Exhibit 1.2
EXECUTION COPY
U.S. $250,000,000
IOS CAPITAL, INC.
9.750% NOTES DUE 2004
UNDERWRITING AGREEMENT
June 12, 2001
▇▇▇▇▇▇ Brothers Inc.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, New York 10285-1200
Dear Sirs:
IOS Capital, Inc., a Delaware corporation (the"Company"), confirms its
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agreement with you (the "Underwriter") with respect to the issuance and sale by
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the Company to the Underwriter of an aggregate of U.S.$250,000,000 principal
amount of its 9.750% Notes due 2004 (the "Securities"). The Securities are to be
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issued pursuant to an indenture, dated as of June 30, 1995, as amended and
supplemented by a first supplemental indenture, dated as of June 4, 1997, and a
second supplemental indenture, dated as of June 12, 2001 (collectively, the
"Indenture"), between the Company and The Chase Manhattan Bank, as trustee (the
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"Trustee").
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As used in this Agreement, the term (i) "Basic Prospectus" means the
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prospectus contained in the Registration Statement at the Effective Date, as
updated by the prospectus dated June 6, 2001 filed with the Commission in
conjunction with a preliminary prospectus supplement dated June 6, 2001 pursuant
to Rule 424(b)(5) under the Act on June 7, 2001; (ii) "Business Day" means any
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day other than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close in
New York City; (iii) "Effective Date" means each date and time that the
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Registration Statement, any post-effective amendment or amendments thereto
became or becomes effective; (iv) "Final Prospectus" means the prospectus
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supplement to the Basic Prospectus relating to the Securities that was first
filed pursuant to Rule 424(b) under the Act after the Execution Time, together
with the Basic Prospectus; (v) "Preliminary Final Prospectus" means any
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preliminary prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the Final
Prospectus, together with the Basic Prospectus; and (vi) "Registration
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Statement" means the registration statement no. 333-27141, including exhibits
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and financial statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective prior to the Closing Date,
shall also mean such registration statement as so amended. Any reference herein
to the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein filed under the Exchange Act; any
reference herein to information that is "contained," "included" or "stated" in
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus or other references of like import, shall be
deemed to mean and include all information that is incorporated by reference in
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference
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herein to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus
or the Final Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act deemed to be incorporated therein by
reference. For purposes of this Agreement, all references to the Registration
Statement, the Basic Prospectus, any Preliminary Final Prospectus, the Final
Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed (if so required pursuant to the Act) with the
Commission pursuant to its Electronic Date Gathering, Analysis and Retrieval
system ("▇▇▇▇▇").
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SECTION 1. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Underwriter as of the
Execution Time and as of the Closing Date, as follows:
(a) General. The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended, and the rules and regulations of
the Securities and Exchange Commission promulgated thereunder (the "Act") and
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has prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement (File Number 333-27141) on Form S-3,
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including a related basic prospectus, for registration under the Act of the
offering and sale of debt securities, which include the Securities. The Company
may have filed one or more amendments thereto and one or more Preliminary Final
Prospectuses, each of which has previously been furnished to the Underwriter.
The Registration Statement has become effective under the Act and no stop order
suspending the effectiveness of the Registration Statement has been issued under
the Act and no proceedings for that purpose have been instituted or are pending
or, to the knowledge of the Company, are threatened by the Commission, and any
request on the part of the Commission for additional information has been
complied with. The Basic Prospectus and each Preliminary Final Prospectus filed
before the Execution Time complied when so filed in all material respects with
the Act and was filed in the manner and within the time period required by Rule
424(b) under the Act. The Company will next file with the Commission the Final
Prospectus in accordance with Rules 415 and 424(b) under the Act. As filed, the
Final Prospectus shall contain all required information and, except to the
extent the Underwriter shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to the Underwriter prior to the date
and time that this Agreement is executed and delivered by the parties hereto
(the "Execution Time") or, to the extent not completed at the Execution Time,
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shall contain only such specific additional information and other changes
(beyond those contained in the Preliminary Final Prospectus dated June 6, 2001)
as the Company has advised the Underwriter, prior to the Execution Time, will be
included or made therein. The Registration Statement, at the Execution Time,
meets the requirements set forth in Rule 415(a) (1) (x) under the Act. Each
Preliminary Final Prospectus and the Final Prospectus delivered to the
Underwriters for use in connection with the offering of the Securities will, at
the time of such delivery, be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T under the Act.
(b) Registration Statement, Prospectus and Indenture: Contents. On the
Effective Date, the Registration Statement did, and when the Final Prospectus is
first filed in accordance with Rule 424(b) under the Act and on the Closing
Date, the Final Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the Act, the Securities
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Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder (the "Exchange Act") and the Trust Indenture
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Act of 1939, as amended, and the rules and regulations of the Commission
promulgated thereunder (the "Trust Indenture Act"); on the Effective Date and at
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the Execution Time, the Registration Statement did 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 not
misleading; on the Effective Date and on the Closing Date the Indenture did or
will comply in all material respects with the applicable requirements of the
Trust Indenture Act; and, on the date of any filing pursuant to Rule 424(b)
under the Act and on the Closing Date, the Final Prospectus (together with any
supplement thereto) 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 light of the circumstances under which they were made, not misleading; when
any Preliminary Final Prospectus was first filed with the Commission and when
any amendment thereof or supplement thereto was first filed with the Commission,
such Preliminary Final Prospectus as amended or supplemented did 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 not
misleading; provided, however, that the Company makes no representations or
warranties as to (i) that part of the Registration Statement which constitutes
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or omitted
from the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus (or any supplement thereto) or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter specifically for
inclusion in the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus (or any supplement thereto) or the Final Prospectus (or any
supplement thereto).
