SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 16, 2000
New York 001-03157 13-0872805
--------------------------- -------------------------- --------------------
(State or Other Jurisdiction (Commission File Number) (IRS Employer
of Incorporation) Identification No.)
2 Manhattanville Road
Purchase, New York 10577
---------------------------------------- ------------------------
(Address of Principal Executive Offices) (Zip Code)
|
ITEM 2. Acquisition or Disposition of Assets
(a) On June 19, 2000, International Paper Company, a New York corporation (the "Registrant"), completed its previously announced exchange offer (the "Offer") for all outstanding shares of common stock, par value $0.50 per share (the "Shares"), of Champion International Corporation, a New York corporation ("Champion"), at a price per Share of .7073 shares of common stock, par value $1.00 per share ("IP Shares"), of the Registrant and $50.00 net to the seller in cash.
The Offer expired at 12:00 midnight, New York City time, on Friday, June 16, 2000. In the Offer, the Registrant's wholly owned subsidiary, Condor Acquisition Corporation, a New York corporation (the "Purchaser"), purchased approximately 91,849,848 Shares, which constituted approximately 94.5% of the outstanding Shares. The aggregate purchase price for the Shares pursuant to the Offer was $4,592,606,696.79 in cash and 64,962,164 IP Shares.
On June 20, 2000, the Purchaser merged (the "Merger") with and into Champion pursuant to the Agreement and Plan of Merger dated as of May 12, 2000 among Champion, the Registrant and the Purchaser (the "Merger Agreement"), with Champion surviving the Merger as a wholly owned subsidiary of the Registrant. Pursuant to the Merger Agreement, each outstanding Share not exchanged in the Offer (other than Shares owned by Champion as treasury stock, Shares owned by the Registrant or any subsidiary of the Registrant, or Shares held by Champion shareholders exercising appraisal rights under New York law) was converted into a right to receive .7073 IP Shares and $50.00 in cash. At the closing of the Merger, the Registrant also paid approximately $112,386,730 to Champion in respect of certain stock option and restricted stock plans.
A copy of the press release issued by the Registrant in respect of the closing of the Offer is filed herewith as Exhibit 99.2 and incorporated herein by reference in its entirety.
(b) Champion is an integrated forest products company. Champion is a major producer and distributor of coated and uncoated papers. The company's other products include market pulp, lumber and plywood, and selected paper for packaging. Champion has the responsibility for the sustainable management of approximately eleven million acres of forestlands supporting its manufacturing facilities.
ITEM 5. Other Events.
The Registrant obtained a portion of the funds for the acquisition of Champion through the sale of $800 million principal amount of Floating Rate Notes due July 8, 2002 (the "Floating Rate Notes"), $1.2 billion principal amount of 8% Notes due July 8, 2003 (the "8% Notes") and $1.0 billion principal amount of 81/8% Notes due July 8, 2005 (the "81/8% Notes", and together with the Floating Rate Notes and the 8% Notes, the "Notes") in a private placement. On June 14, 2000, the Registrant closed the sale of the Notes and received $2,983,932,000 in net proceeds therefrom.
The Notes were issued under the Indenture, dated as of April 12, 1999 (the "Indenture"), between the Registrant and The Bank of New York, as Trustee (the "Trustee"), the Floating Rate Notes Supplemental Indenture, dated as of June 14, 2000, between the Registrant and the Trustee (the "Floating Rate Notes Supplemental Indenture), the 8% Notes Due July 8, 2003 Supplemental Indenture, dated as of June 14, 2000, between the Registrant and the Trustee (the "8% Notes Supplemental Indenture") and the 81/8% Notes Due July 8, 2005 Supplemental Indenture, dated as of June 14, 2000, between the Registrant and the Trustee (the "81/8% Notes Supplemental Indenture"). The Notes have not been registered under the Securities Act of 1933, as amended, or applicable state securities laws, and may not be offered or sold in the United States absent registration under the Securities Act of 1933 and applicable state securities laws or available exemptions from registration requirements. The Registrant has, however, entered into a Registration Rights Agreement, dated as of June 14, 2000, between the Registrant and several initial purchasers (the "Registration Rights Agreement"), pursuant to which the Registrant has granted the initial purchasers certain registration rights for the Notes. Copies of the Indenture, the Floating Rate
Notes Supplemental Indenture, the 8% Notes Supplemental Indenture, the 81/8% Notes Supplemental Indenture and the Registration Rights Agreement are attached hereto as Exhibits 4.1, 4.2, 4.3, 4.4 and 99.1, respectively, and are incorporated herein by reference in their entirety.
The Registrant obtained an additional portion of the funds for the acquisition of Champion through term loans to a subsidiary of the Registrant in an aggregate principal amount of $1,300,000,000 under a Credit Agreement, dated as of June 14, 2000, among the Registrant, International Paper Financial Services, Inc., various lenders and Credit Suisse First Boston, New York Branch, as Administrative Agent (the "Credit Agreement"). A copy of the Credit Agreement is attached hereto as Exhibit 4.5, and is incorporated herein by reference in its entirety. The Registrant also issued commercial paper in the amount of approximately $150,000,000 under its existing commercial paper programs to fund a portion of the acquisition of Champion.
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) FINANCIAL STATEMENTS OF BUSINESSES ACQUIRED
Previously filed with the Registrant's Registration Statement on Form S-4, as amended on June 9, 2000.
(b) PRO FORMA FINANCIAL INFORMATION
Previously filed with the Registrant's Registration Statement on Form S-4, as amended on June 9, 2000.
(c) EXHIBITS
Exhibit 2 Agreement and Plan of Merger, dated as of May 12,
2000, among Champion, the Registrant and the Purchaser
(incorporated by reference to exhibit 2 to the
Registrant's Registration Statement on Form S-4, as
amended on June 9, 2000).
Exhibit 4.1 Indenture, dated as of April 12, 1999, between the
Registrant and The Bank of New York, as Trustee.
Exhibit 4.2 Floating Rate Notes Supplemental Indenture, dated
as of June 14, 2000, between the Registrant and the
Bank of New York, as Trustee.
Exhibit 4.3 8% Notes Due July 8, 2003 Supplemental Indenture,
dated as of June 14, 2000, between the Registrant and
The Bank of New York, as Trustee.
Exhibit 4.4 8 1/8% Notes Due July 8, 2005 Supplemental
Indenture, dated as of June 14, 2000, between the
Registrant and The Bank of New York, as Trustee.
Exhibit 4.5 Credit Agreement, dated as of June 14, 2000, among
the Registrant, International Paper Financial
Services, Inc., various lenders and Credit Suisse
First Boston, New York Branch, as Administrative
Agent, Lead Arranger and Book Manager.
Exhibit 99.1 Registration Rights Agreement, dated as of June
14, 2000, between the Registrant and the initial
purchasers.
Exhibit 99.2 Press Release dated June 19, 2000.
|
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
INTERNATIONAL PAPER COMPANY
Dated: June 29, 2000 By: /s/ Barbara L. Smithers
--------------------------
Name: Barbara L. Smithers
Title: Vice President and Corporate
Secretary
|
INDEX TO EXHIBITS
Exhibit
Number Description
------ -----------
2 Agreement and Plan of Merger, dated as of May 12, 2000, among
Champion, the Registrant and the Purchaser (incorporated by
reference to exhibit 2 to the Registrant's Registration Statement
on Form S-4, as amended on June 9, 2000).
4.1 Indenture, dated as of April 12, 1999, between the Registrant and
The Bank of New York, as Trustee.
4.2 Floating Rate Notes Supplemental Indenture, dated as of June 14,
2000, between the Registrant and the Bank of New York, as Trustee.
4.3 8% Notes Due July 8, 2003 Supplemental Indenture, dated as of June
14, 2000, between the Registrant and The Bank of New York, as
Trustee.
4.4 8 1/8% Notes Due July 8, 2005 Supplemental Indenture, dated as of
June 14, 2000, between the Registrant and The Bank of New York, as
Trustee.
4.5 Credit Agreement, dated as of June 14, 2000, among the Registrant,
International Paper Financial Services, Inc., various lenders and
Credit Suisse First Boston, New York Branch, as Administrative
Agent, Lead Arranger and Book Manager.
99.1 Registration Rights Agreement, dated as of June 14, 2000, between
the Registrant and the initial purchasers.
