Exhibit 10.4
Schedule
to the
Master Agreement
dated as of June 28, 2001
between
Deutsche Bank AG, New York Branch and IKON Receivables, LLC
("Party A") ("Party B")
Part 1
Termination Provisions
In this Agreement:
(a) Specified Entity. "Specified Entity" is not applicable to Party A or Party
B.
(b) Specified Transactions. "Specified Transaction" has the meaning specified
in Section 14.
(c) Breach of Agreement. The "Breach of Agreement" provision of Section
5(a)(ii) will not apply to either Party A or Party B.
(d) Credit Support Default. The "Credit Support Default" provision of Section
5(a)(iii) is hereby amended by adding, at the end thereof, the following:
"provided that, not withstanding anything to the contrary contained in this
Agreement or this Section 5, an Event of Default relative to the Credit
Support Provider will not constitute an Event of Default with respect to
Party B."
(e) Misrepresentation. The "Misrepresentation" provision of Section 5(a)(iv)
will not apply to either Party A or Party B.
(f) Default under Specified Transaction. The "Default under Specified
Transaction" provision of Section 5(a)(v) will not apply to either Party A
or Party B.
(g) Cross Default. The "Cross Default" provisions of Section 5(a)(vi) will not
apply to either Party A or Party B.
(h) Tax Event. The "Tax Event" provisions of Section 5(b)(ii) will not apply to
either Party A or Party B.
(i) Tax Event Upon Merger. The "Tax Event Upon Merger" provision of Section
5(b)(iii) will not apply to either Party A or Party B.
(j) Credit Event upon Merger. The "Credit Event Upon Merger" provision (Section
5(b)(iv)) will not apply to Party A or Party B.
(k) Automatic Early Termination. The "Automatic Early Termination" provision of
Section 6(a) will not apply to Party A or Party B.
(l) Payments on Early Termination. For the purpose of Section 6(e) but subject
to part 5 of this Schedule:
(i) Market Quotation will apply, other than for an Additional Termination
Event.
(ii) The Second Method will apply, other than for an Additional Termination
Event.
(m) Termination Currency. "Termination Currency" shall be United States
Dollars.
(n) Requirement to Post Collateral. In the event that the long term unsecured
debt credit rating assigned to the Party A Guarantor is reduced below
either "A+" by S&P or "A-1" by Moody's (such an occurrence, a Level I
Downgrade"), Party A shall (I) promptly, but in any event not later than
two (2) Local Business Days following the date of the Level I Downgrade,
give Party B notice of the Level I Downgrade and (ii) provide, at its own
cost, credit support ("Level I Collateral") in the manner and to the extent
set forth in the Credit Support Annex (the "Credit Support Annex") between
Party A and Party B attached as Exhibit A hereto, on or before the
fifteenth business day after the date of the Level I Downgrade.
(o) Additional Termination Event. Additional Termination Event will apply as
follows. The occurrence of any of the following events (each such
occurrence, a "Level II Downgrade") shall be an Additional Termination
Event, with Party A as the sole Affected Party, and notwithstanding
anything to the contrary in this Agreement, the provisions of Part 1(p) of
this Schedule will apply if any Additional Termination Event occurs:
(i) Party A (including any successor to Party A under this Agreement as a
result of any merger, consolidation or transfer of assets involving
Party A) at any time is rated below the applicable Specified Rating
(as so defined) by any of the Rating Agencies (as so defined);
(ii) any of the Rating Agencies withdraws its rating for the Specified
Rating of Party A.
(iii) Party A fails to take the actions set forth in Part 1(n) of this
Schedule upon the occurrence of a Level I Downgrade within the time
period set forth in Part 1(n) of this Schedule.
For purposes of this Agreement, "Rating Agency" means each of Standard & Poor's
Rating Services ("S&P"), and Xxxxx'x Investors Service, Inc. ("Moody's"), and
the "Specified Rating" of Party A and related "Specified Ratings" are as
follows:
Specified Rating Specified Rating and Rating Agency
---------------- ----------------------------------
long-term senior unsecured debt credit rating "A-"-- S&P
"A-3" -- Moody's
(p) Termination Rights and Consequences of an Additional Termination Event.
Section 6(b) is hereby amended, at the end thereof, by the insertion of the
following: "notwithstanding anything to the contrary in this Agreement or
this Section 6(b), neither party may designate an Early Termination Date in
connection with an Event of Default relating to the Credit Support
Provider."