(c) No Defaults. Each of the Company and the Subsidiaries is not in
violation of its corporate charter or by-laws (or equivalent documents) or in
default under any agreement, indenture or instrument, the effect of which
violation or default would be material to the Company and the Subsidiaries taken
as a whole; the execution, delivery and performance of this Agreement, the
Indenture, the Securities, the Support Agreement, dated October 22, 1996 (the
"1996 Support Agreement") between the Company and IKON Office Solutions, Inc.
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("IKON"), and compliance by the Company with the provisions of the Securities
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and the Indenture have been duly authorized by all necessary corporate action
and will not conflict with, result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company or any Subsidiary
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws (or equivalent documents) of the Company or any Subsidiary, or any
order, rule or regulation of any court or governmental agency having
jurisdiction over the Company, the Subsidiaries or their respective properties.
(d) Material Changes or Material Transactions. Except as described in
the Registration Statement and the Final Prospectus, (i) there has not been any
material adverse change in, or any adverse development which materially affects,
the business, properties, condition (financial or other), results of operations
or prospects of the Company and the Subsidiaries taken as a whole, and (ii)
there has been no material transaction entered into by the Company or any
Subsidiary other than those in the ordinary course of business.
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(e) Accountants. PricewaterhouseCoopers, LLP, whose report appears in
the Company's Annual Report on Form 10-K which is incorporated by reference in
the Registration Statement and the Final Prospectus, are and, during the period
covered by their report, were independent public accountants as required by the
Act. Ernst & Young LLP, whose report appears in the Company's Annual Report on
Form 10-K which is incorporated by reference in the Registration Statement and
the Final Prospectus, were, during the periods covered by their report,
independent public accountants with respect to the Company as required by the
Act.
(f) Validity of the Indenture and the Securities. (i) The Indenture has
been duly authorized, executed and delivered by the Company and the Trustee, and
has been duly qualified under the Trust Indenture Act, and constitutes the valid
and legally binding obligation of the Company, enforceable in accordance with
its terms; (ii) the Securities are in a form contemplated by the Indenture and
have been duly authorized for issuance and sale pursuant to this Agreement and,
when executed, authenticated, delivered and paid for as provided in this
Agreement and in the Indenture, the Securities will be validly issued and
outstanding, and will constitute valid and legally binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in accordance
with their terms and the terms of the Indenture; and (iii) the Securities and
the Indenture conform to the descriptions thereof contained in the Registration
Statement and the Final Prospectus. The validity, enforceability and legally
binding nature of the Indenture and the Securities are subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
(g) Due Incorporation and Qualification. The Company and each
subsidiary or other entity controlled directly or indirectly by the Company
(collectively, the "Subsidiaries"), has been duly incorporated or constituted
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(as applicable), is validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation (as applicable), is duly qualified to
do business and in good standing as a foreign corporation or business entity (as
applicable) in each jurisdiction in which its ownership of properties or the
conduct of its businesses requires such qualification (except where the failure
to obtain such qualification would not have a material adverse effect on the
Company and the Subsidiaries taken as a whole), and has the power and authority
necessary to own or hold its properties and to conduct the businesses in which
it is engaged, as and to the extent described in the Final Prospectus.
(h) Validity of the Support Agreement. (i) The 1996 Support Agreement
between the Company and IKON has been duly authorized, executed and delivered by
each of the Company and IKON and constitutes the valid and legally binding
obligation of the Company and IKON, enforceable in accordance with its terms;
and (ii) such agreement conforms to the description thereof contained in the
Registration Statement and the Final Prospectus. The validity, enforceability
and legally binding nature of such agreement is subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally, general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
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(i) Ownership of Property. Each of the Company and the Subsidiaries
owns, or has valid rights to use, all items of real and personal property which
are material to the business of the Company and the Subsidiaries, free and clear
of all liens, encumbrances and claims which may materially interfere with the
business, properties, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole.
(j) Legal Proceedings. Except as disclosed in the Registration
Statement and in the Final Prospectus, there is no material litigation or
governmental proceeding pending or, to the knowledge of the Company, threatened
against the Company or any Subsidiary which might result in any material adverse
change in the condition (financial or other), results of operations, business,
property, or prospects of the Company and the Subsidiaries taken as a whole or
which is required to be disclosed in the Registration Statement and the Final
Prospectus.
(k) Financial Statements. The audited financial statements of the
Company and its subsidiaries (and the notes related thereto), incorporated by
reference in the Registration Statement and the Final Prospectus present fairly
the financial condition, results of operations, changes in shareholder's equity
and cash flows of the entities purported to be shown thereby in conformity with
generally accepted accounting principles, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the period or
periods involved; and the supporting schedules, if applicable, incorporated by
reference in the Registration Statement and the Final Prospectus present fairly
the information required to be stated therein. The unaudited financial
statements of the Company and its subsidiaries (and the notes related thereto),
incorporated by reference in the Registration Statement and the Final Prospectus
present fairly the financial position of the Company and its subsidiaries at the
dates and for the periods indicated in conformity with generally accepted
accounting principles (except for the absence of notes) applied on a consistent
basis throughout the periods shown, subject to normally recurring changes, and
prepared in accordance with the instructions to Form 10-Q under the Exchange
Act. The summary financial data of the Company and its subsidiaries included in
the Final Prospectus presents fairly the information shown therein as of the
respective dates and for the respective periods specified and the summary
financial data has been presented on a basis consistent with the financial
statements incorporated by reference in the Registration Statement and in the
Final Prospectus and other financial information. The financial data of IKON and
its subsidiaries incorporated by reference in the Registration Statement
presents fairly the information shown therein as of the respective dates and for
the respective periods specified therein.
