Execution Copy
AMBAC ASSURANCE CORPORATION,
and
CHASE SECURITIES INC.,
BANC OF AMERICA SECURITIES LLC,
DEUTSCHE BANC ALEX. XXXXX,
XXXXXX BROTHERS INC.
AND
PNC CAPITAL MARKETS, INC.
INDEMNIFICATION AGREEMENT
$498,510,000 in aggregate principal amount of
IKON RECEIVABLES, LLC LEASE-BACKED NOTES
Dated as of June 2, 2000
TABLE OF CONTENTS
Page
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Section 1. Defined Terms....................................... 1
Section 2. Other Definitional Provisions....................... 1
Section 3. Representations and Warranties of the Underwriters.. 1
Section 4. Representations and Warranties of the Insurer....... 2
Section 5. Indemnification..................................... 3
Section 6. Amendments, Etc..................................... 4
Section 7. Notices............................................. 4
Section 8. Severability........................................ 5
Section 9. Governing Law....................................... 5
Section 10. Counterparts........................................ 5
Section 11. Headings........................................... 5
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INDEMNIFICATION AGREEMENT, dated as of June 2, 2000, by and among
Ambac Assurance Corporation, as Insurer, and Chase Securities Inc., Banc of
America Securities LLC, Deutsche Banc Alex. Xxxxx, Xxxxxx Brothers Inc. and PNC
Capital Markets, Inc., as the Underwriters.
Section 1. Defined Terms. Unless the context clearly requires otherwise,
all capitalized terms used but not defined herein shall have the respective
meanings assigned to them in the Insurance and Indemnity Agreement, the
Certificate Guaranty Insurance Policy No. AB0366BE issued by the Insurer in
favor of the Trustee (the "Note Policy") or the Financial Guaranty Insurance
Policy No. SF0350BE issued by the Issuer in favor of The Chase Manhattan Bank
(the "Swap Policy" and together with the Note Policy, the "Policies"). For
purposes of this Indemnification Agreement, the following terms shall have the
following meanings:
"Indenture" means the Indenture dated as of June 1, 2000 among the Issuer,
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the Indenture Trustee and the Servicer.
"Insurance and Indemnity Agreement" means the Insurance and Indemnity
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Agreement (as may be amended, modified or supplemented from time to time), dated
as of June 2, 2000, by and among the Insurer, the Seller, the Issuer, IOS
Capital, and the Indenture Trustee.
"Insurer" means Ambac Assurance Corporation, a Wisconsin domiciled stock
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insurance company, or any successor thereto, as issuer of the Policy.
"Insurer Information" has the meaning given such term in Section 4.
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"Notes" means any notes authorized by, and authenticated and delivered
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under the Indenture.
"Underwriter Information" has the meaning given such term in Section 3.
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"Underwriters" means Chase Securities Inc., Banc of America Securities LLC,
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Deutsche Banc Alex. Xxxxx, Xxxxxx Brothers Inc. and PNC Capital Markets, Inc.
Section 2. Other Definitional Provisions. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Indemnification
Agreement shall refer to this Indemnification Agreement as a whole and not to
any particular provision of this Indemnification Agreement, and Section,
subsection, Schedule and Exhibit references are to this Indemnification
Agreement unless otherwise specified. The meanings given to terms defined herein
shall be equally applicable to both the singular and plural forms of such terms.
The words "include" and "including" shall be deemed to be followed by the phrase
"without limitation."
Section 3. Representations and Warranties of the Underwriters. Each of the
Underwriters, severally and not jointly, represents and warrants as of the
Closing Date as follows:
(a) Offering Document. The Underwriters will not use, or distribute to
other broker-dealers for use, any Offering Document in connection with the offer
and sale of the Notes unless
such Offering Document includes such information relating to the Insurer as has
been furnished by the Insurer for inclusion therein and has been approved by the
Insurer.
(b) Underwriter Information. As to each Underwriter, all material provided
in writing to the Company for inclusion in the Offering Document (as revised
from time to time, and as included in such Offering Document or any other
Offering Document), such information being the second, third, fifth and sixth
paragraphs of the section headed "Underwriting" in the Prospectus Supplement
dated May 25, 2000 with respect to the Notes (the "Underwriter Information"),
insofar as such information relates to such Underwriter, shall be true and
correct in all material respects.
(c) Compliance with Laws. Each Underwriter will comply in all material
respects with all legal requirements in connection with its offers and sales of
the Securities and will make such offers and sales in the manner provided in the
Offering Document.
Section 4. Representations and Warranties of the Insurer. The Insurer
represents and warrants to the Underwriters as follows:
(a) Organization and Licensing. The Insurer is a duly organized and
validly existing Wisconsin stock insurance corporation.