Notwithstanding Section 6(b)(iv) of this Agreement, upon the occurrence of any
of the Additional Termination Events listed in items (i) or (ii) of Part 1(o) of
this Schedule:
(A) Party A shall promptly, but in any event, not later than two (2) Local
Business Days following a Downgrade, give Party B notice of the
circumstances constituting the relevant Downgrade.
(B) In the event of a Level II Downgrade, Party A shall, at its own cost or
benefit, either (x) on or before the 30th day after the date of such Level
II Downgrade, cause a substitute swap
2
counterparty ("X") that (i) is reasonably acceptable to Party B and the
Credit Support Provider, (ii) has a long-term unsecured debt rating (or a
counterparty or financial program rating, or the equivalent) sufficient to
maintain the then-current ratings of the Notes as required by each of the
Rating Agencies to assume the obligations of Party A under the Transaction
or replace the Transaction with a transaction on identical terms, with X to
be "Party A"; or (y) on or before the 15th business day after the date of
such Level II Downgrade, deliver additional credit support ("Level II
Additional Collateral") in addition to the Level I Collateral, in the
manner set forth in the Credit Support Annex, in either case, in such
manner (i) that is satisfactory to Party B and the Credit Support Provider
and (ii) as is necessary for the Rating Agencies to confirm not later than
that day that the arrangements and/or Level II Collateral delivered are
sufficient to maintain or, if applicable, restore their respective ratings
of the Notes to the ratings in effect immediately before the Level II
Downgrade. For this purpose, "Notes" means the IKON Receivables, LLC
Lease-Backed Notes, Series 2001-1.
(C) If Party A shall fail to comply with the requirements of subparagraph
(B) above and Party B designates an Early Termination Date as a result of
the failure, Party B will calculate and certify to Party A the sum of the
Loss, costs and expenses actually incurred by Party B as a result of the
early termination.
Part 2
Tax Representations
(a) Payer Tax Representations. For the purpose of Section 3(e), Party A makes
the following representation:
It is not required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, of any Relevant Jurisdiction
to make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e) or
amounts treated as interest under applicable tax laws) to be made by it to
the other party under this Agreement. In making this representation, it may
rely on:
(i) the accuracy of any representation made by the other party pursuant
to Section 3(f);
(ii) the satisfaction of the agreement of the other party contained in
Section 4(a)(i) or 4(a)(iii) and the accuracy and effectiveness of
any document provided by the other party pursuant to Section 4(a)(i)
or 4(a)(iii); and
(iii) the satisfaction of the agreement of the other party contained in
Section 4(d);
provided that it shall not be a breach of this representation where
reliance is placed on clause (ii), and the other party does not deliver a
form or document under Section 4(a)(iii) by reason of material prejudice to
its legal or commercial position.
(b) Payee Tax Representations. For the purpose of Section 3(f), Party A and
Party B each represent to the other that, in respect of each Transaction
which it enters into through an Office or discretionary agent in the United
States of America ("U.S."), each payment received or to be received by it
under that Transaction will be effectively connected with its conduct of a
trade or business in the U.S.
Part 3
Agreement to Deliver Documents
For the purpose of Sections 4(a)(i) and (ii) of this Agreement, each party
agrees to deliver the following documents, as applicable (and each party's
representation in Section 3(d) will apply to each document required from it as
provided below, other than any opinion of counsel):
(a) Documents to be delivered by Party B: (1) the Indenture dated as of June 1,
2001 among Party B, IOS Capital, Inc. ("IOS") and SunTrust Bank (the
"Indenture") and (2) the Assignment and
3
Servicing Agreement dated as of June 1, 2001 among Party B, IOS Capital,
Inc. and IKON Receivables-1, LLC (the "Assignment and Servicing
Agreement").
(b) Other documents to be delivered by Party A and Party B: evidence reasonably
satisfactory to the other party as to the authority, incumbency and
specimen signature of each person executing any document on its behalf in
connection with this Agreement, Confirmation of the Transaction and any
Credit Support Document.
Part 4
Miscellaneous
(a) Addresses for Notices. For the purpose of Section 12(a):
(i) Addresses for notices or communications to Party A:
Deutsche Bank AG, Head Office
Xxxxxxxxxxxx 00
00000 Xxxxxxxxx Xxxxxxx
Attention: Legal Department
Telex: 411836 or 416731 or 41233
Answerback: DBF-D
With a copy to:
Deutsche Bank AG, New York Branch
Attention Swap Group
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telex: 429166
Answerback: DEUTNYK
(ii) Address for notices or communications to Party B:
IKON Receivables, LLC
0000 Xxxx Xxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000
With a copy to:
General Counsel
IKON Office Solutions, Inc.