(l) Documents Incorporated by Reference. The documents incorporated by
reference in the Registration Statement and the Final Prospectus have been
prepared by the Company in conformity with the applicable requirements of the
Act and the Exchange Act, and none of such documents contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
such documents have been timely filed as required thereby.
(m) Exhibits to Registration Statement. There are no contracts or other
documents which are required to be filed as exhibits to the Registration
Statement by the Act, or which are required to be filed as exhibits to any
document incorporated by reference in the Final Prospectus by the Exchange Act,
which have not been filed as exhibits to the Registration Statement or to such
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document or incorporated therein by reference as permitted by the Act or the
Exchange Act, as the case may be.
(n) Licenses, Approvals and Consents. Each of the Company and the
Subsidiaries has all licenses, approvals and consents for the conduct of its
business the failure of which to have would have a material adverse effect on
the business, properties, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole. No consent, approval,
authorization or order of any court or governmental agency or body is required
for the consummation of the transactions contemplated herein except such as have
been obtained under the Act and the filing of the Final Prospectus pursuant to
Rule 424(b) under the Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the sale of the Securities as contemplated
by this Agreement.
(o) Investment Company Act. The Company is not required to register
under the provisions of the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and no action need be taken with respect to or under
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the Investment Company Act by reason of the issuance of the Securities by the
Company.
(p) Rating. The Securities have been rated by a "nationally recognized
statistical rating agency" (as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act), including one or both of ▇▇▇▇▇'▇
Investor Services, Inc. and Standard & Poor's Corporation.
(q) Doing Business with Cuba. The Company is in compliance with all
provisions of Section 1 of Laws of Florida, Chapter 92-198, An Act Relating to
Disclosure of Doing Business with Cuba, and the Company further agrees that if
it commences engaging in business with the government of Cuba or with any person
or affiliate located in Cuba after the date the Registration Statement becomes
or has become effective with the Commission or with the Florida Department of
Banking and Finance (the "Department"), whichever date is later, or if the
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information reported in the Final Prospectus, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba changes in
any material way, the Company will provide the Department notice of such
business or change, as appropriate, in a form acceptable to the Department.
(r) True and Complete Documents. The certificates delivered pursuant to
Section 5(g) hereof and all other documents delivered by the Company or its
representatives in connection with the issuance and sale of the Securities were
on the dates on which they were delivered, or will be on the dates on which they
are to be delivered, true and complete in all material respects. Any certificate
signed by an officer of the Company and delivered to the Underwriter or counsel
for the Underwriter in connection with the offering of the Securities shall be
deemed a representation and warranty by the Company, as to matters covered
thereby, to the Underwriter.
SECTION 2. PURCHASE AND SALE
(a) General. Subject to the terms and conditions and in reliance upon
the representations and warranties herein set forth, the Company agrees to sell
the Securities to the Underwriter, and the Underwriter agrees to purchase the
Securities from the Company, at a purchase price of 98.366%
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of the principal amount thereof, plus accrued interest, if any, from June 15,
2001 to the Closing Date (the "Purchase Price").
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(b) Delivery and Payment. Delivery of and payment for the Securities
shall be made on June 15, 2001, 9:00 am, New York City time, or at such time on
such later date not more than three Business Days after the foregoing date as
the Underwriter shall designate, which date and time may be postponed by
agreement between the Underwriter and the Company (such date and time of
delivery and payment for the Securities being herein called the "Closing Date").
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Delivery of the Securities shall be made to the Underwriter against payment by
the Underwriter of the Purchase Price to or upon the order of the Company by
wire transfer payable in same-day funds to an account specified by the Company.
The documents required to be delivered at closing pursuant to the terms of this
Agreement shall be delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel to
the Underwriter, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Underwriter shall otherwise instruct.
(c) Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Securities for sale to the public as set forth in the
Final Prospectus.
SECTION 3. COVENANTS OF THE COMPANY
The Company covenants and agrees:
(a) Delivery of Signed Registration Statement. To furnish promptly to
the Underwriter and to counsel to the Underwriter a signed photostatic copy of
the Registration Statement as originally filed and each amendment or supplement
thereto.
(b) Delivery of Other Documents. To deliver promptly to the
Underwriter, and in such number as it may request, each of the following
documents: (i) conformed copies of the Registration Statement (excluding
exhibits other than the computation of the ratio of earnings to fixed charges,
the Indenture, this Agreement and such other exhibits that the Underwriter may
request) and each amendment thereto, (ii) each Preliminary Final Prospectus,
(iii) the Final Prospectus and (iv) any documents incorporated by reference in
either the Preliminary Final Prospectus or the Final Prospectus.
(c) Revisions to Final Prospectus - Material Changes. If, at any time
when a prospectus relating to the Securities is required to be delivered under
the Act, any event occurs as a result of which the Final Prospectus as then
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or if it is necessary
at any time to amend the Registration Statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act, to (1) notify the
Underwriter promptly, in writing, of such event, (2) prepare and file with the
Commission, subject to the second sentence of Section 3(d) hereof, an amendment
or supplement which will correct such statement or omission or effect such
compliance and (3) supply any supplemented Final Prospectus to the Underwriter
in such quantities as the Underwriter may request.
