous. Neither this Agreement nor any term
-------------
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
22
If you are in agreement with the foregoing, please sign a counterpart
hereof and return the same to the Issuer, the Seller or IOS Capital, whereupon
this Agreement shall become a binding agreement between the Underwriters, on the
one hand, and the Issuer, the Seller and IOS Capital on the other.
23
Very truly yours,
IOS CAPITAL, INC.
By: /s/ X.X. Xxxxx
___________________________
Name: X.X. Xxxxx
Title: Treasurer
IKON RECEIVABLES, LLC
By: IKON Receivables Funding, Inc., its Manager
By: /s/ Xxxxxx X. XxXxxx
___________________________
Name: Xxxxxx X. XxXxxx
Title: President
IKON RECEIVABLES-1 LLC
By: IKON Receivables Funding, Inc., its Manager
By: /s/ Xxxxxx X. XxXxxx
___________________________
Name: Xxxxxx X. XxXxxx
Title: President
The foregoing Agreement is
hereby accepted and entered
into as of the date hereof.
XXXXXX BROTHERS INC.,
as Representative of the Underwriters
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Name: Xxxx X. Xxxxxx
Title: Managing Director
[Signature Page to the Underwriting Agreement]
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SCHEDULE A
The Notes will be purchased by Xxxxxx Brothers Inc., Chase Securities
Inc. Deutsche Bank Securities Inc., and PNC Capital Markets, Inc. as
follows:
---------------------------------------------------------------------------------------------------------------------
Xxxxxx Brothers Chase Securities Deutsche Bank PNC Capital
Inc. Inc. Principal Securities Inc. Markets, Inc. Underwriting
Principal Xxxxxx Xxxxxx Principal Amount Principal Amount Discount
---------------------------------------------------------------------------------------------------------------------
Class A-
1 Notes $213,131,800 $30,447,400 30,447,400 30,447,400 0.200%
---------------------------------------------------------------------------------------------------------------------
Class A-
2 Notes $ 43,105,300 $ 6,157,900 6,157,900 6,157,900 0.225%
---------------------------------------------------------------------------------------------------------------------
Class A-
3 Notes $212,888,900 $30,412,700 30,412,700 30,412,700 0.375%
---------------------------------------------------------------------------------------------------------------------
Class A-
4 Notes $ 57,023,400 $ 8,146,200 8,146,200 8,146,200 0.450%
---------------------------------------------------------------------------------------------------------------------
Totals $526,149,400 $75,164,200 $75,164,200 $75,164,200
---------------------------------------------------------------------------------------------------------------------
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