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
With a copy to the Credit Support Provider:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(b) Process Agent. For the purpose of Section 13(c):
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Party A appoints as its Process Agent: None.
Party B appoints as its Process Agent: None.
(c) Offices. The provisions of Section 10(a) will apply to this Agreement.
(d) Multibranch Party. For the purpose of Section 10(c):
Party A is not a Multibranch Party.
Party B is not a Multibranch Party.
(e) Calculation Agent. The Calculation Agent is Party A unless Party A is a
Defaulting Party, in which case SunTrust Bank or its designee will be the
Calculation Agent.
(f) Credit Support Document.
With respect to Party A: the Credit Support Annex.
With respect to Party B: that certain Financial Guaranty Insurance Policy
issued by Ambac Assurance Corporation in favor of Party A dated as of June
28, 2001 (the "Policy"), as the same may be amended from time to time.
(g) Credit Support Provider.
Credit Support Provider in relation to Party A: Not applicable.
Credit Support Provider in relation to Party B: Ambac Assurance
Corporation, a Wisconsin stock insurance corporation, pursuant to the
Policy.
(h) Governing Law. This Agreement will be governed by and construed in
accordance with the law of the State of New York, without reference to
choice of laws doctrine.
(i) Netting of Payments. Sub-paragraph (ii) of Section 2(c) of this Agreement
will apply.
(j) Affiliate. Affiliate will have (i) with respect to Party A, the meaning
specified in Section 14, and (ii) with respect to Party B, is not
applicable.
Part 5
Other Provisions
(a) Set-off. The definition of "Set-off" is hereby amended to mean the set-off,
offset, combination of accounts, right of retention or withholding or
similar right or requirement to which the payer of an amount under Section
6 is entitled or subject, arising under this Agreement that is exercised
by, or imposed on, such payer. Neither Party A nor Party B may Set-off
amounts which may arise under another contract or agreement between such
parties against obligations under this Agreement.
(b) Covenant Not to Institute Proceedings. Prior to the date that is one year
and one day after the date on which all of the Notes (as defined in the
Indenture) have been paid in full, Party A shall not acquiesce, petition or
otherwise invoke or cause Party B to invoke the process of any bankruptcy
court of other governmental authority for the purpose of commencing or
sustaining a case against Party B under any federal or state bankruptcy,
insolvency or similar law or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of Party B or
any substantial part of their respective properties or the winding up or
liquidation of affairs of Party B. Party A acknowledges that Party B is a
legal entity separate from any other entity and that the holders of the
Notes have relied on such separateness, and Party A agrees, which agreement
shall be enforceable by such holders at law or through an action for
specific performance, not to seek or support the substantive consolidation
of Party B with any other entity
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as long as the Notes remain outstanding. The provisions of this clause (b)
shall survive any termination of this Agreement.
(c) Successors. Notwithstanding any limitation imposed by Section 7 of this
Agreement or any other provision of this Agreement to the contrary, the
term "Party B" shall include all successors in interest to Party B pursuant
to its limited liability company agreement, and no consent of Party A shall
be required for any transfer or assignment to such successor in interest.
(d) Limited Recourse; No Petition for Bankruptcy. Notwithstanding the
provisions of this Agreement which impose on Party B an obligation
(including any indemnity given hereunder) at any time to make any payment
to Party A, the rights of recourse of Party A for the obligations of Party
B hereunder shall be limited to amounts available under the terms of the
Indenture and Assignment and Servicing Agreement. Accordingly, Party A
shall have no claim for recourse against Party B or any of its directors,
officers, or affiliates, in respect of any amount which is or remains
unsatisfied after the application of those funds and any obligations
hereunder of Party B not so satisfied will automatically be extinguished.
Party A, by entering into this Agreement, hereby covenants and agrees that,
in connection with any obligations of Party B under this Agreement, Party A
will not institute against Party B, or join in any institution against
Party B of, any proceeding under any bankruptcy, insolvency or similar law
until the Notes have been paid in full and the longest applicable
preference period has lapsed. The provisions of this clause (e) shall
survive any termination of this Agreement.
(e) Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDINGS ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT, ANY CREDIT SUPPORT DOCUMENT OR THE
TRANSACTION.
(f) Swap Exemption. Each party hereto represents to the other party on and as
of the date hereof and on each date on which a Transaction is entered into
between them hereunder, in connection with the negotiation of, the entering
into, and the execution of this Agreement, any Credit Support Document to
which it is a party, each Transaction and any other documentation relating
to this Agreement to which it is a party, that:
(i) This Agreement and each Transaction constitute a "swap agreement"
within the meaning of the United States Commodity Futures Trading
Commission Regulations ("CFTC Regulations") Section 35.1(b)(1),
Section 101(53)(B) of the U.S. Bankruptcy Code and the CFTC Policy
Statement concerning Swap Transactions, 54 Fed. Reg. 30694 (July 21,
1989) (the "CFTC Swap Policy Statement").