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(d) Commission Filings. (i) To timely file with the Commission during
any period when a prospectus relating to the Securities is required to be
delivered under the Act, all documents (and any amendments to previously filed
documents) required to be filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act. Prior to the termination of the offering of the
Securities, the Company will not file any amendment to the Registration
Statement or supplement to the Basic Prospectus unless the Company has furnished
you a copy for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the foregoing
sentence, the Company will cause the Final Prospectus, properly completed, and
any supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) under the Act in the form and in the manner,
and within the time period, prescribed by the Act and will provide evidence
satisfactory to the Underwriter of such timely filing.
(e) Notice to Underwriter of Certain Events. To advise the Underwriter
immediately (i) when the Final Prospectus, and any supplement thereto, shall
have been filed with the Commission pursuant to Rule 424(b) under the Act, (ii)
when, prior to termination of the offering of the Securities, any amendment to
the Registration Statement shall have been filed or become effective, (iii) of
any request or proposed request by the Commission, whether written or oral, for
an amendment or supplement to the Registration Statement, to any Preliminary
Final Prospectus, to the Final Prospectus, to any document incorporated by
reference in any of the foregoing or for any additional information and the
Company will afford the Underwriter a reasonable opportunity to comment on any
such proposed amendment or supplement, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any
part thereof or any order directed to any Preliminary Final Prospectus, to the
Final Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any of the
foregoing, (v) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any jurisdiction
or the initiation or threat of any proceeding for that purpose, (vi) of any
downgrading in the rating of the Securities or any other debt securities of the
Company, or any proposal to downgrade the rating of the Securities or any other
debt securities of the Company, by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or any
public announcement that any such organization has under surveillance or review
its rating of any debt securities of the Company (other than an announcement
with positive implications of a possible upgrading, and no implication of a
possible downgrading of such rating) as soon as the Company learns of any such
downgrading, proposal to downgrade or public announcement and (vii) of the
happening of any event which makes untrue any statement of a material fact made
in the Registration Statement, any Preliminary Final Prospectus or the Final
Prospectus or which requires the making of a change in the Registration
Statement, any Preliminary Final Prospectus or the Final Prospectus in order to
make any material statement therein not misleading.
(f) Stop Orders. If, during any period when a prospectus relating to
the Securities is required to be delivered under the Act, the Commission shall
issue a stop order suspending the effectiveness of the Registration Statement,
to make every reasonable effort to obtain the lifting of that order at the
earliest possible time.
(g) Earnings Statements. To make generally available to its security
holders as soon as practicable, but in any event not later than eighteen months
after the effective date of the
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Registration Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Company and its subsidiaries complying with Section 11(a) of
the Act (including, at the option of the Company, Rule 158 under the Act).
(h) Copies of Reports, Releases and Financial Statements. So long as
any of the Securities are outstanding, to furnish to the Underwriter, not later
than the time the Company makes the same available to others, copies of all
public reports or releases and all reports and financial statements furnished by
the Company to any securities exchange on which the Securities are listed
pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act.
(i) Blue Sky Qualifications. To endeavor, in cooperation with the
Underwriter, to qualify the Securities for offering and sale under the
securities laws of such jurisdictions as the Underwriter may designate, and to
maintain such qualifications in effect for as long as may be required for the
distribution of the Securities; and to file such statements and reports as may
be required by the laws of each jurisdiction in which the Securities have been
qualified as above provided.
(j) Holdback. Without the prior written consent of the Underwriter, not
to offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any affiliate
of any of the Company or any person in privity with the Company or any affiliate
of the Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, any
debt securities issued or guaranteed by the Company (other than the Securities)
or publicly announce an intention to effect any such transaction for 90 days
from the date of this Agreement.
(k) Stabilization. Not to take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company in order to facilitate
the sale or resale of the Securities.
SECTION 4. PAYMENT OF EXPENSES
The Company will pay:
(i) the costs incident to the authorization, issuance,
sale, authentication, transfer and delivery of the Securities and any
taxes payable in that connection;
(ii) the costs incident to the preparation, printing
(or reproducing) and filing of the Registration Statement and any
amendments and exhibits thereto, the Basic Prospectus, any Preliminary
Final Prospectus, the Final Prospectus and any amendment or supplement
to any Preliminary Final Prospectus or to the Final Prospectus and to
the preparation of this Agreement and the Indenture;
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(iii) the costs of mailing and delivering such copies of
the Registration Statement as originally filed and each amendment
thereto and any post-effective amendments thereof (including, in each
case, exhibits), the Basic Prospectus, any Preliminary Final
Prospectus, the Final Prospectus and any amendment or supplement to any
Preliminary Final Prospectus or to the Final Prospectus as may, in each
case, be requested for use in connection with the offering and sale of
the Securities;
(iv) the costs of printing (or reproducing) and
distributing this Agreement and all other agreements or documents
printed (or reproduced) and delivered in connection with the offering
of the Securities;
(v) the fees and expenses of qualifying the Securities
under the securities laws of the several jurisdictions as provided in
Section 3(i) of this Agreement and of preparing, printing and
distributing a Blue Sky Memorandum and a Legal Investment Survey
(including related reasonable fees and expenses of counsel to the
Underwriter);
(vi) any fees charged by rating agencies for rating
the Securities;
(vii) the cost of preparing the Securities;
(viii) the cost and charges of any transfer agent,
registrar or paying agent;
(ix) the fees and expenses of the Trustee and the
fees and disbursements of counsel for the Trustee;
(x) the fees and disbursements of counsel and
accountants to the Company;
(xi) the costs of any filings required to be made
with the National Association of Securities Dealers, Inc. (including
filing fees);
(xii) the expenses incurred by or on behalf of any of
the Company's representatives in connection with presentations to
prospective purchasers of the Securities;
(xiii) the fees and disbursements of counsel to the
Underwriter; and
(xiv) all other costs and expenses incident to the
performance of the obligations of the Company hereunder. In addition,
if the sale of the Securities provided for in this Agreement is not
consummated because any condition to the obligations of the Underwriter
set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9 hereof or because of any refusal,
inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof applicable to it
other than by reason of a default by the Underwriter, the Company
agrees to reimburse the Underwriter on demand for all out-of-pocket
expenses that shall have been incurred by the Underwriter in connection
with the proposed purchase and sale of the Securities.