99.2 Press Release dated June 19, 2000.
|
EXHIBIT 4.1
INTERNATIONAL PAPER COMPANY
TO
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of April 12, 1999
Senior Debt Securities
Reconciliation and tie between Trust Indenture Act of 1939 and Indenture, dated as of April 12, 1999
Trust Indenture
Act Section Indenture Section
--------------- -----------------
Section 310(a)(l) ........................................... 6.9
(a)(2) ........................................... 6.9
(a)(3) ........................................... Not Applicable
(a)(4) ........................................... Not Applicable
(b) .............................................. 6.8
Section 311(a) .............................................. 6.10
(b) .............................................. 6.10
(b)(2) ........................................... 6.10
Section 312(a) .............................................. 7.1(a)
(b) .............................................. 7.1(b)
(c) .............................................. 7.1(c)
Section 313(a) .............................................. 7.2
(b) .............................................. 7.2
(c) .............................................. 7.2
(d) .............................................. 7.2
Section 314(a) .............................................. Not Applicable
(b) .............................................. Not Applicable
(c)(1) ........................................... 1.2
(c)(2) ........................................... 1.2
(c)(3) ........................................... Not Applicable
(d) .............................................. Not Applicable
(e) .............................................. 1.2
Section 315(a) .............................................. Not Applicable
(b) .............................................. Not Applicable
(c) .............................................. Not Applicable
(d) .............................................. Not Applicable
(d)(1) ........................................... Not Applicable
(d)(2) ........................................... Not Applicable
(d)(3) ........................................... Not Applicable
(e) .............................................. 5.14
|
Section 316(a) .............................................. 1.4
(a)(1)(A) ........................................ 5.2, 5.12
(a)(1)(B) ........................................ 5.13
(a)(2) ........................................... Not Applicable
(b) .............................................. 5.8
Section 317(a)(1) ........................................... 5.3
(a)(2) ........................................... 5.4
(b) .............................................. 10.3
Section 318(a) .............................................. 10.8
---------
|
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS(1)
PAGE
----
PARTIES ............................................................ 1
RECITALS OF THE COMPANY ............................................ 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions ............................................ 1
Act ................................................. 2
Affiliate ........................................... 2
Attributable Debt ................................... 2
Authenticating Agent ................................ 3
Authorized Newspaper ................................ 3
Bearer Security ..................................... 3
Board of Directors .................................. 3
Board Resolution .................................... 3
Book-Entry Security ................................. 3
Business Day ........................................ 3
Change in Control ................................... 3
Commission .......................................... 4
Common Stock ........................................ 4
Company ............................................. 4
Company Request" or "Company Order .................. 4
Continuing Director ................................. 4
Corporate Trust Office .............................. 4
Corporation ......................................... 4
Coupon .............................................. 5
Defaulted Interest .................................. 5
Depository .......................................... 5
Dollar" or "$ ....................................... 5
---------
1 NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
|
PAGE
----
Euro-clear .......................................... 5
Event of Default .................................... 5
Exchange Date ....................................... 5
Exercise Period ..................................... 5
Forestlands ......................................... 5
Funded Debt ......................................... 5
Holder .............................................. 5
Indenture ........................................... 6
Interest ............................................ 6
Interest Payment Date ............................... 6
Maturity ............................................ 6
Officers' Certificate ............................... 6
Opinion of Counsel .................................. 6
Original Issue Discount Security .................... 6
Outstanding ......................................... 6
Paying Agent ........................................ 8
Person .............................................. 8
Place of Payment .................................... 8
Predecessor Security ................................ 8
Principal Manufacturing Facility .................... 8
Redemption Date ..................................... 9
Redemption Price .................................... 9
Registered Security ................................. 9
Regular Record Date ................................. 9
Responsible Officer ................................. 9
Securities .......................................... 9
Security Register" and "Security Registrar .......... 9
Special Record Date ................................. 9
Stated Maturity ..................................... 9
Subsidiary .......................................... 10
Trustee ............................................. 10
Trust Indenture Act ................................. 10
United States ....................................... 10
United States Alien ................................. 10
U.S. Government Obligations ......................... 10
Vice President ...................................... 11
Yield to Maturity ................................... 11
ii
|
PAGE
----
Section 1.2 Compliance Certificates and Opinions ................ 11
Section 1.3 Form of Documents Delivered to Trustee .............. 12
Section 1.4 Acts of Holders ..................................... 13
Section 1.5 Notices, Etc., to Trustee and Company ............... 16
Section 1.6 Notice to Holders of Securities; Waiver ............. 17
Section 1.7 Language of Notices, Etc. ........................... 18
Section 1.8 Conflict with Trust Indenture Act ................... 18
Section 1.9 Effect of Headings and Table of Contents ............ 18
Section 1.10 Successors and Assigns .............................. 19
Section 1.11 Separability Clause ................................. 19
Section 1.12 Benefits of Indenture ............................... 19
Section 1.13 Governing Law ....................................... 19
Section 1.14 Legal Holidays ...................................... 19
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally ..................................... 20
Section 2.2 Form of Trustee's Cerificate of Authentication ...... 20
Section 2.3 Securities in Global Form ........................... 21
Section 2.4 Form of Legend for Book-entry Securities ............ 22
Section 2.5 Form of Conversion Notice ........................... 22
ARTICLE III
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series ................ 23
Section 3.2 Denominations ....................................... 27
Section 3.3 Execution, Authentication, Delivery and Dating ...... 27
Section 3.4 Temporary Securities ................................ 29
Section 3.5 Registration, Registration of Transfer and Exchange . 32
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities and
Coupons ........................................... 36
Section 3.7 Payment of Interest; Interest Rights Preserved ...... 37
Section 3.8 Persons Deemed Owners ............................... 39
Section 3.9 Cancellation ........................................ 39
iii
|
Section 3.10 CUSIP Numbers ....................................... 40
Section 3.11 Computation of Interest ............................. 41
Section 3.12 Electronic Security Issuance ........................ 41
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture ............. 41
Section 4.2 Application of Trust Money .......................... 43
Section 4.5 Satisfaction, Discharge and Defeasance of
Securities of Any Series ....................... 43
ARTICLE V
REMEDIES
Section 5.1 Events of Default ................................... 46
Section 5.2 Acceleration of Maturity; Rescission and Annulment .. 48
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee ..................................... 49
Section 5.4 Trustee May File Proofs of Claim .................... 50
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities or Coupons .......................... 51
Section 5.6 Application of Money Collected ...................... 52
Section 5.7 Limitation on Suits ................................. 52
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest ........................... 53
Section 5.9 Restoration of Rights and Remedies .................. 53
Section 5.10 Rights and Remedies Cumulative ...................... 54
Section 5.11 Delay or Omission Not Waiver ........................ 54
Section 5.12 Control by Holders of Securities .................... 54
Section 5.13 Waiver of past Defaults ............................. 55
Section 5.14 Undertaking for Costs ............................... 55
Section 5.15 Waiver of Stay or Extension Laws .................... 56
iv
|
PAGE
----
ARTICLE VI
THE TRUSTEE
Section 6.1 Certain Rights of Trustee ........................... 56
Section 6.2 Not Responsible for Recitals or Issuance of
Securities ..................................... 57
Section 6.3 May Hold Securities ................................. 58
Section 6.4 Money Held in Trust ................................. 58
Section 6.5 Compensation and Reimbursement ...................... 58
Section 6.6 Resignation and Removal; Appointment of Successor ... 59
Section 6.7 Acceptance of Appointment by Successor .............. 60
Section 6 8 Disqualification; Conflicting Interests ............. 62
Section 6.9 Corporate Trustee Required; Eligibility ............. 62
Section 6.10 Preferential Collection of Claims Against Company ... 62
Section 6.11 Merger, Conversion, Consolidation or Succession to
Business ....................................... 62
Section 6.12 Appointment of Authenticating Agent ................. 63
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Preservation of Information; Communications
To Holders ..................................... 65
Section 7.2 Reports by Trustee .................................. 67
Section 7.3 Original Issue Discount ............................. 67
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE, TRANSFER
OR OTHER DISPOSITION
Section 8.1 Company May Consolidate, Etc. Only on Certain Terms . 67
Section 8.2 Successor Substituted ............................... 69
v
|
PAGE
----
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders .. 69
Section 9.2 Supplemental Indentures with Consent of Holders ..... 71
Section 9.3 Execution of Supplemental Indentures ................ 72
Section 9.4 Effect of Supplemental Indentures ................... 73
Section 9.5 Conformity with Trust Indenture Act ................. 73
Section 9.6 Reference in Securities to Supplemental Indentures .. 73
ARTICLE X
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest .......... 74
Section 10.2 Maintenance of OffIce or Agency ..................... 74
Section 10.3 Money for Securities Payments to Be Held in
Trust .......................................... 76
Section 10.4 Additional Amounts .................................. 77
Section 10.5 Existence ........................................... 78
Section 10.6 Purchase of Securities by Company or Subsidiary ..... 79
Section 10.7 Limitation on Liens ................................. 79
Section 10.8 Limitation on Sale and Lease-back Transactions ...... 81
Section 10.9 Statement by Officers as to Default ................. 82
Section 10.10 Waiver of Certain Covenants ......................... 82
Section 10.11 Defeasance of Certain Obligations ................... 82
ARTICLE XI
REDEMPTION OF SECURITIES
Section 11.1 Applicability of Article ............................ 84
Section 11.2 Election to Redeem; Notice to Trustee ............... 84
Section 11.3 Selection by Trustee of Securities to Be Redeemed ... 85
Section 11.4 Notice of Redemption ................................ 86
Section 11.5 Deposit of Redemption Price ......................... 87
vi
|
PAGE
----
Section 11.6 Securities Payable on Redemption Date ............... 87
Section 11.7 Securities Redeemed in Part ......................... 88
ARTICLE XII
SINKING FUNDS
Section 12.1 Applicability of Article ............................ 88
Section 12.2 Satisfaction of Sinking Fund Payments with Securities 89
Section 12.3 Redemption of Securities for Sinking Fund ........... 89
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
Section 13.1 Purposes for Which Meetings May Be Called ........... 90
Section 13.2 Call, Notice and Place of Meetings .................. 90
Section 13.3 Persons Entitled to Vote at Meetings ................ 91
Section 13.4 Quorum; Action ...................................... 91
Section 13.5 Determination of Voting Rights; Conduct and
Adjournment of Meetings ........................ 93
Section 13.6 Counting Votes and Recording Action of Meetings ..... 94
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
Section 14.1 Applicability of Article ............................ 94
Section 14.2 Redemption at Option of Holders upon a Change
In Control of the Company ...................... 95
Section 14.3 Notice of Change in Control ......................... 95
Section 14.4 Deposit of Redemption Price ......................... 96
vii
|
PAGE
----
ARTICLE XV
CONVERSION OF SECURITlES
Section 15.1 Applicability of Article ............................ 96
Section 15.2 Exercise of Conversion Privilege .................... 97
Section 15.3 No Fractional Shares ................................ 98
Section 15.4 Adjustment of Conversion Price ...................... 99
Section 15.5 Notice of Certain Corporate Actions ................. 99
Section 15.6 Reservation of Shares of Common Stock ............... 100
Section 15.7 Payment of Certain Taxes upon Conversion ............ 101
Section 15.8 Nonassessability .................................... 101
Section 15.9 Effect of Consolidation or Merger on
Conversion Privilege ........................... 101
Section 15.10 Duties of Trustee Regarding Conversion .............. 102
Section 15.11 Repayment of Certain Funds upon Conversion .......... 103
|
INDENTURE, dated as of April 12, 1999, between International Paper Company, a corporation duly organized and existing under the laws of the State of New York (herein called the "Company"), having its principal office at Two Manhattanville Road, Purchase, New York 10577, and The Bank of New York, a national banking association duly organized and existing under the laws of the United States of America, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of a series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular:
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States of America, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted in the United States of America at the date of this instrument; and
(4) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms used principally in Article Six are defined in that Article.
"Act", when used with respect to any Holder of a Security, has the meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control", when used with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "contro11ing" and "controlled" have meanings correlative to the foregoing.
"Attributable Debt" shall mean, at the time of determination, the present value (discounted at the interest rate, compounded semiannually, equal to the weighted average Yield to Maturity of the Securities then Outstanding hereunder, such average being weighted by the principal amount of the Securities of each series or, in the case of Original Issue Discount Securities, such amount to be determined as provided in the definition of "Outstanding") of the obligation of a lessee for net rental payments during the remaining term of any lease (including any period for which such lease has been extended) entered into in connection with a sale and lease-back transaction.
"Authenticating Agent" means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the place, in connection with which the term is used, or in the financial community of such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form set forth in either Exhibit C or Exhibit D to this Indenture or established pursuant to Section 2.1 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the legend specified in
Section 2.4, evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee. Book-Entry Securities shall not be deemed to be
securities in global form for purposes of Sections 2.1 and 2.3 and Article III
of the Indenture."
"Business Day", when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or other location are authorized or obligated by law or executive order to close.
