EXHIBIT
10.2


 


INDEMNIFICATION
AGREEMENT


 


THIS INDEMNIFICATION AGREEMENT, dated as of December 13,
2004 (this “Agreement”), is among WACHOVIA CORPORATION, a North Carolina
corporation (“Wachovia”), LEHMAN BROTHERS HOLDINGS INC., a Delaware
corporation (“Lehman Brothers”, and together with Wachovia, the “Guarantors”),
OMX TIMBER FINANCE INVESTMENTS I, LLC, a Delaware limited liability company
(the “Class A-1 Issuer”), OMX TIMBER FINANCE INVESTMENTS II, LLC, a
Delaware limited liability company (the “Class A-2 Issuer”, and together
with the Class A-1 Issuer, the “Issuers”), OFFICEMAX INCORPORATED, a
Delaware corporation (“OfficeMax”), WACHOVIA CAPITAL MARKETS, LLC, a
North Carolina limited liability company (“Wachovia Capital Markets”)
and LEHMAN BROTHERS INC. (“Lehman Brothers Inc.”, and together with
Wachovia Capital Markets, the “Initial Purchasers”).


 


The Class A-1 Issuer has duly
authorized the sale of the Class A-1 Notes due 2019 (the “Class A-1 Notes”),
and the Class A-2 Issuer has duly authorized and the Class A-2 Notes due
2019 (the “Class A-2 Notes” and together with the Class A-1 Notes, the “Offered
Notes”).  Each of the Issuers is a
wholly-owned indirect subsidiary of OfficeMax Incorporated, a Delaware
corporation (“OfficeMax”).


 


The Class A-1 Notes will
be issued in an aggregate principal amount of approximately $735,000,000, and
the Class A-2 Notes will be issued in an aggregate initial principal amount of
$735,000,000.  The Class A-1 Notes will
be secured by the Indenture Collateral of the Class A-1 Issuer, and the Class
A-2 Notes will be secured by the Indenture Collateral of the Class A-2
Issuer.  The Class A-1 Notes will be
issued pursuant to an Indenture, dated as of the date of this Agreement (the “Class
A-1 Indenture”), between the Class A-1 Issuer and Wells Fargo Bank
Northwest, N.A., as the Indenture Trustee (the “Indenture Trustee”).  The Class A-2 Notes will be issued pursuant
to an Indenture, dated as of the date of this Agreement (the “Class A-2
Indenture”, and together with the Class A-1 Indenture, the “Indentures”),
between the Class A-2 Issuer and the Indenture Trustee.  Capitalized terms not defined herein have the
meanings assigned to them in the Indentures.


 


The Class A-1 Notes will
be sold by the Class A-1 Issuer to Wachovia Capital Markets and the Class A-2
Notes will be sold by the Class A-2 Issuer to Lehman Brothers Inc. pursuant to
the Purchase Agreement dated as of the date of this Agreement (the “Purchase
Agreement”) between the Issuers, OfficeMax and the Initial Purchasers.  The Initial Purchasers will offer the Offered
Notes in transactions exempt from the registration requirements of the
Securities Act of 1933, as amended (the “1933 Act”), pursuant to a
preliminary confidential offering memorandum dated December 8, 2004 (including
any exhibits thereto and all information incorporated therein by reference, the
“Preliminary Memorandum”) and a final confidential offering memorandum
dated the date hereof (including any exhibits, amendments or supplements
thereto and all information incorporated therein by reference, the “Final  Memorandum”, and each of the
Preliminary Memorandum and the Final Memorandum, a “Memorandum”)
including a description of the terms of the Offered Notes, the terms of the
offering, and a description of each Issuer, Wachovia and Lehman Brothers


 





















 


The agreements of Wachovia and Lehman Brothers made
herein are made to induce, and with the knowledge that they will be relied upon
by, the Initial Purchasers, the Issuers and OfficeMax in connection with the
issuance and the offering of the Offered Notes.


 


The parties hereto agree as follows:


 


Section
1.                                            Indemnification.


 


(a)                                  Wachovia
represents and warrants that the Memorandum does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty is made only to the
extent that information in the Memorandum is or is based upon Wachovia Information
(as defined below) and only to the extent such information is contained in the
sections of the Memorandum identified in clause (A) of this paragraph below.  In addition, Wachovia shall indemnify and hold
harmless each of the Initial Purchasers, the Issuers and OfficeMax, their
respective directors and officers, and each other person who controls any such
entity within the meaning of either Section 15 of the 1933 Act or Section 20 of
the Securities Exchange Act of 1934, as amended (the “1934 Act”),
against any and all expenses, losses, claims, damages and other liabilities,
including without limitation the costs of investigation, legal defense and any
amounts paid in settlement of any claim or litigation (collectively, “Liabilities”),
joint or several to which it or any of them may become subject under the 1933
Act, the 1934 Act, or other federal or state statutory law or regulation, at
common law or otherwise, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact, or any omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, but only insofar as such Liabilities arise out of or are based on
information that relates solely to Wachovia (the “Wachovia Information”),
and only to the extent such Wachovia Information is contained in (A) the
Preliminary Memorandum or the Memorandum, as the case may be, under the heading
“Available Information About Wachovia”.