(ii) It is an "eligible swap participant" as defined in Section 35.1(b)(2)
of the CFTC Regulations.
(iii) Neither this Agreement nor any Transaction is one of a fungible class
of agreements that are standardized as to their material economic
terms, with the meaning of Section 35.2(b) of the CFTC Regulations.
(iv) The economic terms of this Agreement, any Credit Support Document to
which it is a party and the Transaction have been individually
tailored and negotiated by it, and the creditworthiness of the other
party was a material consideration in its entering into or
determining the terms of this Agreement, any such Credit Support
Document and the Transaction (including, without limitation, pricing,
cost and credit enhancement terms), within the meaning of Section
35.2(c) of the CFTC Regulations.
(v) It has entered into this Agreement and the Transaction in conjunction
with a line of its business (including financial intermediation
services) or the financing of its business, within the meaning of the
CFTC Swap Policy Statement.
(g) Relationship between Parties. In connection with the negotiation of, the
entering into, and the confirming of this Agreement, and any other
documentation relating to this Agreement, including any Credit Support
Document, to which it is a party or that it is required by this Agreement
to
deliver, each party hereby represents and warrants, and, in connection with
the negotiation of, the entering into and the confirming of the execution
of the Transaction, each party will be deemed to represent, to the other
party as of the date hereof (or in connection with the Transaction, as of
the date which it entered into the Transaction) that (absent a written
agreement between the parties that expressly imposes affirmative
obligations to the contrary for the Transaction):
(i) Non Reliance. It is acting for its own account, and it has made its
own independent decisions to enter into the Transaction and as to
whether the Transaction is appropriate or proper for it based upon
its own judgment and upon advice from such advisers as it has deemed
necessary. It is not relying on any communication (written or oral)
of the other party as investment advice or as a recommendation to
enter into the Transaction; it being understood that information and
explanations related to the terms and conditions of the Transaction
shall not be considered investment advice or a recommendation to
enter into the Transaction. No communications (written or oral)
received from the other party shall be deemed to be an assurance or
guarantee as to the expected results of the Transaction.
(ii) Assessment and Understanding. It is capable of assessing the merits
of and understanding (on its own behalf or through independent
professional advice), and understands and accepts, the terms,
conditions and risks of the Transaction. It is also capable of
assuming, and assumes, the risks of the Transaction. It has
determined to its satisfaction whether or not the rates, prices or
amounts and other economic terms of the Transaction and the
indicative quotations (if any) provided by the other party reflect
those in the relevant market for similar transactions, and all
trading decisions have been the result of arm's length negotiations
between the parties.
(iii) Status of Parties. The other party is not acting as a fiduciary for
or an adviser to it in respect of the Transaction.
(h) Applicable Only to One Rate Swap Transaction. This Agreement shall be
effective only for a single rate swap transaction between the parties
hereto with a specified Effective Date identical to the issue date for the
Notes (as defined in Part 1(p) of this Schedule) (the "Transaction"),
except that, there shall be two separate confirmations relative to this
Agreement, one such confirmation for the Class A-3 Notes and one such
confirmation for the Class A-4 Notes.
(i) Amendments/waivers. Section 9(b) of this Agreement is hereby amended by (i)
adding the words "or any Credit Support Documents" after the word
"Agreement" in the first line thereof and (ii) by adding the words "and the
Credit Support Provider" after the word "parties" on the third line
thereof.
(j) Payments on Early Termination. Notwithstanding the printed provisions of
this Agreement, Party B shall be under no obligation to make a payment to
Party A pursuant to Section 6(e) of this Agreement as modified by this
Schedule unless such termination is at the direction of the Credit Support
Provider pursuant to Part 5(r)(i) of this Schedule, provided that, in the
event that, as a result of a termination other than at the direction of the
Credit Support Provider pursuant to Part 5(r)(i) of this Schedule, a
qualifying substitute counterparty replaces Party A in accordance with this
Agreement as modified by this Schedule, any payment made by such substitute
counterparty in order to assume the position of substitute counterparty may
be made to Party A to the extent of the amount that would have been payable
by Party B to Party A pursuant to Section 6(e) of this Agreement except for
this paragraph (j).
(k) Confidential Information. Each party may share any information concerning
the other party with any of its Affiliates.