"Change in Control" shall mean a change in control of the Company which shall be deemed to have occurred at such time or times as (1) the Company determines
that any Person or related group of persons is the beneficial owner, directly
or indirectly, of 20% or more of the outstanding Common Stock of the Company or
(2) individuals who constitute the Continuing Directors cease for any reason to
constitute at least a majority of the board of directors of the Company.
"Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1933, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
"Common Stock" includes any stock of any class of the Company which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Continuing Director" means an individual who is a member of the Board of Directors of the Company on the date of this Indenture or who shall have become a member of the Board of Directors of the Company subsequent to such date and who shall have been nominated or elected by a majority of the other Continuing Directors then members of the Board of Directors of the Company.
"Corporate Trust Office" means the principal office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be administered and which, as of the date hereof, is located at 101 Barclay Street, Floor 21 West, New York, New York 10286.
"Corporation" means a corporation, association, company, joint-stock company or business trust.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more Book-Entry Securities, the clearing agency registered under the Securities Exchange Act of 1934, as amended specified for that purpose as contemplated by Section 3.1.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Date" has the meaning specified in Section 3.4.
"Exercise Period" means the period commencing with the day notice is first given to Holders by the Company pursuant to Section 14.3 of a Change in Control and ending with the day twenty days thereafter, excluding the day such notice is first given and including such twentieth day.
"Forestlands" shall mean at any time property in the United States which contains standing timber which is, or upon completion of a growth cycle then in process is expected to become, of a commercial quantity and of merchantable quality excluding from the term "Forestlands," however, any land which at the time is held by, or has been or is after the date hereof transferred to a Subsidiary primarily for development and/or sale, and not primarily for the production of any lumber or other timber products.
"Funded Debt" shall mean indebtedness for money borrowed which by its terms matures at, or is extendible or renewable at the option of the obligor, to a date more than twelve months after the date of the creation of such indebtedness.
"Holder", when used with respect to any Security, means in the case of a Registered Security, the Person in whose name the Security is registered in the
Security Register and in the case of a Bearer Security the bearer thereof and, when used with respect to any coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee. One of the Officers signing an Officers' Certificate given pursuant to Section 10.9 shall be the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
"Outstanding", when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or whether a quorum is present at a meeting of Holders of Securities (i) the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof pursuant to Section 5.2, (ii) the principal amount of a Security denominated in a foreign currency or currencies shall be the U.S. dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, and (iii) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obliger shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, or upon any such determination as to the presence of a quorum, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obliger.
"Paying Agent" means any Person authorized by the Company to pay the principal of and any premium and interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 10.2, the principal of and any premium and interest on the Securities of that series are payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains, as the case may be.
"Principal Manufacturing Facility" shall mean any paperboard, paper or pulp mill or any paper converting plant of the Company or any Subsidiary which is located within the United States, other than any such mill or plant or portion thereof which is financed by obligations issued by a State, a Territory, or a possession of the United States, or any political subdivision of any of the foregoing, or the District of Columbia, the interest on which is excludable from gross income of the holders thereof pursuant to the provisions of Section 1.3(a) of the Internal Revenue Code (or any successor to such provision) as in effect at the time of issuance of such obligations, or which,in the opinion of the Board of Directors, is not of material importance to the total business conducted by the Company and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form set forth in either Exhibit A or Exhibit B to this Indenture or established pursuant to Section 2.1 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 3.1, whether or not such a day is a Business Day.
"Responsible Officer", when used with respect to the Trustee, means any vice president, any assistant vice president, any assistant treasurer, any trust officer or assistant trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective meanings specified in Section 3.5.
"Special Record Date" for the payment of any Defaulted Interest on the Registered Securities of any series means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
"Subsidiary" shall mean any corporation of which at least a majority of the outstanding stock having by the terms thereof ordinary voting power to elect a majority of the board of directors of such corporation (whether or not at the time stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by the Company, or by one or more Subsidiaries, or by the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act" means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means direct obligations of the United States for the payment of which its full faith and credit is pledged, or obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States and the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933,
as amended) as custodian with respect to any such U.S. Government Obligations or a specific payment of or interest on any such U.S. Government Obligations held by such custodian for the account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obiigations or the specific payment of principal of or interest on the U.S. Government Obligations evidenced by such depository receipt.
"Vice President," when used with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president".
"Yield to Maturity" means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers' Cerificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion by or on behalf of the Company with respect to compliance with a condition or covenant provided for in this Indenture except for certificates provided for in Section 10.9 shall include:
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Perscn may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a cetiificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the cetiificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 1.4 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substan- tially similar tenor signed by such Holders in person or by agent duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly called and held in accordance with the provisions of Article Thirteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent or proxy, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Company. If made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Registered Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities held by
any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
(f) With respect to the Securities of any Series all or part of which are represented by Book-Entry Securities, the following provisions shall apply:
(1) Upon receipt by the Trustee of (i) any written notice directing the time, method or place of conducting any proceeding or exercising any test or power pursuant to Section 5.12 with respect to Securities of such series or (ii) any written demand, request or notice with respect to any matter on which the Holders of Securities of such series are entitled to act under this Indenture, in each case from Holders of less than, or proxies representing less than, the requisite
principal amount of Outstanding Securities or such series entitled to give such demand, request or notice, the Trustee shall establish a record date for determining Holders of Outstanding Securities of such series entitled to join in such demand, request or notice, which record date shall be the close of business on the day the Trustee received such demand, request or notice. The Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such demand, request or notice whether or not such Holders remain Holders after such record date; provided, however, that unless the Holders of the requisite principal amount of Outstanding Securities of such series shall have joined in such demand, request or notice prior to the day which is the ninetieth day after such record date, such demand, request or notice shall automatically and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving, (i) after the expiration of such 90 day period, a new demand, request or notice identical to a demand, request or notice which has been canceled pursuant to the proviso to the preceding sentence or (ii) during any such 90-day period, a new demand, request or notice which has been canceled pursuant to the proviso to the preceding sentence or (iii) during any such 90-day period, a new demand, request or notice contrary to or different from such demand, request or notice, in either of which events a new record date shall be estabiished pursuant to the provisions of this clause (1).
(2) The Company may, but shall not be obligated to, direct the
Trustee to establish a record date for the purpose of determining the
Persons entitled to (i) waive any past default with respect to the
Securities of such series in accordance with Section 5.13 of the
Indenture, (ii) consent to any supplemental indenture in accordance with
Section 9.2 of the Indenture or (iii) waive any term, condition or
provision of any covenant in accordance with Section 10.10 of the
Indenture. If a record date is fixed, the Holders on such record date, or
their duly designated proxies, and only such Persons, shall be entitled to
waive any such past default, consent to any such supplemental indenture or
waive any such term, condition or provision, whether or not such Holder
remains a Holder after such record date; provided, however, that unless
such waiver or consent is obtained from the Holders, or duly designed
proxies, of the requisite principal
amount of Outstanding Securities of such series prior to the date which is the ninetieth day after such record date, any such waiver or consent previously given shall automatically and without further action by any Holder be canceled and of no further effect.
(g) The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as the record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given or taken by Holders of Securities of such series. With regard to any record date set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date (or their duly appointed agents), and only such Persons, shall be entitled to give or take the relevant action, whether or not such Holders remain Holders after such record date. With regard to any action that may be given or taken hereunder only by Holders of a requisite principal amount of Outstanding Securities of any series (or their duly appointed agents) and for which a record date is set pursuant to this paragraph, the Company may, at its option, set an expiration date after which no such action purported to be given or taken by any Holder shall be effective hereunder unless uiven or taken on or prior to such expiration date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date (or their duly appointed agents). On or prior to any expiration date set pursuant to this paragraph, the Company may, on one or more occasions at its option, extend such date to any later date. Nothing in this paragraph shall prevent any Holder (or any duly appointed agent thereof) from giving or taking, after any expiration date, any action identical to, or, at any time, contrary to or different from, any action given or taken, or purported to have been given or taken, hereunder by a Holder on or prior to such date, in which event the Company may set a record date in respect thereof pursuant to this paragraph. Notwithstanding the foregoing or the Trust Indenture Act, the Company shall not set a record date for, and the provisions of this paragraph shall not apply with respect to, any action to be given or taken by Holders pursuant to Section 5.1, 5.2 or 5.12.
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument, to the attention of its Secretary, or at any other address previously furnished in writing to the Trustee by the Company.
SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of Securities of any event:
(1) such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at the address of such Holder as it appears in the Security Register, not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer Securities if published in an Authorized Newspaper in The City of New York, The City of London and in such other city or cities as may be specified in such Securities on a Business Day at least twice, the first such publication to be not earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice to Holders of Registered Securities by mail, then such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder, In any case where notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein.
In case by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer Securities as provided above, then such notification as shall be given with the approval of the Trustee shall constitute sufficient notice to such Holders for every purpose hereunder. Neither the failure to give notice by publication to Holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
SECTION 1.7 LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
SECTION 1.8 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control.
SECTION 1.9 EFFECT OF HEADINGS AIND TABLE OF CONTENTS.
The Article and Section heading herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.10 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 1.11 SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.12 BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or implied, shall give to any Person. other than the parties hereto, their successors hereunder and the Holders of Securities and coupons, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.13 GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws.
SECTION 1.14 LEGAL HOLIDAYS.
In any case where any Interest Payment Date. Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Securities or coupons other than a provision in the Securities of any series which specifically states that such provision shall apply in lieu of this Section) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer Securities, if any, of each series and related coupons shall be in substantially the forms set forth in Exhibits A, B, C or D to this Indenture, or in such other form (including temporary or permanent global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Securities or coupons, as evidenced by their execution of the Securities or coupons. If temporary Securities of any series are issued in global form as permitted by Section 3.4, the form thereof shall be established as provided in the preceding sentence. If the forms of Securities or coupons of any series (or any such temporary global Security) are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.3 for the authentication and delivery of such Securities (or any such temporary global Security) or coupons.
Unless otherwise specified as contemplated by Section 3.1, Securities in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Securities or coupons, as evidenced by their execution of such Securities or coupons.
SECTION 2.3 FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Dated_______________ The Bank of New York, as Trustee
By:___________________________________
Authorized Signatory
|
SECTION 2.3 SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 3.1, then, notwithstanding clause (11) of Section 3.1
and the provisions of Section 3.2, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or
in the Company Order to be delivered to the Trustee pursuant to Section 3.3 or
Section 3 4 Subject to the provisions of Section 3.3 and, if applicable,
Section 3.4, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 3.3 or 3.4 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 shall apply to any security represented by a Security in global form if such Security was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and 3.7, unless otherwise specified as contemplated by Section 3.1, payment of principal of and any premium and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat a Person as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security as shall be specified in a written statement of the Holder of such permanent global Security or, in the case of a permanent global Security in bearer form, of Euro-clear or CEDEL S.A. which is provided to the Trustee by such Person.