(b) Corporate Power. The Insurer has the corporate power and authority to
issue the Policies and execute and deliver this Indemnification Agreement and
the Insurance Agreement and to perform all of its obligations hereunder and
thereunder.
(c) Authorization; Approvals. Proceedings legally required for the
issuance of the Policies and the execution, delivery and performance of this
Indemnification Agreement and the Insurance and Indemnity Agreement have been
taken and licenses, orders, consents or other authorizations or approvals of any
governmental boards or bodies legally required for the enforceability of the
Policies have been obtained or are not material to the enforceability of the
Policies.
(d) Enforceability. The Policies, when issued, and this Indemnification
Agreement and the Insurance and Indemnity Agreement will each constitute a
legal, valid and binding obligation of the Insurer, enforceable in accordance
with its terms, subject to bankruptcy, insolvency, reorganization, moratorium,
receivership and other similar laws affecting creditors' rights generally and by
general principles of equity and subject to principles of public policy limiting
the right to enforce the indemnification provisions contained therein and
herein, insofar as such provisions relate to indemnification for liabilities
arising under federal securities laws.
(e) Financial Information. The balance sheet of the Insurer as of December
31, 1999 and the related statements of income, stockholder's equity and cash
flows for the three fiscal years ended December 31, 1999, and the accompanying
footnotes, and the unaudited balance sheet of the Insurer as of March 31, 2000,
and the unaudited related statements of income, stockholder's equity and cash
flows for the three month period ending March 31, 2000, fairly present in all
material respects the financial condition of the Insurer as of such dates and
for the periods covered by such statements in accordance with generally accepted
accounting principles
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consistently applied. Any future financial statements of the Insurer
incorporated by reference into the Offering Document relating to the Notes will
fairly present in all material respects the financial condition of the Insurer
as of their dated dates in accordance with generally accepted accounting
principles consistently applied. Since March 31, 2000, there has been no change
in such financial condition of the Insurer that would materially and adversely
affect its ability to perform its obligations under the Policies.
(f) Insurer Information. The information relating to the Insurer in the
Prospectus Supplement dated May 25,2000 as of the date hereof under the caption
"The Insurer and the Policy" and the financial statements of the Insurer
incorporated by reference into the Offering Document (together the "Insurer
Information") are true and correct in all material respects and do not contain
any untrue statement of a material fact.
Section 5. Indemnification.
(a) Each of the Underwriters agrees, severally and not jointly, to pay,
and to protect, indemnify and save harmless, the Insurer and its officers,
directors, shareholders, employees, agents and each Person, if any, who controls
the Insurer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act, from and against, any and all claims,
losses, liabilities (including penalties), actions, suits, judgments, demands,
damages, costs or expenses (including reasonable fees and expenses of attorneys,
consultants and auditors and reasonable costs of investigations) of any nature
arising out of or by reason of any untrue statement of a material fact contained
in the Underwriter Information with respect to such Underwriter or a breach of
any of the representations and warranties of such Underwriter contained in
Section 3.
(b) The Insurer agrees to pay, and to protect, indemnify and save
harmless, each of the Underwriters and its officers, directors, shareholders,
employees, agents and each Person, if any, who controls the Underwriters within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Securities Exchange Act from and against, any and all claims, losses,
liabilities (including penalties), actions, suits, judgments, demands, damages,
costs or expenses (including reasonable fees and expenses of attorneys,
consultants and auditors and reasonable costs of investigations) of any nature
arising out of or by reason of any untrue statement of a material fact contained
in the Insurer Information or a breach of any of the representations and
warranties of the Insurer contained in Section 4.
(c) If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Person (individually, an "Indemnified
Party" and, collectively, the "Indemnified Parties") in respect of which the
indemnity provided in this Section 5(a) or (b) may be sought from the
Underwriters, on the one hand, or the Insurer, on the other (each, an
"Indemnifying Party") hereunder, each such Indemnified Party shall promptly
notify the Indemnifying Party in writing, and the Indemnifying Party shall
assume the defense thereof, including the employment of counsel satisfactory to
the Indemnified Party and the payment of all expenses. The Indemnified Party
shall have the right to employ separate counsel in any such action and to
participate in the defense thereof at the expense of the Indemnified Party;
provided, however, that the fees and expenses of such separate counsel shall be
at the expense of the Indemnifying Party if (i) the Indemnifying Party has
agreed to pay such fees and expenses, (ii)
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the Indemnifying Party shall have failed to assume the defense of such action or
proceeding and employ counsel reasonably satisfactory to the Indemnified Party
in any such action or proceeding or (iii) the named parties to any such action
or proceeding (including any impleaded parties) include both the Indemnified
Party and the Indemnifying Party, and the Indemnified Party shall have been
advised by counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the Indemnifying
Party (in which case, if the Indemnified Party notifies the Indemnifying Party
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Party, the Indemnifying Party shall not have the right to assume
the defense of such action or proceeding on behalf of such Indemnified Party, it
being understood, however, that the Indemnifying Party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for the
Indemnified Parties, which firm shall be designated in writing by the
Indemnified Party). The Indemnifying Party shall not be liable for any
settlement of any such action or proceeding effected without its written consent
to the extent that any such settlement shall be prejudicial to the Indemnifying
Party, but, if settled with its written consent, or if there is a final judgment
for the plaintiff in any such action or proceeding with respect to which the
Indemnifying Party shall have received notice in accordance with this subsection
(c), the Indemnifying Party agrees to indemnify and hold the Indemnified Parties
harmless from and against any loss or liability by reason of such settlement or
judgment.