(l) Consent to Telephonic Recording. Each party consents to the monitoring or
recording, at any time and from time to time and to the extent lawful, by
the other party or its affiliates of the telephone conversations of trading
and marketing personnel of the parties and their authorized representatives
or its affiliates in connection with this Agreement or the Transaction; and
the parties waive any further notice of such monitoring or recording and
agree and to the extent lawful to give proper notice and obtain any
necessary consent of such personnel for any such monitoring or recording,
provided that, each party or its affiliates shall have the right to receive
a copy of any
7
such recording upon which the other party or its affiliates would seek to
rely in the event of a dispute.
(m) Change of Account. Section 2(b) of this Agreement is hereby amended by the
addition of the following after the word "delivery" in the first line
thereof:
"to another account in the same legal and tax jurisdiction as the original
account."
(n) Information Relating to Assets. Party A may request Party B to obtain the
Servicer Report (as defined in the Assignment and Servicing Agreement) and
any other reasonably available reports, notices, financial statements or
other information in respect of the assets of Party B that are to be
amounts available under the Indenture for payments due to Party A under
this Agreement.
(o) Transfers/Assignments. Prior notice of any transfer of rights, obligations
or interests under or in this Agreement must be given to the Rating
Agencies and the Credit Support Provider.
(p) Notwithstanding anything to the contrary in this Agreement, Party B will in
no circumstances be required to make any payment of additional amounts of
the kinds contemplated in Section 2(d) of this Agreement.
(q) Amendments. (i) Notwithstanding anything to the contrary contained in the
Agreement, Party A and Party B may not amend the terms of the Transaction
in a material way without first obtaining written confirmation from each
Rating Agency that such amendment will not result in a reduction, downgrade
or withdrawal of the then current rating of the Notes by such Rating
Agency.
(ii) The Indenture shall not be modified in a way which could reasonably be
expected to have a direct and material adverse effect on Party A with
respect to the Transaction without the prior written consent of Party
A, which consent shall not be unreasonably withheld.
(r) Credit Support Provider.
(i) If any event which would have been an Event of Default under Section
5(a) occurs with respect to Party B as the Defaulting Party, then the
Credit Support Provider shall have the right (but not the obligation)
upon notice to Party A, to designate an Early Termination Date with
respect to Party B, with the same effect as if such designation were
made by Party A.
(ii) Notwithstanding Section 2(e), the Credit Support Provider shall not
have any obligation to pay any additional amount calculated by
application of the Default Rate on any amount which accrued under
this Agreement, provided that, the Credit Support Provider shall be
obligated to pay interest following a payment default of the Credit
Support Provider at the Default Rate minus 1.00%.
(iii) Party A and Party B hereby acknowledge and agree that (a) the Credit
Support Provider shall be a third party beneficiary under this
Agreement and under the Confirmation, entitled to enforce its rights
hereunder and thereunder and (b) the Credit Support Provider's
obligations with respect to this Agreement and the Confirmation shall
be limited to the terms of the Policy.
(iv) Party A and Party B hereby acknowledge that to the extent of payment
made by the Credit Support Provider to Party A under the Policy, the
Credit Support Provider shall be fully subrogated to the rights of
Party A against Party B under the Transaction to which such payments
relate, including, but not limited to, the right to receive payment
from Party B and the enforcement of any remedies. Party A hereby
agrees to assign to the Credit Support Provider its right to receive
payment from Party B under the Transaction to the extent of any
payment thereunder by the Credit Support Provider to Party A. Party B
hereby acknowledges and consents to the assignment by Party A to the
Credit Support Provider of any rights and remedies that Party A has
under the Transaction or any other document executed in connection
herewith.
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(v) The representations of Section 3 made by each party to the other
party shall also be deemed made to the Credit Support Provider as
provided in Section 3.
(vi) Section 10 is hereby amended to add the following subsection:
"(c) Any notice that is required to be given to any party shall also
be given to the Credit Support Provider."
(vii) Party A and Party B hereby confirm that in the event Party B fails to
make a payment required by this Agreement or the Confirmation and the
Credit Support Provider makes such payment on behalf of Party B
pursuant to the Policy, such non-payment by Party B shall not
constitute an Event of Default with respect to Party B under this
Agreement or the Confirmation.
9
IN WITNESS WHEREOF, the parties hereto have caused this Schedule to be duly
executed by their officer, hereunto duly authorized, with effect from the date
specified on the first page of this Schedule.