SECTION 2.4 FORM OF LEGEND FOR BOOK-ENTRY SECURITIES
Any Book-Entry Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the Indenture hereinafter referred to and is registered in the name of a Depository or a nominee of a Depository. This Security is exchangeable for Securities registered in the name of a Person other than the Depository or its nominee only in the limited circumstances described in the Indenture, and no transfer of this Security (other than a transfer of this Security as a whole by the Depository to a nominee of the Depository or by a nominee of the Depository to the Depository or another nominee of the Depository) may be registered except in such limited circumstances."
SECTION 2.5 FORM OF CONVERSION NOTICE.
The form of conversion notice for the conversion of Securities into shares of Common Stock or other securities of the Company shall be in substantially the form included with the applicable form of Securities as set forth in Exhibits A, B, C and D hereto.
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution and, subject to Section 3.3, set forth, or determined in the manner provided, in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to Section 3.3, are deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities or both, whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 3.5;
(4) the Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 3.4;
(5) the date or dates on which the principal of the Securities of the series is payable;
(6) the rate or rates at which the Securities of the series shall bear interest, if any, or the formula pursuant to which such rate or rates shall be determined, the date or dates from which any such interest shall accrue, the Interest Payment Dates on which any such interest shall be payable, the Regular Record Date for any interest payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Sections
11.4 and 10.2, the principal of and any premium and interest on Securities
of the series shall be payable, any Registered Securities of the series,
may be surrendered for registration of transfer, Securities of the series
may be surrendered for exchange, notices and demands to or upon the
Company in respect of the Securities of the series and this Indenture may
be served and where notices to Holders of Bearer Securities pursuant to
Section 1.6 will be published;
(8) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(9) the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Holders pursuant to Article XIV, or such terms and conditions as shall be set forth in an Officers' Certificate or supplemental indenture;
(10) the obligation, if any, of the Company to redeem or purchase Securities of the series, or panicuiar Securities within the Series, pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, including without limitation pursuant to Article XIV, and the period or periods within which, the price or prices at which and the terms and conditions upon such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(11) the terms of any right to convert or exchange Securities of the series, either at the option of the Holder thereof or the Company, into or for shares of Common Stock of the Company or other securities or property, including without limitation the period or periods within which and the price or prices (including adjustments thereto) at which any Securities of the series shall be convened or exchanged, in whole or in pan;
(12) the denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof, and the denomination or denominations in which any Bearer Securities of the series shall be issuable, if other than the denomination of $5,000;
(13) the currency or currencies, including composite currencies, in which payment of the principal of and any premium and interest on the Securities of the series shall be payable if other than the currency of the United States of America:
(14) if the principal of and any premium or interest on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies, including composite currencies, other than that or those in which the Securities are stated to be payable, the currency or currencies in which payment of the principal of and any premium and interest on Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(15) if the amount of payments of principal of and any premium or interest on the Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined:
(16) if other than the principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 5.2;
(17) the Person who shall be the Security Reyistrar, if other than the Company;
(18) whether the Securities of the series shall be issued upon original issuance in whole or in part in the form of one or more Book-Entry Securities and, in such case, (a) the Depository with respect to such Book-Entry Security or Securities; and (b) the circumstances under which any such Book-Entry Security may be exchanged for Securities registered in the name of, and any transfer of such Book-Entry Security may be registered to, a Person other than such depository or its nominee, if other than as set forth in Section 3.5;
(19) if either or both of the provisions of Section 13.3 or 13.3 are applicable to the Securities of such series; and
(20) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture).
A11 Securities of any one series and the coupons appertaining to any Bearer Securities of such series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.3) set forth in the Officers' Certificate referred to above or in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 3.2 DENOMINATIONS.
Unless otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, any Registered Securities of a series shall be issuable in denominations of $1,000 and any integral multiple thereof and any Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents, attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Coupons shall bear the facsimile signature of the Treasurer or any Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hoid such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series, together with any coupons appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities; provided, however, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered to any location in the United States; and provided, further, that a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to receive such Bearer Security shall have furnished a certificate in the form set forth in Exhibit E.1 to this Indenture, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary global Security first becomes exchangeable for such Bearer Security in accordance with the terms of such temporary global Security and this Indenture. If any Security shall be
represented by a permanent global Bearer Security, then, for purposes of this
Section and Section 3.4, the notation of a beneficial owner's interest therein
upon original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivered in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 3.6, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons for
interest then matured have been detached and cancelled.
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions
as permitted by Sections 2.1 and 3.1, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel
stating:
(a) if the forms of such Securities and any coupons have been established by or pursuant to Board Resolution as permitted by Section 2.1, that such forms have been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been established by or pursuant to Board Resolution as permitted by Section 3.1, that such terms have been established in conformity with the provisions of this Indenture; and
(c) that such Securities, together with any coupons appertaining thereto, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject, as to enforcement. to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles.
If such forms or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue or such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the two preceding paragraphs, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to deliver the Officers' Certificate otherwise required pursuant to Section 3.1 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraphs at or prior to the time of authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication; and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security to which such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.9 together with a written statement (which need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced. in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities or coupons may determine, as evidenced by their execution of such Securities or coupons. In the case of any series issuable as Bearer Securities,
such temporary Securities may be in global form. A temporary Bearer Security shall be delivered only in compliance with the conditions set forth in Section 3.3.
Except in the case of temporary Securities in global form (which shall be exchanged in accordance with the provisions of the following paragraphs), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company maintained pursuant to Section 10.2 in a Place of Payment for such series for the purpose of exchanges of Securities of such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining thereto) the Company shall execute and the Trustee shal1 authenticate and deliver in exchange therefor a like aggregate principal amount of definitive Securities of the same series and of like tenor of authorized denominations; provided, however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any such temporary global Security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the "Common Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary global Security (the "Exchange Date"), the Company shall deliver to the Trustee definitive Securities of that series, in aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or after the Exchange Date such temporary global Security shall be surrendered by the Common Depositary to the Trustee, as the Company's asent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of such series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary slobal Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary global Security to be exchanged; provided, however, that, unless othewise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit E.3 to this Indenture. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 3.1, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 3.3.
Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euro-clear or CEDEL S.A., as the case may be, to request such exchange on his behalf and delivers to Euro-clear or CEDEL S.A., as the case may be, a certificate in the form set forth in Exhibit E.1 to this Indenture, dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euro-clear and CEDEL S.A., the Trustee, any authenticating Agent appointed for such series of Securities and each Paying Agent. Unless othewise specified in such temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Securities in person at the offices of Euro-clear or CEDEL S..4. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by section 3.1, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon delivery
by Euro-clear and CEDEL S.A. to the Trustee of a certificate or certificates in the form set forth in Exhibit E.3 to this Indenture, for credit without further interest on or after such Interest Payment Date to the respective accounts of the Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the form set forth in Exhibit E.4 to this Indenture. Any interest so received by Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to the Trustee immediately prior to the expiration of two years after such interest Payment Date in order to be repaid to the Company in accordance with Section 10.3.
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 10.2 a register (being the combined register of the Security Registrar and all transfer agents designated pursuant to Section 10.2 for the purpose of registration of transfer of Secutities and sometimes collectively referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities. The Trustee is hereby appointed "Security Registrar" for the purpose of registering Registered Securities and transfers of Registered Securities as herein provided.
Upon due surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 10.3 for such purpose in a Place of Pavment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the desigiated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitied to receive. Registered Securities may not be exchanged for Bearer Securities.
At the option of the Holder, Bearer Securities of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured coupons, and all matured coupons in default appertaining thereto. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity as they may required to save each of them and any Paying Agent harmless. If thereafter the Holder of such Securities shall surrender to any Paying Agent any such missing coupon in respect of which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment; provided, however, that, except as otherwise provided in Section 10.2, interest represented by coupons shall be payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series and like tenor after the close of business at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 3.1, any permanent global Security shall be exchangeable only as provided in this paragraph. If the beneficial owners of interests in a permanent global Security are entitled to exchange such interests for Securities of such series and of
like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 3.1, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent global Security, executed by the Company. On or after the earliest date on which such interests may be so exchanged, such permanent global Security shall be surrendered by the Common Depositary or such other depositary or Common Depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company's agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities of such series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such permanent global Security to be exchanged which, unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, as specified as contemplated by Section 3.1, shall be in the form of Bearer Securities or Registered Securities, or any combination thereof, as shall be specified by the beneficial owner thereof; provided, however, that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agencv on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar or any transfer agent duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before any selection of Securities of that series to be redeemed and ending at the close of business on (A) if Securities of the series are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if Securities of the series are issuable as Bearer Securities, the day of the first publication of the relevant notice of redemption or, if Securities of the series are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, (ii) to register the transfer of or exchange any Registered Security so selected for redemption, in whole or in part, except the unredeemed portion of any Security being redeemed in part, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered Security of that series and iike tenor, provided that such Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as othewise specified or
contemplated by Section 3.1, any Book-Entry Security shall be exchangeable
pursuant to this Section 3.5 or Sections 3.4, 9.6 and 11.7 for Securities
registered in the name of, and a transfer of a Book-Entry Security or any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that it
is unwilling or unable to continue as Depository for such Book-Entry Security
or if at any time such Depository ceases to be a clearing agency registered
under the Securities Exchange Act of 1933, as amended, (ii) the Company
executes and delivers to the Trustee a Company Order that such Book-Entry
Security shall be so exchangeable and the transfer thereof so registerable or
(iii) there shall have occurred and be continuing an Event of Default, or an
event which after notice or lapse of time would be an Event of Default, with
respect to the Securities of such series. Upon the occurrence in respect of any Book-Entry Security of any series of any one or more of the conditions specified in clauses (i), (ii) or (iii) of the preceding sentence or such other conditions as may be specified as contemplated by Section 3.1 for such series, such Book-Entry Security may be exchanged for Securities registered in the names of, and the transfer of such Book-Entry Security may be registered to, such Persons (including Persons other than the Depository with respect to such series and its nominees) as such Depository shall direct. Notwithstanding any other provision of this Indenture, any Security authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall also be a Book-Entry Security and shall bear the legend specified in Section 2.4 except for any Security authenticated and delivered in exchange for, or upon registration of transfer of, Book-Entry Security pursuant to the preceding sentence.
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES AND COUPONS.
If any mutilated Security or a Security with a mutilated coupon appertaining thereto is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered Security and such mutilated Security or a Security with a mutilated coupon, if any, shall be cancelled by the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may be required by them, then, in the absence of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall, subject to the following paragraph, execute, and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security or coupon; provided, however, that principal of and any premium and interest on Bearer Securities shall, except as otherwise provided in Section 10.2, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with any coupons appertaining thereto, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and any coupons appertaining thereto, or the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and any such new Security and coupons, if any, shal1 be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Unless otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.
Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided in Clause (1) and (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at the address of such Holder as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2); and
(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Sections 3.5 and 3.7) any interest on such Security and for all other purposes whatsoever, whether or not such Security shall be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by deliver). The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of any Bearer Security and the Bearer of any coupon as the owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon shall be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.9 CANCELLATION.
All Securities and coupons surrendered for payment, redemption, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee. All Registered Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities and unmatured coupons so delivered shall be cancelled. All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall be deemed to be delivered for cancellation for
all purposes of this Indenture and the Securities. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities and coupons held by the Trustee shall be disposed of as directed by a Company Order (provided that in no event shall the Trustee be directed to destroy such canceled Securities and coupons), or in the absence of a Company Order, may be disposed of by the Trustee in accordance with its procedures relating to the disposition of canceled securities in effect as of the date of such disposition.
Notwithstanding the foregoing, with respect to any Book-Entry Security, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depository or impair, as between a Depository and holders of beneficial interests in any Book-Entry Security, the operation of customary practices governing the exercise of the rights of the Depositary (or its nominee) as Holder of such Book-Entry Security.
SECTION 3.10 CUSIP NUMBERS.
The Company in issuing the Securities may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may bve placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers.
SECTION 3.11 COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.1 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.12 ELECTRONIC SECURiTY ISSUANCE.
The Securities may pursuant to a Board Resolution and Officers Certificate complying with Section 3.1 hereof be issued by means of an electronic issuance system. Any such Security issuance instructions may specify the name, address and taxpayer identification number of the Holder, the principal amount and Maturity of the Security, the interest rate to be borne by the Security and any other terms not inconsistent with such Board Resolution and Officers Certificate. Nothing in this Section 3.11 shall be construed as prohibiting the Company from issuing Securities by any means not inconsistent with the provisions of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Securities herein expressly provided for, and any right to receive additional amounts, as provided in Section 10.4), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture, when:
(1) either
(A) all Securities theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 3.5, (ii) Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 3.6, (iii) coupons
appertaining to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in
Section 11.6, and (iv) Securities and coupons for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such
trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of(i) or (ii) below, any coupons appertaining thereto not theretofore delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose, an amount sufficient to pay and discharge the entire indebtedness on such Securities and coupons not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and any interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.7, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to clause (l)(B) of this Section, the obligations of the Trustee under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY
Subject to the provisions of the last paragraph of Section 10.3, ail money deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and any interest for whose payment such money has been deposited with the Trustee.
SECTION 4.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY SERIES.
If this Section 4.3 is specified, as contemplated by Section 3.1, to be
applicable to Securities of any series, then notwithstanding Section 4.1: (i)
the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of any such series; (ii) the provisions of
this Indenture as it relates to such Outstanding Securities shall no longer be
in effect (except as to the rights of Holders of Securities to receive, from
the trust fund described in subparagraph (1) below, payment of (x) the
principal of (and premium, if any) and any installment of principal of (and
premium, if any) or interest on such Securities on the Stated Maturity of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest or (y) any mandatory sinking fund payments or analogous
payments applicable to the Securities of that series on that day on which such
payments are due and payable in accordance with the terms of the Indenture and
of such Securities, the Companys obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 10.2, 10.3, and 10.4 and the rights, powers,
trusts, duties and immunities of the Trustee hereunder, including those under
Section 6.7 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Request, execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when:
(1) either
(A) with respect to all Outstanding Securities of such series, with
reference to this Section 4.3, the Company has deposited or caused to be
deposited with the Trustee irrevocably (but subject to the provisions of
Section 4.2 and the last paragraph of Section 10.3), as trust funds in
trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series, (X) lawful
money of the United States in an amount, or (Y) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than the
opening of business on the due dates of any payment referred to in Clause
(i) or (ii) of this subparagraph (l)(A) lawful money of the United
States in an amount, or (z) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge (i) the principal of (and premium, if any) and each
installment of principal (and premium, if any) and interest on the
Outstanding Securities of that series on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to Securities of
such series on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of such Securities; or
(B) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 3.1, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable with respect to the Outstanding Securities of such Series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default
with respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which with the giving of notice
or lapse of time, or both, would become an Event of Default under Section
5.1(6) or Section 5.1(7) shall have occurred and be continuing on the
91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of Counsel to the effect that (a) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (b) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of Securities of such series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(6) if the Securities of that series are then listed on any domestic or foreign securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Securities to be delisted; and
(7) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities of any such series have been complied with and an Opinion of Counsel to the effect that either (i) as a result of such deposit and the related exercise of the Companys option under this Section 4.3, registration is not required under the Investment Company Act of 1940, as amended, by the Company, the trust funds representing such deposit or the Trustee or (ii) all necessary registrations under said Act have been effected.
Any deposits with the Trustee referred to in Section 4.3(1)(A) above shall be irrevocable and shall be made under the terms of an escrow/trust agreement in form
and substance satisfactory to the Trustee. If any Outstanding Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable escrow trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 4.3 with respect to all the Outstanding Securities of any series, the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company; provided that the Company shall not be discharged from any payment obligations in respect of Securities of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
4.3) of the Company under this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 6.7,
and the obligations of the Trustee under Section 1.2 and the last paragraph of
Section 10.3 shall survive with respect to such series of Securities.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default", hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities of that series.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before adjudgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay,
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR EN- FORCEMENT BY TRUSTEE.
The Company covenants that if,
(1) default is made in the payment of any interest on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities of that series and any coupons appertaining thereto, the whole amount then due and payable on such Securities of that series and coupons for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and on the premium, if any, and overdue interest, at the rate or rates prescribed therefor in such Securities of that series and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any coupons appertaining thereto by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall haye made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal and any premium and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders of Securities and coupons allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities and coupons to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities and coupons, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or coupon in any such proceeding.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR COUPONS.
All rights of action and claims under this Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which such judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7; and
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest on the Securities and coupons in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities and coupons for principal and any premium and interest, respectively.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security of any series or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless;
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.7) interest on such Security or payment of such coupon on the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders of Securities and coupons shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph of Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive or any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders of Securities or coupons may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES
The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series, provided that,
(1) such direction shall not be in conflict with any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all the Securities of such series and any coupons appertaining thereto waive any past default hereunder with respect to the Securities of such series and its consequences, except a default,
(1) in the payment of the principal of (or premium, if any) or any interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorney's fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder of any Security or coupon for the enforcement of the payment of the principal of or any premium or interest on any Security or the payment of any coupon on or after the Stated Maturity or Maturities expressed in such Security or coupon (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order or as otherwise expressly provided herein and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
SECTION 6.2 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the Trustees certificates of authentication) and in any coupons shall be taken as the statements of the Company, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or coupons. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 6.3 MAY HOLD SECURITIES
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and coupons and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.4 MONEY HELD IN TRUST
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.5 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(1) to pay to the Trustee or any predecessor Trustee from time to time such compensation for all services rendered by it hereunder as the Company and the Trustee shall from time to time agree in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee or any predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the compensation and the expenses and disbursements of its agents and counsel, except any such expense, disbursement or advance as may be attributable to its negligence or bad faith); and
(3) to indemnify the Trustee and any predecessor Trustee and their agents for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
SECTION 6.6 RESIGNATION AND REMOVAL; APPONTMENT OF SUCCESSOR.
(a) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(b) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.
(c) If at any time:
(1) the Trustee shall fail to comply with Section 3.10(b) of the Trust Indenture Act after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 3.10(a) of the Trust Indenture Act and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.14 any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities of that series and accepted appointment in the manner required by Section 6.11, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(e) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series in the manner provided in Section 1.6. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
SECTION 6.7 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, tests and duties of the retiring Trustee; but on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the tests hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees as co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $5O,OOO,OOO. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 6.10 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obiigor).
SECTION 6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.12 APPOINTMENT OF AUTHENTICATTNG AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.6. and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustees certificate of authentication such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of such Authenticating Agent, shall continue to be an Authenticating Agent provided such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall promptly give notice of such appointment to all Holders of Securities pursuant to Section 1.6. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 6.7.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustees certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
Date______________________ The Bank of New York,
As Trustee
By:_____________________________
Authenticating Agent
By:_____________________________
Authorized Signatory
|
If all of the Securities of a series may not be originally issued at one time, and if the Company has an Affiliate eligible to be appointed as an Authenticating Agent hereunder or the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.2 and need not be accompanied by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent (which if so requested by the Company, shall be such Affiliate of the Company) having an office in a Place of Payment designated by the Company with respect to such series of Securities.
ARTICLE VII
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities (i) contained in the most recent list furnished to the Trustee as provided in Section 7.1, (ii) received by the Tnrstee in its capacity as Security Registrar and (iii) filed with it within the two preceding years pursuant to Section 7.3(c)(2). The Trustee may (i) destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished, (ii) destroy any information received by it as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee, not earlier than March 20 or September 20 of each year, a list containing the names and addresses of the Holders of Securities obtained from such information since the delivery of the next previous list, if any, (iii) destroy any list delivered to itself as Trustee which was compiled from information received by it as Paying Agent (if so acting) hereunder upon the receipt of a new list so delivered and (iv) destroy not earlier than wo years after filing, any information filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders of Securities (herein referred to as applicants) apply in writing to the Trustee, and furnish to the Trustee reasonable proof that each such applicant has owned a Security for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit, then the Trustee shall, within five business days after the receipt of such application, at its election, either
(i) afford such applicants access to the information preserved at the time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of Holders of Securities whose names and addresses appear in the information presented at the time by the Trustee in accordance with Section 7.2(a), and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of Securities whose name and address appears in the information preserved at the time by the Trustee in accordance with Section 7.2(a) a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment of the reasonable expenses of mailing, unless within five days after such tender the Trustee shall mail to such applicants and file with the Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interest of the Holders of Securities or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If the Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if after the entry of an order sustaining one or more of such objections, the Commission shall find, after notice and opportunity for hearing that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders of Securities with reasonable promptness after the entry of such order and the renewal of such tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with Section 72(b), regardless of the source from
which such information was derived and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 7.2(b).
SECTION 7.2 REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange or any delisting thereof.
SECTION 7.3 ORIGINAL ISSUE DISCOUNT.