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SECTION 5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITER
The obligation of the Underwriter to purchase the Securities is subject
to each of the following terms and conditions:
(a) Registration Statement and Prospectuses. The Final Prospectus, as
amended or supplemented, shall have been filed with the Commission in the manner
and within the time period required by Rule 424(b) under the Act; no stop order
suspending the effectiveness of the Registration Statement or any part thereof
nor any order directed to any document incorporated by reference in any
Preliminary Final Prospectus or the Final Prospectus shall have been issued and
no stop order proceeding shall have been initiated or threatened by the
Commission and no challenge shall have been made to the accuracy or adequacy of
any document incorporated by reference in any Preliminary Final Prospectus or
the Final Prospectus; any request of the Commission, whether written or oral,
for inclusion of additional information in the Registration Statement, any
Preliminary Final Prospectus or the Final Prospectus or otherwise shall have
been complied with; and the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement, any Preliminary Final
Prospectus or the Final Prospectus (or any document incorporated by reference
therein) without the consent of the Underwriter.
(b) No Suspension of Sale of the Securities. No order suspending the
sale of the Securities in any jurisdiction designated by the Underwriter
pursuant to Section 3(i) hereof shall have been issued, and no proceeding for
that purpose shall have been initiated or threatened.
(c) No Material Omissions or Untrue Statements. The Underwriter shall
not have discovered and disclosed to the Company that the Registration
Statement, any Preliminary Final Prospectus or the Final Prospectus contains an
untrue statement of a fact which, in the opinion of counsel for the Underwriter,
is material or omits to state a fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make the
statements therein not misleading.
(d) Representations and Warranties. The representations and warranties
of the Company contained in this Agreement and in the certificates delivered
pursuant to the terms of this Agreement shall be true and correct when made and
on and as of the Closing Date as if made on the Closing Date. The Company shall
have performed all covenants and agreements and satisfied all conditions
contained in this Agreement required to be performed or satisfied by it on or
before such Closing Date.
(e) Legal Matters Satisfactory to Counsel. All corporate proceedings
and other legal matters incident to the authorization, form and validity of this
Agreement, the Securities, the Indenture, the Registration Statement, any
Preliminary Final Prospectus, the Final Prospectus (other than financial
statements and other financial data) and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be satisfactory in
all respects to counsel for the Underwriter and the Company shall have furnished
to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
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(f) Opinion of Company Counsel. At the Closing Date, the Underwriter
shall have received the opinion, addressed to the Underwriter and dated the
Closing Date, of ▇▇▇ ▇▇▇, General Counsel of IKON, in form and substance
satisfactory to the Underwriter and its counsel, to the effect that:
(i) The Company and each of the Subsidiaries has been
duly incorporated or constituted (as applicable) and is validly
existing and in good standing under the laws of its jurisdiction of
incorporation or formation (as applicable), is duly qualified to do
business and in good standing as a foreign corporation or business
entity (as applicable) in all jurisdictions in which its ownership of
properties or the conduct of its businesses requires such qualification
(except where the failure to so qualify would not have a material
adverse effect on the Company and the Subsidiaries taken as a whole),
and has all power and authority necessary to own or hold its properties
and conduct the businesses in which it is engaged, as described in the
Final Prospectus;
(ii) Such counsel has no reason to believe that the
Registration Statement, as of the Effective Date, contained any 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 not misleading, or the Final Prospectus, as of its issue date
and as of the Closing Date, contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, it being understood that such counsel need express no
opinion as to the financial statements or other financial information
contained or incorporated therein or omitted therefrom, or the Form T-1
that is an exhibit to the Registration Statement;
(iii) Such counsel does not know, after reasonable
investigation, of any litigation or any governmental proceeding pending
or threatened against the Company or any Subsidiary which would affect
the subject matter of this Agreement or is required to be disclosed in
the Registration Statement and the Final Prospectus which is not
disclosed and correctly summarized therein;
(iv) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated herein except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction in connection with the sale of the
Securities as contemplated by this Agreement;
(v) Such counsel does not know, after reasonable
investigation, of any contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act, or
which are required to be filed pursuant to the Exchange Act as exhibits
to any document incorporated by reference in the Final Prospectus,
which have not been filed as exhibits to the Registration Statement or
to such document or incorporated therein by reference as permitted by
the Act or the Exchange Act;
(vi) To the best of such counsel's knowledge, each of
the Company and the Subsidiaries is not in violation of its corporate
charter or by-laws (or equivalent documents), or in default (except
where such default would not have a material adverse effect upon the
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Company and the Subsidiaries taken as a whole) under any agreement,