(d) To provide for just and equitable contribution if the indemnification
provided by the Indemnifying Party is determined to be unavailable or
insufficient to hold harmless any Indemnified Party (other than due to
application of this Section), each Indemnifying Party shall contribute to the
losses incurred by the Indemnified Party on the basis of the relative fault of
the Indemnifying Party, on the one hand, and the Indemnified Party, on the other
hand. The relative fault of each Indemnifying Party, on the one hand, and each
Indemnified Party, on the other, shall be determined by reference to, among
other things, whether the breach of, or alleged breach of, any of its
representations and warranties set forth within the control of, the Indemnifying
Party or the Indemnified Party, and the parties relative intent, knowledge,
access to information and opportunity to correct or prevent such breach. No
person guilty of fraudulent misrepresentation (within the meaning Section
(11)(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. No Underwriter shall be
responsible for any amount in excess of an amount equal to the excess of the
sales price to the public of the Notes purchased by such Underwriter over the
price paid therefor by such Underwriter.
Section 6. Amendments, Etc. This Indemnification Agreement may be amended,
modified, supplemented or terminated only by written instrument or written
instruments signed by the parties hereto.
Section 7. Notices. All demands, notices and other communications to be
given hereunder shall be in writing (except as otherwise specifically provided
herein) and shall be mailed by registered mail or personally delivered and
telecopied to the recipient as follows:
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(a) To the Insurer:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Department
Facsimile: (000) 000-0000
(b) To the Underwriters:
c/o Chase Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Global Securitized Finance
Facsimile: (000) 000-0000
A party may specify an additional or different address or addresses by
writing mailed or delivered to the other parties as aforesaid. All such notices
and other communications shall be effective upon receipt.
Section 8. Severability. In the event that any provision of this
Indemnification Agreement shall be held invalid or unenforceable by any court of
competent jurisdiction, the parties hereto agree that such holding shall not
invalidate or render unenforceable any other provision hereof. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by any party hereto is unavailable or unenforceable
shall not affect in any way the ability of such party to pursue any other remedy
available to it.
Section 9. Governing Law. This Indemnification Agreement shall be governed
by and construed in accordance with the laws of the State of New York (without
giving effect to the conflict of laws provisions thereof).
Section 10. Counterparts. This Indemnification Agreement may be executed in
counterparts by the parties hereto, and all such counterparts shall constitute
one and the same instrument.
Section 11. Headings. The headings of Sections and the Table of Contents
contained in this Indemnification Agreement are provided for convenience only.
They form no part of this Indemnification Agreement and shall not affect its
construction or interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, all as
of the day and year first above mentioned.
Ambac Assurance Corporation,
as Insurer
By: /s/ Xxxxxxxx X. Xxxxxx
_________________________________
Name: Xxxxxxxx Xxxxxx
Title: First Vice President
S-1
Chase Securities Inc.,
as an Underwriter
By: /s/ Xxxx Xxxxxxx
_________________________________
Name: Xxxx Xxxxxxx
Title: Vice President
S-2
Banc of America Securities LLC,
as an Underwriter
By: /s/ Xxxx Xxxxxxx
_________________________________
Name: Xxxx Xxxxxxx
Title: Principal
S-3
Deutsche Banc Alex. Xxxxx,
as an Underwriter
By: /s/ Xxxxxxxxxxx Xxxxxxx
_________________________________
Name: Xxxxxxxxxxx Xxxxxxx
Title: Director
S-4
Xxxxxx Brothers Inc.
as an Underwriter
By: /s/ Xxxxxxx X. Lighten
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Name: Xxxxxxx X. Lighten
--------------------------------
Title: Managing Director
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S-5
PNC Capital Markets, Inc.,
as an Underwriter
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
--------------------------------
Title: Director
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S-6