The Company shall provide to the Trustee on a timely basis such information as the Trustee requires to enable the Trustee to prepare and file any form required to be submitted by the Company with the Internal Revenue Service and the Holders of the Securities relating to original issue discount, including, without limitation, Form 1099.OID or any successor form.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE, TRANSFER
OR OTHER DISPOSITION
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate or merge with or into any other Person or sell, lease, transfer or otherwise dispose of its assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate or merge with or into the Company or to sell, lease, transfer or otherwise dispose of its assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate or merge with or into another Person or sell, lease, transfer or otherwise dispose of its assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale, lease, transfer or otherwise, the assets of the Company substantially as an entirety shall be a corporation, partnership or trust, shall be organized and validly existing under the laws of the United States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture supplemen- tal hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest (including all additional amounts, if any, payable pursuant to Section 10.4) on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
(3) if as a result of any such consolidation or merger or such sale, lease, transfer or other disposition of the assets of the Company would become subject to a mortgage, pledge, lien, security interest or other encumbrance which would not be permitted by this Indenture, the Company or such successor Person, as the case may be, shall take such steps as shall be necessary effectively to secure the Securities equally and ratably with (or prior to) all indebtedness secured thereby; and
(4) the Company has delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, sale, lease, transfer or other disposition and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction have been complied with.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation or merger of the Company with or into any other Person or any sale, lease, transfer or other disposition of the assets of the Company substantially as an entirety in accordance with Section 8.1, the successor Person formed by such consolidation or into which the Company is merged or to which sale, lease, transfer or other disposition is made shall assume the obligations of the Company on the Securities and under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities and coupons.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company is then authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registerable as to principal to change or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of Section 10.7 or otherwise; or
(7) to establish the form or terms of Securities of any series and any related coupons as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the acceptance of appointment thereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or
(9) to make provision with respect to the conversion rights of Holders pursuant to the requirements of Article XV, including providing for the conversion of the Securities into any Security or property (other than the Common Stock of the Company); or
(10) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66-2.3% in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series and any related coupons under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change any obligation of the Company to pay additional amounts pursuant to Section 10.4 (except as contemplated by Section 8.1(l) and permitted by Section 9.1(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or change the coin or currency in which any Security or any premium or interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements of Section 13.4 for quorum or voting, or
(3) change any obligation of the Company to maintain an office or agency in the places and for the purposes specified in Section 10.2, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 10.10, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to
require the consent of any Holder of a Security or coupon with respect to
changes in the references to the Trustee and concomitant changes in this
Section and Section 10.10 or the deletion of this proviso, in accordance
with the requirements of Sections 6.11(b) and 9.1(8), or
(5) make any change that adversely affects the right to convert any Security as provided in Article XV or pursuant to Section 3.1 (except as permitted by Section 9.1) or decrease the conversion rate or increase the conversion price of any such Security.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 EXECUTlON OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act of 1939, as amended, in effect on such date.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 3.1 with respect to any series of Securities, any interest due on Bearer Securities on or before Maturity shall be payable only upon presentation and surrender outside the United States of the several coupons for such interest installments as are evidenced thereby as they severally mature.
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY.
If Securities of a series are issuable only as Registered Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (A) in The City of New York, an office or agency where any Registered Securities of that series may be presented or surrendered for payment, where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment in the circumstances described in the following paragraph (and not otherwise), (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located outside the United States, an office or agency where Securities of that series and related coupons may be presented and surrendered for payment (including payment of any additional amounts payable on Securities of thar series pursuant to Section 10.4); provided, however, that if the Securities of that series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland, the Luxembourg Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require,
the Company will maintain a Paying Agent for the Securities of that series in
London, Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange, and (C) subject to any laws or regulations applicable thereto
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt notice to the Trustee and to the Holders as
provided in Sections 1.3 and 1.6, respectively, of the location and any change
in the location, of any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency in respect of any series of
Securities or shall fail to furnish the Trustee with the address thereof, such
presentations and surrenders of Securities of that series may be made and
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment (including payment of any
additional amounts payable on Bearer Securities of that series pursuant to
Section 10.4) at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be made at any office or agency of the Company in the United States or by check mailed to any address in the United States or by transfer to any account maintained with a bank located in the United States; provided, however, that if the Securities of a series are denominated and payable in Dollars, payment of principal of and any premium and interest on any Bearer Security (including any additional amounts payable on Securities of such series pursuant to Section 10.4) shall be made at the office of the Companys Paying Agent in The City of New York, if (but only if) payment in Dollars of the full amount of such principal, premium, interest or additional amounts, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the Holders of any such designation or rescission and of any change in the location of any such other office or agency.
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of and any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities it will, prior to each due date of the principal of and any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay the principal and any premium or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of and any premium or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal of and any premium or interest on the Securities of that series; and
(3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of and any premium or interest on any Security of any series and remaining unclaimed for two years after such principal and any premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security or any coupon appertaining thereto shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money and all liability of the Company as trustee thereof shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment, notice that such money remains unclaimed and that after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.4 ADDITIONAL AMOUNTS.
If the Securities of a series provide for the payment of additional amounts, the Company will pay to the Holder of any Security of such series or any coupon appertaining thereto additional amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium or interest on, or in respect of any Security of any series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided for in this Section to the extent that, in such context additional amounts are, were or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the payment of additional amounts (if applicable) in any provisions hereof shall not be construed as excluding additional amounts in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers Certificate, the Company wiil furnish the Trustee and the Companys principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons who are United States Aliens without withholding for or on account of any tax assessment or other governmental charge described in the Securities of that series. If any such withholding shall be required, then such Officers Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities or coupons and the Company will pay to the Trustee or such Paying Agent the additional amounts required by this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss liability or expense reasonably incurred without negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 10.5 EXISTENCE.
Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.6 PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY.
If and so long as the Securities of a series are listed on The Stock Exchange of the United Kingdom and the Republic of Ireland and such stock exchange shall so require, the Company will not, and will not permit any of its Subsidiaries to, purchase any Securities of that series by private treaty at a price (exclusive of expenses and accrued interest) which exceeds 120% of the mean of the nominal quotations of the Securities of that series as shown in The Stock Exchange Daily Official List for the last trading day preceding the date of purchase.
SECTlON 10.7 LIMITATION ON LIENS.
(a) The Company will not, nor will it permit any Subsidiary to, issue, assume or guarantee any indebtedness for money borrowed (hereinafter in this Article Ten referred to as "Debt"), if such Debt is secured by a mortgage, pledge, security interest or lien (any mortgage, pledge, security interest or lien being hereinafter in this Article Ten referred to as a mortgage or mortgages) upon any Timberlands or any Principal bfanufacturing Facility now owned or hereafter acquired, without in any such case effectively providing, concurrently with the issuance, assumption or guarantee of such Debt, that the Securities (together with, if the Company shall so determine, any other indebtedness of or guaranteed by the Company or such Subsidiary ranking equally with the Securities then outstanding and existing or thereafter created) shall be secured equally and ratably with (or prior to) such Debt; provided, however, that the foregoing restriction shall not apply to:
(1) mortgages on any property acquired, constructed or improved by the Company or any Subsidiary after the date of this Indenture which are created or assumed contemporaneously with, or within one hundred and eighty days after, such acquisition (or in the case of property constructed or improved, after the completion and commencement of commercial operation of such property, whichever is later) to secure or provide for the payment of any part of the purchase price of such property or the cost of such construction or improvement, or mortgages on any property existing at the time of acquisition thereof; provided that in the case of any such construction or improvement the mortgage shall not apply to any property theretofore owned by the Company or any Subsidiary, other than any theretofore
unimproved real property on which the property so constructed, or the improvement, is located;
(2) mortgages on any property acquired from a corporation which is merged with or into the Company or a Subsidiary or mortgages outstanding at the time any corporation becomes a Subsidiary;
(3) mortgages in favor of the Company or any Subsidiary; and
(4) any extension, renewal or replacement (or successive extensions, renewals or replacements) in whole or in part, of any mortgage referred to in the foregoing clauses (1) to (3), inclusive; provided, however, that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement shall be limited to all or a part of the property which secured the mortgage so extended, renewed or replaced (plus improvements on such property).
(b) Notwithstanding the provisions of subsection (a) of this Section 10.7, the Company or any Subsidiary may issue, assume or guarantee secured Debt, which would otherwise be subject to the foregoing restrictions, in an aggregate amount which together with all other such Debt and all Attributable Debt in respect of Sale and Lease-Back Transactions (as defined in Section 10.8) of the Company and its Subsidiaries existing at such time (other than Sale and Leaseback Transactions the proceeds of which have been applied in accordance with clause (b) of Section 1O.8), does not at the time exceed 10% of the net tangible assets of the Company and its consolidated Subsidiaries (as defined in subsection (c) below), as shown on the audited consolidated balance sheet contained in the latest annual report to shareholders of the Company.
(c) For the purpose of this Section 10.7, the term "net tangible assets of the Company and its consolidated Subsidiaries" shall mean the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities, excluding current maturities of long-term debt, commercial paper and other short-term indebtedness, and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense (to the extent included in such aggregate amount of assets) and other like intangibles, all as set
forth on the most recent consolidated balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles.
(d) For the purposes of this Article X, the following types of transactions, among others, shall not be deemed to create Debt secured by a mortgage:
(1) the sale, mortgage or other transfer of timber in connection with an arrangement under which the Company or a Subsidiary is obligated to cut such timber or a portion thereof in order to provide the transferee with a specified amount of money however determined; and
(2) the mortgage of any property of the Company or any Subsidiary in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States of America or any State thereof, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of refinancing all or any part of the purchase price or the cost of constructing or improving the property subject to such mortgages.
SECTION 10.8 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, nor will it permit any Subsidiary to, enter into any
arrangement with any person providing for the leasing to the Company or a
Subsidiary of any Timberlands or any Principal Manufacturing Facility (except
for temporary leases for a term of not more than three years), which property
has been owned and, in the case of any such Facility, has been placed in
commercial operation more than one hundred and eighty days by the Company or
such Subsidiary and has been or is to be sold or transferred by the Company or
such Subsidiary to such person (herein referred to as "Sale and Lease-Back
Transactions"), unless either (a) the Company or such Subsidiary would be
entitled to incur Debt secured by a mortgage on the property to be leased in an
amount equal to the Attributable Debt with respect to such Sale and Lease-Back
Transactions without equally and ratably securing the Securities pursuant to
Section 10.7 or (b) the Company shall, and in any such case the Company
covenants that it will, apply an amount equal to the fair value (as determined
by the Board of Directors) of the property so leased to the retirement,
within one hundred and eighty days of the effective date of any such Sale and Lease-Back Transactions, of Securities or of Funded Debt of the Company which ranks on a parity with the Securities.
SECTION 10.9 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officers Certificate stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture, and if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
SECTION 10.10 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1O.7 to 10.8, inclusive, with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
SECTION 10.11 DEFEASANCE OF CERTAIN OBLIGATIONS.