IKON RECEIVABLES, LLC, as Issuer
By: IKON RECEIVABLES FUNDING, INC., its
Manager
By /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
DEUTSCHE BANK AG, NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director Credit Risk Managment
By Xxxx X. XxXxxx
-------------------------------------
Name: Xxxx X. XxXxxx
Title: Director Credit Risk Management
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[Class A-3/Issuer]
June 28, 2001
Rate Swap Transaction
IKON RECEIVABLES, LLC, a Delaware
Limited Liability Company (the
"Issuer"), formed pursuant to that
certain Limited Liability Company
Agreement dated as of January 20,
1999, as amended between IKON
Receivables Funding, Inc., as
Manager and IKON Receivables-1,
LLC.
Ladies and Gentlemen:
The purpose of this letter agreement (this "Confirmation") is to confirm
the terms and conditions of the transaction entered into between us on the Trade
Date specified below (the "Transaction"). This letter agreement constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
The definitions and provisions contained in the 1998 Supplement to the 1991
ISDA Definitions and the 1991 ISDA Definitions (each, as published by the
International Swaps and Derivatives Association, Inc.) are incorporated into
this Confirmation (referred to herein as the "1998 ISDA Definitions" and the
"1991 ISDA Definitions" respectively, or collectively referred to as the "ISDA
Definitions"). For these purposes, all references in those Definitions to a
"Swap Transaction" shall be deemed to apply to the Transaction referred to
herein. In the event of any inconsistency between the 1998 ISDA Definitions and
the 1991 ISDA Definitions, the 1998 ISDA Definitions shall prevail. In the event
of any inconsistency between the ISDA Definitions and this Confirmation, this
Confirmation will govern. Each party represents and warrants to the other that
(i) it is duly authorized to enter into the Transaction and to perform its
obligations hereunder and (ii) the person executing and delivering this
Confirmation on behalf of the party is duly authorized to execute and deliver
it.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated as of June 28, 2001, as amended and supplemented from
time to time (the "Agreement"), between the Issuer and Deutsche Bank AG, New
York Branch ("DB"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Notional Amount: For each Calculation Period, the aggregate outstanding
principal balance of the IKON Receivables LLC Lease-Backed
Notes, Series 2001-1 Class A-3 Notes (the "Issuer
Securities"), used as the basis for calculating the
regularly scheduled Class A-3 Interest Payments thereunder
for the interest period thereunder scheduled to begin and
end on the first and last days, respectively, of that
Calculation Period, as such Interest Payment amount is
identified (subject to part 5 hereof) to DB by the entity
acting at the relevant time as the servicer under the
Assignment and Servicing Agreement (the "Servicer"). The
Notional Amount for the initial Calculation Period is
U.S.$260,000,000.
Trade Date: June 20, 2001.
Effective Date: June 28, 2001.
Termination Date: The earlier of the date on which the Notional Amount is
reduced to zero, and January 16, 2006.
Fixed Amounts:
-------------
Fixed Rate Payer: The Issuer.
Fixed Rate: 4.825% per annum.
Fixed Rate Day Count Fraction: 30/360
Fixed Rate Payer Period End
Dates: The 15th calendar day of each month in each year prior to
and including the Termination Date, commencing on July 15,
2001, with No Adjustment.
Fixed Rate Payer Payment
Dates: Each Fixed Rate Payer Period End Date, subject to
adjustment in accordance with the Following Business Day
Convention.
Fixed Rate Payer Initial Accrues from and including June 28, 2001 to but excluding
Calculation Period: July 15, 2001, with No Adjustment of Period End Dates.
2
Floating Amounts:
----------------
Floating Rate Payer: DB.
Floating Rate Payer Period End
Dates: The 15th calendar day of each month in each year prior to,
and including, the Termination Date, commencing on
July 15, 2001, subject to adjustment in accordance with
the Following Business Day Convention.
Floating Rate Payer Payment Dates: Each Floating Rate Payer Period End Date.
Floating Rate Payer Initial
Calculation Period: Accrues from and including June 28, 2001, to but
excluding, July 16, 2001, with Adjustment of Period End
Dates.
Floating Rate Option USD-LIBOR-BBA
Designated Maturity One Month
Spread: Plus 0.23%
Floating Rate Day Count
Fraction: Actual /360
Reset Dates: The first day of each Calculation Period.
Designated Maturity For Initial
Calculation Period: One-month
Business Days: New York.
Calculation Agent: DB, except as otherwise provided in the Agreement.