 


(b)                                 Lehman
Brothers represents and warrants that the Memorandum does not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading; provided,
however, that this representation and warranty is made only to the
extent that information in the Memorandum is or is based upon Lehman Brothers
Information (as defined below) and only to the extent such information is
contained in the sections of the Memorandum identified in clause (A) of this
paragraph below.  In addition, Lehman
Brothers shall indemnify and hold harmless each of the Initial Purchasers, the
Issuers and OfficeMax, their respective directors and officers, and each other
person who controls any such entity within the meaning of either Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all Liabilities,
joint or several to which it or any of them may become subject under the 1933
Act, the 1934 Act, or other federal or state statutory law or regulation, at
common law or otherwise, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact, or any omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, but only insofar as such Liabilities arise


 


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out of or are based on
information that relates solely to Lehman Brothers (the “Lehman Brothers
Information”), and only to the extent such Lehman Brothers Information is
contained in (A) the Preliminary Memorandum or the Memorandum, as the case
may be, under the heading “Available Information About Lehman Brothers”.


 


(c)                                  Each
Initial Purchaser, severally and not jointly, shall indemnify and hold harmless
Wachovia, Lehman Brothers, their respective directors and officers, and each
other person who controls any such entity within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
Liabilities, joint or several to which it or any of them may become subject
under the 1933 Act, the 1934 Act, or other federal or state statutory law or
regulation, at common law or otherwise, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact, or any omission or
alleged omission to state therein a material fact necessary to make the
statements therein, in the light of the circumstances in which they were made,
not misleading, but only insofar as such Liabilities arise out of or are based
on the information relating to such Initial Purchaser, provided by such Initial
Purchaser expressly for inclusion in the Preliminary Memorandum or the Final
Memorandum, as the case may be, in reliance upon and in conformity with written
information furnished to the Issuers by such Initial Purchaser expressly for
use in the Preliminary Memorandum or the Final Memorandum (or any amendment or
supplement thereto).  Each Issuer and
Office Max acknowledges that the statements set forth in the Final Memorandum
under the captions “Market Stabilization” and “Plan of Distribution” constitute
the only written information furnished to the Issuers and OfficeMax by the
Initial Purchasers or on behalf of the Initial Purchasers specifically for
inclusion in the Final Memorandum (or any amendment or supplement thereto).


 


(d)                                 Each
Issuer and OfficeMax, severally and not jointly, shall indemnify and hold
harmless Wachovia, Lehman Brothers, their respective directors and officers,
and each other person who controls any such entity within the meaning of either
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
Liabilities, joint or several to which it or any of them may become subject
under the 1933 Act, the 1934 Act, or other federal or state statutory law or
regulation, at common law or otherwise, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Preliminary Memorandum or Final Memorandum, or any omission or alleged omission
to state therein a material fact necessary to make the statements therein, in
the light of the circumstances in which they were made, not misleading, provided, however,
that the indemnity provided by this Section 1(d) shall not apply to any loss,
liability, claim, damage or expense to the extent any such untrue statement or
alleged untrue statement or omission or alleged omission arises out of or is
based upon information incorporated by reference in such Memorandum under the
headings “Market Stabilization”, “Plan of Distribution”, “Available Information
About Wachovia” and “Available Information About Lehman Brothers”; provided, further,
that, the indemnity provided by this
Section 1(d) shall not apply 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
Preliminary Memorandum or the Final Memorandum in reliance upon and in
conformity with written information furnished to the Issuers and/or OfficeMax
by the Initial Purchasers specifically for inclusion therein.


 


(e)                                  Promptly
after receipt by an indemnified party under this Section 1 of notice of
any claim or the commencement of any action, the indemnified party shall, if a
claim


 