If this Section 10.11 is specified, as contemplated by Section 3.1, to be applicable to Securities of any series, the Company may omit to comply with any term, provision or condition set forth in Section 10.7 or Section 10.8 and any such omission with respect to Section 10.7 or Section 10.8 shall not be an Event of Default, in each case with respect to the Securities of that series, provided that the following conditions have been satisfied:
(1) with reference to this Section 10.11, the Company has deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 6.9) irrevocably (but subject to the provisions of Section 4.2 and the last paragraph of
Section 10.3) as trust funds in trust, specifically pledged as security for and dedicated solely to the benefit of the Holders of the Securities of that series, (A) lawful money of the United States in an amount, or (B) U.S. Government Obligations which through the payment of interest and principal in respect thereof in accordance with their terms will provide not later than the opening of business on the due dates of any payment referred to in clause (i) or (ii) of this subparagraph (1) lawful money of the United States in an amount, or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge (i) the principal of (and premium, if any) and each installment of principal (and premium, if any) and interest on the Outstanding Securities of that series on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable to Securities of such series on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities;
(2) such deposit shall not cause the Trustee with respect to the
Securities of that series to have a conflicting interest as defined in
Section 6.3 and for purposes of the Trust Indenture Act with respect to
the Securities of any Series;
(3) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of notice or
lapse of time, or both, wouid become an Event of Default with respect to
the Securities of that series shall have occurred and be continuing on the
date of such deposit and no Event of Default under Section 5.1(6) or
Section 5.1(7) or event which with the giving of notice or lapse of time,
or both, would become an Event of Default under Section 5.1(6) or Section
5.1(7) shall have occurred and be continuing on the 91st day after such
date;
(5) the Company has delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series
will not recognize income gain or loss for federal income tax purposes as a result of such deposit and defeasance of certain obligations and will be subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred;
(6) if the Securities of that series are then listed on any foreign or domestic securities exchange, the Company has delivered to the Trustee an Opinion of Counsel to the effect that such deposit and defeasance will not cause such Securities to be delisted; and
(7) the Company has delivered to the Trustee an Officers Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the defeasance contemplated in this
Section have been complied with and an Opinion of Counsel to the effect
that either (i) as a result of such deposit and the related exercise of
the Companys option under this Section 10.11 registration is not required
under the Investment Company Act of 1940, as amended, by the Company, the
trust funds representing such deposit or the Trustee or (ii) all necessary
registrations under said Act have been effected.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) in accordance with this Article.
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by an Officers Certificate. In the case of any redemption, at the election of the Company of less than all the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities (i) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an election of the Company which is subject to a condition specified in the terms of such Securities, the Company shall furnish the Trustee with an Officers Certificate evidencing compliance with such restriction or condition.
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection, for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Registered Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series. If so specified in the Securities of a series, partial redemptions must be in an amount not less than $l,OOO,OOO principal amount of Securities.
If any Security selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected, the converted portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection. In any case where more than one Security is registered in the same name, the Trustee in its discretion may treat the aggregate principal amount so registered as if it were represented by one Security.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.4 NOTICE OF REDEMPTlON
Notice of redemption shall be given in the manner provided in Section 1.6 to the Holders of Securities to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed, and a statement to the effect that on or after the Redemption Date upon surrender of such Security a new Security in the principal amount equal to the unredeemed portion will he issued;
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if any maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price;
(6) and that the redemption is for a sinking fund, if such is the case;
(7) if applicable, the conversion price, the date on which the right to convert the Securities to be redeemed will terminate and the place or places where such Securities may be surrendered for conversion.
A notice of redemption published as contemplated by Section 1.6 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Companys request, by the Trustee in the name and at the expense of the Company.
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.6 SECURITLES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall on the Redemption Date become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed except to the extent provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price together with accnred interest to the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an offke or agency located outside the United States (except as otherwise provided in Section 10.2) and, unless otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of coupons for such interest; and provided, further, that, unless otherwise specified as contemplated by Section 3.1, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 10.2) and unless otheNvise specified as contemplated by Section 3.1
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 11.7 SECURITIES REDEEMED lN PART.
Any Registered Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instmment of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the same series and of like tenor of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any part
of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities, as provided for
by the terms of such series; provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 12.2 and will
also deliver to the Trustee any Securities to be so delivered. Not less than 45 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
If Securities of a series are issuable as Bearer Securities, a meeting of Holders of Securities of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 13.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 13.1, to be held at such time and at such place in the Borough of Manhattan, The City of New York, or in London as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.6, not less than 21 nor more than 180 days prior to the date fixed for the meeting (or. in the case of a meeting of Holders with respect to Securities of a series all or part of which are represented by a Book-Entry Security, not less than 30 nor more than 40 days).
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 13.1, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within
21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the piace in the Borough of Manhattan, The City of New York or in London for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section.
SECTION 13.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
Upon the calling of a meeting of Holders with respect to the Securities of a series all or part of which are represented by a Book-Entry Security, a record date shall be established for determining Holders of Outstanding Securities of such series entitled to vote at such meeting, which record date shall be the close of business on the day the notice of the meeting of Holders is given in accordance with Section 13.2. The Holders on such record date, and their designated proxies, and only such Persons, shall be entitled to vote at any meeting of Holders. To be entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one or more Securities or (b) be a Person appointed by an instrument in writing as proxy by a Holder of one or more Securities; provided, however, that in the case of any meeting of Holders with respect to the Securities of a series all or part of which are represented by a Book-Entry Security, only Holders, or their designated proxies, of record on the record date established pursuant to Section 13.3 hereof shall be entitled to vote at such meeting. The only Persons who shall be entitled to be present or to speak at any meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 13.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less than 66-2/3% in principal amount of the Outstanding Securities of a series, the Persons entitled to vote 66-2/3% in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less
than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be funher adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 13.2(a), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the outstanding Securities of such series which shall constitute a quorum. Notwithstanding the foregoing, no meeting of Holders with respect to Securities of any Series, which is represented in whole or in part by a Book-Entry Security, shall be adjourned to a date more than 90 days after the record date for such meeting unless the Trustee shall send out a new notice of meeting and establish, in accordance with Section 13.3, a new record date for Holders entitled to vote at such meeting.
Except as limited by the proviso to Section 9.2, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 9.2, any resolution with respect to any consent or waiver which this Indenture expressly provides may be given by the Holders of not less than 66-2/3% in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the afftnnativevote of the Holders of 66-2/3% in principal amount of the Outstanding Securities of that series; and provided, further, that, except as limited by the proviso to Section 9.2, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the afftrmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.
SECTION 13.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Tnrstee
may make such reasonable regulations as it may deem advisable for any meeting
of Hoiders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such regulations,
the holding of Securities shall be proved in the manner specified in Section
1.4 and the appointment of any proxy shall be proved in the manner specified in
Section 1.4 or by having the signature of the person executing the proxy
witnessed or guaranteed by any trust company, bank or banker authorized by
Section 1.1 to certify to the holding of Rearer Securities. Such regulations
may provide that written instlxments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 1.4 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 13.2(b), in which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chainnan of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 13.2 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
SECTION 13.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, tit least in duplicate, cf the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 13.2 and, if applicable, Section 13.4. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be presened by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Holders thereof, as required by any provision of this Indenture or such Securities, shall be made in accordance with such provision and this Anicle.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of such Securities at the option of the Holders thereof shall relate, in the case of any Registered Security submitted for redemption
only in part, to the portion of the principal amount of such Registered Security which has been so submitted for redemption.
SECTION 14.2 REDEMPTION AT OPTION OF HOLDERS UPON A CHANGE IN CONTROL OF THE COMPANY.
(a) The provisions of this Article XIV shall apply only to Securities of any series, or particular Securities within a series, for which the terms of such Securities, established pursuant to Section 3.1 of this Indenture, specify that this Article Fourteen shall apply thereto.
(b) Each Security or any portion of a Registered Security submitted for redemption at the option of the Holders thereof shall be redeemed by the Company on or after the Exchange Date in the case of Securities of any series issuable as Bearer Securities or at any time in the case of all other Securities under the conditions and at the Redemption Price for redemption at the option of Holders upon a Change in Control of the Company specified in the forms of Securities set forth in Exhibits A through D. On or after the Exchange Date in the case of Securities of any Series issuabie as Bearer Securities or at any time in the case of all other Securities, upon the deposit of any Security with a Paying Agent together with a duly signed and completed notice of Redemption at Holders option upon a Change in Control of the Company, all in accordance with the provisions contained in the forms of Securities set forth in Exhibits A through D, the Holder of such Security shall be entitled to receive from such Paying Agent a nontransferable receipt of deposit evidencing such deposit.
SECTION 14.3 NOTICE OF CHANGE IN CONTROL.
Notice of any Change in Control shall be given by the Company on or before the tenth day after such Change in Control to each Holder of Securities in accordance with Section 1.6, and by written notice to the Trustee on or before the ninth day after such Change in Control, unless the Continuing Directors have approved such Change in Control, or the Company gives or shall have given, if permitted to do so by the terms of the Securities of a series (whether before or after such Change in Control), notice of the redemption at its option of all of the Securities of such series, in either case, on or before such ninth day.
The notice as to Change in Control shall state:
(1) the event constituting the Change in Control;
(2) the Redemption Date for redemptions pursuant to Section 14.1, which shall be 35 days after the date of such Notice;
(3) the Redemption Price;
(4) the date which is the last day of the Exercise Period;
(5) if any part of the Exercise Period is on or after the Exchange Date, the place or places where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto maturing after the Redemprion Date, are IO be sunendered for payment of the Redemption Price; and
(6) that exercise of the option to elect redemption is irrevocable.
SECTION 14.4 DEPOSIT OF REDEMPTION PRICE.
On a Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent in immediately available firnds (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount of money sufficient to pay the Redemption Price of all of the Securities which are to be redeemed on that date.
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the Securities of any series which are convertible into shares of Common Stock of the Company, and the issuance of such shares of Common Stock upon the conversion of such Securities, except as otherwise specified as contemplated by Section 3.1 for the Securities of such series. The terms and provisions applicable to the conversion of Securities of
any series into securities of the Company (other than Common Stock) shall, if applicable, be set forth in an Officers Certificate or established in one or more indentures supplemental hereto, prior to the issuance of Securities of such series in accordance with Section 3.1.