3. Account Details
Account for Payments to the Issuer:
SunTrust Bank
ABA# 000000000
DDA# 9088000008
Reference: Collection Account; IKON Receivables, LLC Lease-Backed
Notes, Series 2001-1
3
Account for Payments to DB:
Deutsche Bank, New York
ABA Number: 026 003 780
Account Number: 100440170004
Reference: IKON Receivables, LLC Lease-Backed Notes, Series 2001-1
4. Offices
The Office of DB for the Transaction (and for purposes of notices) is at
the address specified for notices to it in the Schedule to the Agreement. The
Office of the Issuer for the Transaction (and for purposes of notices) is at the
address specified for notices to it in the Schedule to the Agreement.
5. Other Terms
The Assignment and Servicing Agreement dated as of June 28, 2001 (the
"Assignment and Servicing Agreement") by and among IKON Receivables, LLC, IOS
Capital, Inc., as originator and servicer, and IKON Receivables-1 LLC, as
seller, sets forth the agreement of IOS Capital, Inc., as Servicer, with respect
to its duties to communicate to the Issuer and DB information relating to the
interest scheduled to be paid by the Issuer from time to time under the Issuer
Securities. Neither party to the Transaction will have any responsibility to the
other in connection with any failure by the servicer to perform any of those
duties or any delay by it in doing so. Nothing in this provision shall affect
the rights of the parties hereto against the servicer for the failure by it to
perform its obligations under the Assignment and Servicing Agreement as set
forth herein.
THE AGREEMENT AND THIS CONFIRMATION REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR OR CONTEMPORANEOUS
WRITTEN OR ORAL AGREEMENTS BETWEEN THE PARTIES OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
4
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us or by sending to us a letter or telex substantially
similar to this letter, which letter or telex sets forth the material terms of
the Transaction to which this Confirmation relates and indicates agreement to
those terms.
Yours sincerely,
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director Credit Risk Management
By: /s/ Xxxx X. XxXxxx
-------------------------
Name: Xxxx X. XxXxxx
Title: Director Credit Risk Management
Confirmed as of the date first
above written:
IKON RECEIVABLES, LLC, as Issuer
By: IKON RECEIVABLES FUNDING,
INC., its Manager
By: /s/ Xxxxxxx Xxxxx
-------------------------
Name: Xxxxxxx Xxxxx
Title: President
[Signature Page to Class A-3/Issuer Confirmation]
5
[Class A-4/Issuer]
June 28, 2001
Rate Swap Transaction
IKON RECEIVABLES, LLC, a
Delaware Limited Liability Company
(the "Issuer"), formed pursuant to
that certain Limited Liability
Company Agreement dated as of
January 20, 1999, as amended
between IKON Receivables Funding,
Inc., as Manager and IKON
Receivables-1, LLC.
Ladies and Gentlemen:
The purpose of this letter agreement (this "Confirmation") is to confirm
the terms and conditions of the transaction entered into between us on the Trade
Date specified below (the "Transaction"). This letter agreement constitutes a
"Confirmation" as referred to in the Master Agreement specified below.
The definitions and provisions contained in the 1998 Supplement to the 1991
ISDA Definitions and the 1991 ISDA Definitions (each, as published by the
International Swaps and Derivatives Association, Inc.) are incorporated into
this Confirmation (referred to herein as the "1998 ISDA Definitions" and the
"1991 ISDA Definitions" respectively, or collectively referred to as the "ISDA
Definitions"). For these purposes, all references in those Definitions to a
"Swap Transaction" shall be deemed to apply to the Transaction referred to
herein. In the event of any inconsistency between the 1998 ISDA Definitions and
the 1991 ISDA Definitions, the 1998 ISDA Definitions shall prevail. In the event
of any inconsistency between the ISDA Definitions and this Confirmation, this
Confirmation will govern. Each party represents and warrants to the other that
(i) it is duly authorized to enter into the Transaction and to perform its
obligations hereunder and (ii) the person executing and delivering this
Confirmation on behalf of the party is duly authorized to execute and deliver
it.
1. This Confirmation supplements, forms part of, and is subject to, the
Master Agreement dated as of June 28, 2001, as amended and supplemented from
time to time (the "Agreement"), between the Issuer and Deutsche Bank AG, New
York Branch ("DB"). All provisions contained in the Agreement govern this
Confirmation except as expressly modified below.
2. The terms of the particular Transaction to which this Confirmation
relates are as follows:
Notional Amount: For each Calculation Period, the aggregate outstanding
principal balance of the IKON Receivables LLC Lease-Backed
Notes, Series 2001-1 Class A-4 Notes (the "Issuer
Securities"), used as the basis for calculating the
regularly scheduled Class A-4 Interest Payments thereunder
for the interest period thereunder scheduled to begin and
end on the first and last days, respectively, of that
Calculation Period, as such Interest Payment amount is
identified (subject to part 5 hereof) to DB by the entity
acting at the relevant time as the servicer under the
Assignment and Servicing Agreement (the "Servicer"). The
Notional Amount for the initial Calculation Period is
U.S.$126,200,000.