indenture or instrument;
(vii) The execution, delivery and performance of this
Agreement, the 1996 Support Agreement and compliance by the Company
with the provisions of the Securities and the Indenture did not and
will not conflict with, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument known to such counsel, or result in a violation
of the corporate charter or by-laws (or equivalent documents) of the
Company or any Subsidiary (as in effect on the date of such opinion) or
any order, rule or regulation (also as in effect on the date of such
opinion) of any court or governmental agency having jurisdiction over
any of the Company, the Subsidiaries or their respective properties;
(viii) The Indenture has been duly authorized by the
Company, duly executed and delivered by the Company and the Trustee and
duly qualified under the Trust Indenture Act and is a valid and legally
binding obligation of the Company enforceable in accordance with its
terms;
(ix) The Securities are in a form contemplated by the
Indenture and have been duly authorized by all necessary corporate
action and, when the Securities have been duly executed and
authenticated as specified in the Indenture and delivered against
payment therefor in accordance with this Agreement, the Securities will
be legal, valid and binding obligations of the Company enforceable in
accordance with their terms, and entitled to the benefits of the
Indenture;
(x) The Securities and the Indenture conform to the
statements concerning each of them in the Registration Statement and
the Final Prospectus;
(xi) The 1996 Support Agreement has been duly
authorized, executed and delivered by each of the Company and IKON and
constitutes the valid and legally binding obligation of the Company and
IKON, enforceable in accordance with its terms; and (ii) such agreement
conforms to the description thereof contained in the Registration
Statement and the Final Prospectus;
(xii) The Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose is pending or threatened by
the Commission. Any required filings of the Basic Prospectus, any
Preliminary Final Prospectus and the Final Prospectus, and any
supplements thereto, pursuant to Rule 424(b) under the Act have been
made in the form and in the manner and within the time period required
by Rule 424(b) under the Act;
(xiii) To the knowledge of such counsel, after reasonable
investigation, no order directed to any document incorporated by
reference in the Registration Statement and the Final Prospectus has
been issued and no challenge has been made to the accuracy or adequacy
of any such document; and such counsel has no reason to believe that
any of such
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documents, when they became effective or were so filed, as the case may
be, contained, in the case of a registration statement which became
effective under the Act, 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 not misleading, and, in the
case of other documents which were filed under the Act or the Exchange
Act with the Commission, an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such documents were so filed, not misleading;
(xiv) The Registration Statement and the Final Prospectus
(except that no opinion need be expressed as to the financial
statements and other financial data contained therein or the Form T-1
that is an exhibit to the Registration Statement) comply as to form in
all material respects with the requirements of the Act and the Trust
Indenture Act and the documents incorporated by reference in the Final
Prospectus (except that no opinion need be expressed as to the
financial statements and other financial data contained therein) comply
as to form in all material respects with the applicable requirements of
the Exchange Act;
(xv) The statements made in the Final Prospectus under
the captions "Description of Debt Securities" and "Description of
Notes," insofar as they purport to summarize the provisions of
documents or agreements specifically referred to therein, fairly
present the information called for with respect thereto by Form S-3
under the Act;
(xvi) The Company has the corporate power and authority
necessary to execute and deliver this Agreement and to perform its
obligations (including the sale and delivery of the Securities under
this Agreement) hereunder; and this Agreement has been duly authorized,
executed and delivered by the Company; and
(xvii) The Company is not required to register under the
provisions of the Investment Company Act, and no action need be taken
with respect to or under the Investment Company Act by reason of the
issuance of the Securities by the Company.
The opinions set forth in paragraphs (viii), (ix) and (xi) above are
subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (regardless of whether
such enforceability is considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
(g) Officers' Certificate. The Company shall have furnished to the
Underwriter on the Closing Date a certificate, dated the Closing Date, of its
President or a Vice President and its Treasurer or an Assistant Treasurer
stating that:
(i) The representations and warranties of the Company
contained herein were true and correct when made and are true and
correct on and as of the Closing Date as if made on the Closing Date;
the Company has performed all covenants and complied with all its
agreements contained herein and satisfied all the conditions contained
herein required to be performed or satisfied by it on or before the
Closing Date; and
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(ii) They have carefully examined the Registration
Statement and the Final Prospectus and, in their opinion, (A) the
Registration Statement, as of the Effective Date and the Execution
Time, did not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (B) on the date of
any filing pursuant to Rule 424(b) under the Act and on the Closing
Date, the Final Prospectus did and does not contain any untrue
statement of a material fact or omit to state a 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.