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in respect thereof is to
be made against the indemnifying party under this Section 1, notify the
indemnifying party in writing of the claim or commencement of that action, provided, however,
that the failure to notify the indemnifying party shall not relieve the
indemnifying party from any liability that it may have to an indemnified party
under this Section 1, except to the extent that the indemnifying party
has been materially prejudiced by such failure and, provided,
further, that the failure to notify
the indemnifying party shall not relieve the indemnifying party from any
liability that it may have to an indemnified party otherwise than under this Section
1.  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 reasonably
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 1 for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided that an indemnified party shall
have the right to employ, at the expense of the indemnifying party, counsel to
represent such indemnified party and the controlling persons who may be subject
to liability arising out of any claim or action in respect of which indemnity
may be sought by such indemnified party against the applicable indemnifying
party under this Section 1, if (i) in the reasonable judgment of an
Initial Purchaser, there may be legal defenses available to such indemnified
party, and those controlling persons, different from or in addition to those
available to the applicable indemnifying party, or there is a conflict of
interest between an indemnified party and the controlling persons, on one hand,
and an indemnifying party, on the other, or (ii) the applicable
indemnifying party shall fail to select counsel reasonably satisfactory to the
indemnified party or parties, and in such event the fees and expenses of such
separate counsel shall be paid by the applicable indemnifying party.  In no event shall the applicable indemnifying
party be liable for the fees and expenses of more than one separate firm of
attorneys for each of the indemnified parties and their controlling persons in
connection with any other action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances.  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 (i) does not
include a statement as to or admission of, fault, culpability or a failure to
act by or on behalf of any such indemnified party, and (ii) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.


 


(f)                                    If
the indemnification provided for in Section 1 shall for any reason be
unavailable to an indemnified party under subsections 1(a) and (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 Initial
Purchasers, the Issuers and Office Max and the Guarantors from the offering of
the Offered Notes 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 Initial


 


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Purchasers, the Issuers
and OfficeMax and the Guarantors with respect to the statements or omissions
that resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations.  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 Issuers, OfficeMax or the Initial Purchasers or the Guarantors,
the intent of the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission.  The Issuers, OfficeMax, the Initial
Purchasers and the Guarantors agree that it would not be just and equitable if
contributions pursuant to this subsection 1(f) were to be determined by
pro rata allocation or by any other method of allocation that 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 subsection 1(f) shall be deemed to
include, for purposes of this subsection 1(f), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.


 


(g)                                 The
indemnity agreements contained in this Section 1 shall survive the
delivery of the Offered Notes, and the provisions of this Section 1
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.


 


Section
2.                                            Successors.


 


This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 1 of
this Agreement and their respective successors and assigns, and, except as
specifically set forth herein, no other person will have any right or
obligation hereunder.


 


Section
3.                                            Applicable
Law.


 


THIS AGREEMENT WILL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK, BUT OTHERWISE WITHOUT REGARD TO CONFLICTS OF LAW
PRINCIPLES).


 


EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY REQUIREMENTS OF LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT.  EACH PARTY HERETO (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,


 


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AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14(b).


 


ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON–EXCLUSIVE JURISDICTION OF THOSE
COURTS.  EACH SUCH PARTY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.


 


Section
4.                                            Counterparts,
Etc.


 


This Agreement supersedes all prior or contemporaneous
agreements and understandings relating to the subject matter hereof.  Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated except by a writing signed by
the party against whom enforcement of such change, waiver, discharge or
termination is sought.  This Agreement
may be signed in any number of counterparts each of which shall be deemed an
original, which taken together shall constitute one and the same instrument.


 


[REST OF
PAGE INTENTIONALLY LEFT BLANK]


 


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IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date set forth above.


 


	
   

  	
  OMX TIMBER FINANCE INVESTMENTS
  I,

  LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ted
  Crumley

  	
   

  
	
   

  	
   

  	
  Ted Crumley, Regular
  Manager

  
	
   

  	
   

  
	
   

  	
  OMX TIMBER FINANCE INVESTMENTS
  II,

  LLC, a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ted
  Crumley

  	
   

  
	
   

  	
   

  	
  Ted Crumley, Regular
  Manager

  
	
   

  	
   

  
	
   

  	
  OFFICEMAX INCORPORATED

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Ted
  Crumley

  	
   

  
	
   

  	
  Name:

  	
    Ted Crumley

  	
   

  
	
   

  	
  Title:

  	
    Senior Vice
  President

  	
   

  
							



 





















 


	
   

  	
  WACHOVIA
  CAPITAL MARKETS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Kenneth
  A. Carpenter, Jr.

  	
   

  
	
   

  	
  Name:

  	
    Kenneth A.
  Carpenter, Jr.

  	
   

  
	
   

  	
  Title:

  	
    Director

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Erin
  Callan

  	
   

  
	
   

  	
  Name:

  	
    Erin Callan

  	
   

  
	
   

  	
  Title:

  	
    Managing
  Director

  	
   

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Kenneth
  A. Carpenter, Jr.

  	
   

  
	
   

  	
  Name:

  	
    Kenneth A.
  Carpenter, Jr.

  	
   

  
	
   

  	
  Title:

  	
    Director

  	
   

  
	
   

  	
   

  
	
   

  	
  LEHMAN
  BROTHERS HOLDINGS INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Erin
  Callan

  	
   

  
	
   

  	
  Name:

  	
    Erin Callan

  	
   

  
	
   

  	
  Title:

  	
    Managing
  Director