Trade Date: June 20, 2001.
Effective Date: June 28, 2001.
Termination Date: The earlier of the date on which the Notional Amount is
reduced to zero, and October 15, 2008.
Fixed Amounts:
-------------
Fixed Rate Payer: The Issuer.
Fixed Rate: 5.435% per annum.
Fixed Rate 30/360
Day Count
Fraction:
Fixed Rate The 15th calendar day of each month in each year prior to,
Payer Period and including, the Termination Date, commencing on July 15,
End Dates: 2001, with No Adjustment.
Fixed Rate Payer
Payment Dates: Each Fixed Rate Payer Period End Date, subject to adjustment
in accordance with the Following Business Day Convention.
Fixed Rate Payer
Initial
Calculation Accrues from and including June 28, 2001 to but excluding
Period: July 15, 2001, with No Adjustment of Period End Dates.
2
Floating Amounts:
----------------
Floating Rate DB.
Payer:
Floating Rate Payer The 15th calendar day of each month in each year prior to,
Period End Dates: and including, the Termination Date, commencing on July 15,
2001, subject to adjustment in accordance with the Following
Business Day Convention.
Floating Rate Each Floating Rate Payer Period End Date.
Payer Payment
Dates:
Floating Rate Accrues from and including June 28, 2001, to but
Payer Initial excluding, July 16, 2001, with Adjustment of Period End
Calculation Dates.
Period:
Floating Rate USD-LIBOR-BBA
Option
Designated One Month
Maturity
Spread: Plus 0.26%
Floating Rate Actual /360
Day Count
Fraction:
Reset Dates: The first day of each Calculation Period.
Designated
Maturity For
Initial
Calculation
Period: One-month
Business Days: New York.
Calculation Agent: DB, except as otherwise provided in the Agreement.
3. Account Details
Account for Payments to the Issuer:
SunTrust Bank
ABA# 000000000
DDA# 9088000008
3
Reference: Collection Account; IKON Receivables, LLC
Lease-Backed Notes, Series 2001-1
Account for Payments to DB:
Deutsche Bank, New York
ABA Number: 026 003 780
Account Number: 100440170004
Reference: IKON Receivables, LLC Lease-Backed Notes,
Series 2001-1
4. Offices
The Office of DB for the Transaction (and for purposes of notices) is at
the address specified for notices to it in the Schedule to the Agreement. The
Office of the Issuer for the Transaction (and for purposes of notices) is at the
address specified for notices to it in the Schedule to the Agreement.
5. Other Terms
The Assignment and Servicing Agreement dated as of June 28, 2001 (the
"Assignment and Servicing Agreement") by and among IKON Receivables, LLC, IOS
Capital, Inc., as originator and servicer, and IKON Receivables-1 LLC, as
seller, sets forth the agreement of IOS Capital, Inc., as Servicer, with respect
to its duties to communicate to the Issuer and DB information relating to the
interest scheduled to be paid by the Issuer from time to time under the Issuer
Securities. Neither party to the Transaction will have any responsibility to the
other in connection with any failure by the servicer to perform any of those
duties or any delay by it in doing so. Nothing in this provision shall affect
the rights of the parties hereto against the servicer for the failure by it to
perform its obligations under the Assignment and Servicing Agreement as set
forth herein.
THE AGREEMENT AND THIS CONFIRMATION REPRESENT THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR OR CONTEMPORANEOUS
WRITTEN OR ORAL AGREEMENTS BETWEEN THE PARTIES OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
4
Please confirm that the foregoing correctly sets forth the terms of our
agreement by executing the copy of this Confirmation enclosed for that purpose
and returning it to us or by sending to us a letter or telex substantially
similar to this letter, which letter or telex sets forth the material terms of
the Transaction to which this Confirmation relates and indicates agreement to
those terms.
Yours sincerely,
DEUTSCHE BANK AG, NEW YORK BRANCH
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Director Credit Risk Management
By: /s/ Xxxx X. XxXxxx
--------------------------------
Name: Xxxx X. XxXxxx
Title: Director Credit Risk Management
Confirmed as of the date first
above written:
IKON RECEIVABLES, LLC, as Issuer
By: IKON RECEIVABLES FUNDING,
INC., its Manager
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Name: Xxxxxxx Xxxxx
Title: President
[Signature Page to Class A-4/Issuer Confirmation]
5