(h) Accountants' Letter. (i) The Company shall have requested and
caused PricewaterhouseCoopers LLP to have furnished to the Underwriter, at the
Execution Time and at the Closing Date, letters addressed to the Underwriter and
dated, respectively, as of the Execution Time and as of the Closing Date, of the
type described in the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 72, in form and substance reasonably
satisfactory to the Underwriter, confirming that they are independent certified
public accountants of IKON and the Company within the meaning of the Act and the
Exchange Act, stating in effect that:
(A) In their opinion, the financial statements and
financial statement schedules incorporated by reference in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act;
(B) They have performed a review of any unaudited
financial statements incorporated by reference in the Registration
Statement and the Final Prospectus in accordance with standards
established by the American Institute of Certified Public Accountants'
Statement on Auditing Standards No. 71;
(C) On the basis of the review referred to in (B) above
and a reading of the latest available interim financial statements of
the Company and its subsidiaries, inquiries of officials of the Company
who have responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused them
to believe that:
(1) the unaudited financial statements incorporated
by reference in the Registration Statement and in the Final
Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and
with the related rules and regulations adopted by the
Commission with respect to financial statements included or
incorporated by reference in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
incorporated by reference in the Registration Statement and
the Final Prospectus;
(2) the unaudited capsule information, if any,
included or incorporated by reference in the Registration
Statement and the Final Prospectus does not agree with the
amounts set forth in the unaudited financial statements from
which it was
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derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included or incorporated by reference in the Registration
Statement and the Final Prospectus;
(3) at the date of the latest available balance sheet
read by such accountants, or at a subsequent specified date
not more than one day prior to the Closing Date, there was any
change in the capital stock, short-term indebtedness or
long-term debt of the Company or, at the date of the latest
available balance sheet read by such accountants, there was
any decrease in net current assets or stockholder's equity as
compared with amounts shown on the latest balance sheet
incorporated by reference in the Registration Statement and
the Final Prospectus; or
(4) for the period from the date of the latest income
statement incorporated by reference in the Registration
Statement and the Final Prospectus to the closing date of the
latest available income statement read by such accountants,
there were any decreases, as compared with the corresponding
period of the previous year in revenues, income before income
taxes and cumulative effect of accounting change, or net
income, or in the ratio of earnings to fixed charges;
except in all cases set forth in clauses (3) and (4) above for changes,
increases or decreases which the Registration Statement and the Final
Prospectus disclose have occurred; and
(D) They have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information included or incorporated by reference in the Registration
Statement and the Final Prospectus (in each case to the extent that
such dollar amounts, percentages and other financial information are
derived from the general accounting records of IKON or the Company,
subject to the internal controls of IKON's or the Company's accounting
system, as applicable, or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(ii) The Company shall have requested and caused Ernst & Young
LLP to have furnished to the Underwriter, at the Execution Time and at
the Closing Date, letters addressed to the Underwriter and dated,
respectively, as of the Execution Time and as of the Closing Date, of
the type described in the American Institute of Certified Public
Accountants' Statement on Auditing Standards No. 72, in form and
substance reasonably satisfactory to the Underwriter, (1) confirming
that they were independent certified public accountants of IKON and the
Company within the meaning of the Act and the Exchange Act until
September 30, 1999, and (2) stating in effect that, in their opinion,
the financial statements and financial statement schedules incorporated
by reference in the Registration Statement and the Final Prospectus and
reported on by them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act.
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(i) The Underwriter shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel to the Underwriter, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Securities, the Indenture, the
Registration Statement, the Final Prospectus (together with any supplement
thereto) and other related matters as the Underwriter may reasonably require,
and the Company shall have furnished to such counsel such documents as they may
request for the purpose of enabling them to pass upon such matters.
(j) Additional Conditions. Subsequent to the Execution Time or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have occurred: (i) any
change in the capital stock or long-term debt of the Company or any of the
Subsidiaries or any change, or any development involving a prospective change,
in or affecting the general affairs, management, shareholder's equity, business,
properties, condition (financial or otherwise), results of operations or
prospects of the Company and the Subsidiaries, taken as a whole, which in the
opinion of the Underwriter materially impairs the investment quality of the
Securities; (ii) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
over-the-counter market or the establishment of minimum prices on such exchanges
or such market by the Commission, by such exchange or by any other regulatory
body or governmental authority having jurisdiction; (iii) a general moratorium
on commercial banking activities declared by Federal or New York State
authorities; (iv) any downgrading in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (v) any outbreak or escalation of major
hostilities in which the United States of America (the "United States") is
-------------
involved, any declaration of war by Congress or any other substantial national
calamity or emergency; or (vi) any material adverse change in the existing
financial, political or economic conditions in the United States, including any
effect of international conditions on the financial markets in the United
States, that in the sole judgment of the Underwriter, makes it impracticable or
inadvisable to proceed with the offering or delivery of the Securities on the
terms and in the manner contemplated herein.
(k) Other Information and Documentation. Prior to the Closing Date, the
Company shall have furnished to the Underwriter, such further information,
certificates and documents as the Underwriter or counsel to the Underwriter may
reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in the form and substance satisfactory to
counsel for the Underwriter.
SECTION 6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification of Underwriter. The Company shall indemnify and
hold harmless the Underwriter, the directors, officers, employees and agents of
the Underwriter and each person, if any, who controls the Underwriter within the
meaning of the Act or the Exchange Act from and against any loss, claim, damage
or liability, joint or several, and any action in respect thereof, to
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which they or any of them may become subject, under the Act, the Exchange Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action in respect thereof
arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or in any
amendment thereof or supplement thereto, or arises out of, or is based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse each such indemnified party for any legal and other expenses
reasonably incurred by each such indemnified party in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company 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,
any untrue statement or alleged untrue statement or omission or alleged omission
made in the Form T-1 or made in the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or in any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein; provided further, that as to any Preliminary
Final Prospectus, this indemnity agreement shall not inure to the benefit of the
Underwriter on account of any loss, claim, damage, liability or action arising
from the sale of the Securities to any person by the Underwriter if the
Underwriter failed to send or give a copy of the Final Prospectus to that person
within the time required by the Act, and the untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact in such Preliminary Final Prospectus was corrected in the Final Prospectus,
unless such failure resulted from non-compliance by the Company with Section
3(b). The foregoing indemnity agreement is in addition to any liability which
the Company may otherwise have to the Underwriter, the directors, officers,
employees and agents of the Underwriter and any person who controls the
Underwriter within the meaning of either the Act or the Exchange Act.
(b) Indemnification of the Company. The Underwriter agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and any person who controls the Company within
the meaning of the Act or the Exchange Act and any person nominated to become a
director of the Company who signed a consent filed with the Registration
Statement from and against any loss, claim, damage or liability, joint or
several, and any action in respect thereof, to which they or any of them may
become subject, under the Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such loss,
claim, damage, liability or action in respect thereof arises out of, or is based
upon, any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Basic Prospectus, any Preliminary
Final Prospectus, the Final Prospectus, or in any amendment thereof or
supplement thereto, or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement, the Basic
Prospectus, any Preliminary Final Prospectus, the Final Prospectus, or in any
amendment thereof or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of the Underwriter
specifically for inclusion therein, and shall reimburse the Company or any such
director, officer or controlling person for any legal and other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend against any such loss, claim, damage,
liability
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or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which the Underwriter may otherwise have to the
Company, the directors, the officers who signed the Registration Statement, each
person, if any, who controls the Company within the meaning of either the Act or
the Exchange Act, and any person nominated to become a director of the Company
who signed a consent filed with the Registration Statement.
(c) Notice. Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of action; provided, however, that the
failure to notify the indemnifying party shall not relieve the indemnifying
party from any liability which the indemnifying party may have to an indemnified
party otherwise than under this Section 6. If any such claim or action shall be
brought against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein, and,
to the extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action,
the indemnifying party shall not be liable to the indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that the Underwriter shall have the
right to employ counsel to represent the Underwriter in respect of any liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriter against the Company under this Section 6 if, in the reasonable
judgment of the Underwriter, it is advisable for the Underwriter to be
represented by separate counsel, and in that event the fees and expenses of such
counsel shall be paid by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, 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. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened 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 proceeding.
(d) Contribution. If the indemnification provided for in this Section 6
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 6(a) or 6(b) hereof in respect of any loss,
claim, damage or liability, or any action 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 loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriter on the
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other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the
Underwriter on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriter on the other with
respect to the offering of Securities shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bears to the total underwriting discounts and
commissions (as set forth on the cover page of the Final Prospectus) received by
the Underwriter with respect to such offering. The relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Underwriter, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriter
agree that it would not be just and equitable if contributions pursuant to this
Section 6(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage or liability, or action in respect thereof,
referred to above in this Section 6(d) shall be deemed to include, for purposes
of this Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6(d), the Underwriter
shall not be required to contribute any amount in excess of the total
compensation received by the Underwriter pursuant to this Agreement. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
SECTION 8. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS TO SURVIVE
DELIVERY
The respective agreements, representations, warranties, indemnities and
other statements of the Company, its officers and of the Underwriter set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of the Underwriter, the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 6 hereof, and will survive delivery of and
payment for the Securities.
SECTION 9. TERMINATION
If any of the conditions specified in Section 5 of this Agreement shall
not have been satisfied when and as provided in this Agreement, or if any of the
opinions and certificates mentioned in such Section 5 or elsewhere in this
Agreement shall not be reasonably satisfactory in form and substance to the
Underwriter and counsel for the Underwriter, this Agreement and all obligations
of the Underwriter hereunder may be canceled by the Underwriter at, or at any
time prior to, delivery of and payment for the Securities. Notice of such
cancellation shall be given to the Company in the manner provided in Section 10
hereof. The provisions of Sections 4 and 7 hereof shall survive any termination
of this Agreement.
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SECTION 10. NOTICES
All communications hereunder shall be in writing and effective only on
receipt. If sent to the Underwriter, any such communications will be mailed,
delivered or telefaxed to: ▇▇▇▇▇▇ Brothers Inc. Debt Capital Markets, Consumer
Products Group (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to: Debt Capital Markets,
Consumer Products Group, ▇▇▇▇▇▇ Brothers, Inc., at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-1200. Communications sent to the Company will be mailed,
delivered or telefaxed to IOS Capital, Inc. Treasury Department (fax no.: (610)
▇▇▇-▇▇▇▇), c/o IKON Office Solutions, Inc., and confirmed to IOS Capital, Inc.,
c/o IKON Office Solutions, Inc. P.O. Box 834, Valley Forge, PA 19482, Attention:
Treasury Department.
SECTION 11. BINDING EFFECT; BENEFITS
This Agreement shall be binding upon the Underwriter, the Company, and
their respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the directors,
officers, employees and agents of the Underwriter and each person who controls
the Underwriter within the meaning of either the Act or the Exchange Act, and
(b) the indemnity agreement of the Underwriter contained in Section 6 hereof
shall be deemed to be for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement, any person controlling
the Company and any person nominated to become a director of the Company who has
signed a consent filed with the Registration Statement. Nothing in this
Agreement is intended or shall be construed to give any persons other than the
persons referred to in this Section 11, any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained herein.
SECTION 12. GOVERNING LAW; COUNTERPARTS
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF
LAWS. THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS AND THE EXECUTED
COUNTERPARTS SHALL TOGETHER CONSTITUTE A SINGLE INSTRUMENT.
SECTION 13. PARAGRAPH HEADINGS
The paragraph headings used in this Agreement are for convenience of
reference only, and are not to affect the construction hereof or be taken into
consideration in the interpretation hereof.
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If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
IOS CAPITAL, INC.
By:_________________________
Name:
Title:
CONFIRMED AND ACCEPTED as of the date first above written:
By: ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
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If the foregoing correctly sets forth our agreement, please indicate
your acceptance hereof in the space provided for that purpose below.
Very truly yours,
IOS CAPITAL, INC.
By:/s/ ▇. ▇. ▇▇▇▇▇
----------------------
Name: ▇. ▇. ▇▇▇▇▇
Title: Treasurer
CONFIRMED AND ACCEPTED as of the date first above written:
By: ▇▇▇▇▇▇ BROTHERS INC.
By:__________________________
Name:
Title:
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