SECTlON 15.2 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise a conversion privilege, the Holder of a Security of a series with such a privilege shall surrender such Security to the Company at the office or agency maintained for that purpose pursuant to Section 10.2, accompanied by written notice to the Company that the Holder elects to convert such Security or a specified portion thereof. Such notice shall also state, if different from the name and address of such Holder, the name or names (with address) in which the certificate or cenificates for shares of Common Stock which shall be issuable on such conversion shall be issued. Securities surrendered for conversion shall (if so required by the Company or the Trustee) be duly endorsed by or accompanied by instruments of transfer in forms satisfactory to the Company and the Trustee duly executed by the registered Holder or its attorney duly authorized in writing; and Securities so surrendered for conversion during the period from the close of business on any Regular Record Date to the opening of business on the next succeediny Interest Payment Date (excluding Securities or portions thereof called for redemption during such period) shall also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of such Security then being converted, and such interest shall be payable to such registered Holder nowithstandingthe conversion of such Security, subject to the provisions of Section 3.7 relating to the payment of Defaulted Interest by the Company. As promptly as practicable after the receipt of such notice and of any payment required pursuant to a Board Resolution and, subject to Section 3.3, set forth, or determined in the manner provided, in an Officers Ceritificate or established in one or more indentures supplemental hereto setting forth the terms of such series of Security, and the surrender of such Security in accordance with such reasonable regulations as the Company may prescribe, the Company shall issue and shall deliver, at the offtce or agency at which such Security is sunendered, to such Holder or on its written order, a certificate or certificates for the number of full shares of Common Stock issuable upon the conversion of such Security (or specified portion thereof); in accordance with the provisions of such Board Resolution, Officers Certificate or supplemental indenture, and cash as provided therein in respect of any fractional share of such Common Stock otherwise issuable upon such conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which such notice and such payment, if required, shall have been received in proper order for conversion by the Company and such Security shall have been surrendered as aforesaid (unless such Holder shall have so surrendered such Security and shall have instructed the Company to effect the conversion on a particular date following such surrender and such Holder shall be entitied to convert such Security on such date, in which case such conversion shall be deemed to be effected immediately prior to the close of business on such date) and at such time the rights of the Holder of such Security as such Security Holder shall cease and the person or persons in whose name or names any certificate or certificates for shares of Common Stock of the Company shall be issuable upon such conversion shall be deemed to have become the Holder or Holders of record of the shares represented thereby. Except as set forth above and subject to the final paragraph of Section 3.7, no payment or adjustment shall be made upon any conversion on account of any interest accrued on the Securities surrendered for conversion or on account of any dividends on the Common Stock of the Company issued upon such conversion.
In the case of any Security which is converted in part only, upon such conversion the Company shall execute and the Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Company, a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unconvened portion of such Security.
SECTION 15.3 NO FRACTIONAL SHARES.
No fractional share of Common Stock of the Company shall be issued upon conversions of Securities of any series. If more than one Security shall be surrendered for conversion at one time by the same Holder, the number of full shares which shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Securities (or specified portions thereof to the extent permitted hereby) so sunendered. If, except for the provisions of this Section 15.3, any Holder of a Security or Securities would be entitled to a fractional share of Common Stock of the Company upon the conversion of such Security or Securities, or specified portions thereof, the Company shall pay to such Holder an amount in cash equal to the current market value of such fractional share computed, (i) if such Common Stock is listed or admitted to unlisted trading privileges on a national securities exchange, on the basis of the last reported sale price regular way on such exchange on the last trading day prior to the date of conversion upon which such a sale shall have been effected, or (ii) if such Common Stock is not at the time so listed
or admitted to unlisted trading privileges on a national securities exchange, on the basis of the average of the bid and asked prices of such Common Stock in the over-the-counter market, on the last trading day prior to the date of conversion, as reported by the National Quotation Bureau, Incorporated or similar organization if the National Quotation Bureau, Incorporated is no longer reportiny such information, or if not so available, the fair market price as determined by the Board of Directors. For purposes of this Section, "trading day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday other than any day on which the Common Stock is not traded on the New York Stock Exchange, or if the Common Stock is not traded on the sew York Stock Exchange, on the principal exchange or market on which the Common Stock is traded or quoted.
SECTION 15.4 ADJUSTMENT OF CONVERSION PRICE.
The conversion price of Securities of any series that is convertible into Common Stock of the Company shall be adjusted for any stock dividends, stock splits, reclassification, combinations or similar transactions in accordance with the terms of the supplemental indenture or Board Resolutions setting forth the terms of the Securities of such series.
Whenever the conversion price is adjusted, the Company shall compute the adjusted conversion price in accordance with terms of the applicable Board Resolution or supplemental indenture and shall prepare an Officers' Certificate setting forth the adjusted conversion price and showing in reasonable detail the facts upon which such adjustment is based, and such certificate shall forthwith be filed at each office or agency maintained for the purpose of conversion of Securities pursuant to Section 10.2 and, if different, with the Trustee. The Company shall forthwith cause a notice setting forth the adjusted conversion price to be mailed, first class postaye prepaid, to each Holder of Securities of such series at its address appearing on the Security Resister and to any conversion agent other than the Trustee.
SECTION 15.5 NOTICE OF CERTAIN CORPORATE ACTIONS.
In case:
(a) the Company shall declare a dividend (or any other distribution) on its Common Stock payable othen;vise than in cash out of its retained earnings (other than a dividend for which approval of any shareholders of the Company is required); or
(b) the Company shall authorize the granting to the holders of its Common Stock of rights, options or warrants to subscribe for or purchase any shares of capital stock of any class or of any other rights (other than any such grant for which approval of any shareholders of the Company is required); or
(c) of any reclassification of the Common Stock of the Company (other than a subdivision or combination of its outstanding shares of Common Stock, or of any consolidation, merger or share exchange to which the Company is a party and for which approval of any shareholders of the Company is required), or of the sale of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed with the Trustee, and shall cause to be mailed to all Holders at their last addresses as they shall appear in the Securities Register, at least 20 days (or 10 days in any case specified in clause (a) or (b) above) prior to the applicable record date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such dividend, distribution, rights, options or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, rights, options or warrants are to be determined, or (ii) the date on which such reclassification, consolidation, merger, share exchange, sale, dissolution, liquidation or winding up is expected to become effective, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, share exchange, sale, dissolution, liquidation or winding up. If at any time the Trustee shall not be the conversion agent, a copy of such notice shall also forthwith be filed by the Company with the Trustee.
SECTION 15.6 RESERVATION OF SHARES OF COMMON STOCK.
The Company shall at all times reseme and keep available, free from preemptive rights, out of its authorized but unissued Common Stock or treasury shares, for the purpose of effecting the conversion of Securities, the full number of shares of Common Stock of the Company then issuable upon the conversion of all outstanding Securities of any series that has conversion rights.
SECTION 15.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION.
The Company will pay any and all taxes that may be payable in respect of the issue or delivery of shares of its Common Stock on conversion of Securities pursuant hereto. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery of shares of its Common Stock in a name other than that of the Holder of the Security or Securities to be converted, and no such issue or delivery shall be made unless and until the person requesting such issue has paid to the Company the amount of any such tax, or has established, to the satisfaction of the Company, that such tax has been paid.
SECTION 15.8 NONASSESSABILITY.
The Company covenants that all shares of its Common Stock which may be issued upon conversion of Securities will upon issue in accordance with the terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 15.9 EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION PRIVILEGE.
In case of any consolidation of the Company with, or merger of the Company into or with any other Person, or in case of any sale of all or substantially all of the assets of the Company, the Company or the Person formed by such consolidation or the Person into which the Company shall have been merged or the Person which shall have acquired such assets, as the case may be, shall execute and deliver to the Trustee a supplemental indenture providing that the Holder of each Security then outstanding of any series that is convertible into Common Stock of the Company shall have the right, which right shall be the exclusive conversion right thereafter available to said Holder (until the expiration of the conversion right of such Security), to convert such Security into the kind and amount of shares of stock or other securities or property (including cash) receivable upon such consolidation, merger or sale by a holder of the number of shares of Common Stock of the Company into which such Security might have been converted immediately prior to such consolidation, merger or sale, subject to compliance with the other provisions of this Indenture, such Security and such supplemental indenture. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for in such Security. The above provisions of this Section shall similarly apply to successive consolidations, mergers or sales. It is expressly agreed and understood that anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger, consolidation or sale, holders
of outstanding shares of Common Stock of the Company do not receive shares of
common stock of the surviving corporation but receive other securities, cash or
other property or any combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into common stock of the
surviving corporation or the corporation which shall have acquired such assets,
but rather, shall have the right upon such conversion to receive the other
securities, cash or other property receivable by a holder of the number of
shares of Common Stock of the Company into which the Securities held by such
holder might have been converted immediately prior to such consolidation,
merger or sale, all as more fully provided in the first sentence of this
Section 15.9. Anything in this Section 15.9 to the contrary notwithstanding,
the provisions of this Section 15.9 shall not apply to a merger or consolida-
tion of another corporation with or into the Company pursuant to which both of
the following conditions are applicable: (i) the Company is the surviving
corporation and (ii) the outstanding shares of Common Stock of the Company are
not changed or converted into any other securities or property (including cash)
or changed in number or character or reclassified pursuant to the terms of such
merger or consolidation.
As evidence of the kind and amount of shares of stock or other securities or property (including cash) into which Securities may properly be convertible after any such consolidation, merger or sale, or as to the appropriate adjustments of the conversion prices applicable with respect thereto, the Trustee shall be furnished with and may accept the certificate or opinion of an independent certified public accountant with respect thereto; and, in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely thereon, and shall not be responsible or accountable to any Holder of Securities for any provision in conformity therewith or approved by such independent certified accountant which may be contained in said supplemental indenture.
SECTION 15.10 DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any conversion agent shall at any time be under any duty or responsibility to any Holder of Securities of any series that is convertible into Common Stock of the Company to determine whether any facts exist which may require any adjustment of the conversion price, or with respect to the nature or extent of any such adjustment when made, or with respect to the method employed, whether herein or in any supplemental indenture, any resolutions of the Board of Directors or written instrument executed by one or more officers of the Company provided to be employed in making the same. Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock of the Company, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Securities and neither the Trustee nor any conversion agent makes any representation with respect thereto. Neither the Trustee nor any conversion agent shall be responsible for any failure of the Company to issue, transfer or deliver any shares of its Common Stock or stock certificates or other securities or property upon the surrender of any Security for the purpose of conversion or to comply with any of the covenants of the Company contained in this Article Fifteen or in the applicable supplemental indenture, resolutions of the Board of Directors or written instrument executed by one or more duly authorized officers of the Company.
SECTION 15.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by the Company or on its behalf with the Trustee or any other paying agent for the purpose of paying the principal of, and premium, if any, and interest, if any, on any of the Securities (including funds deposited for the sinking fund referred to in Panicle III hereof) and which shall not be required for such purposes because of the conversion of such Securities as provided in this Anicle XV shall after such conversion be repaid to the Company by the Trustee upon the Company's written request.
This instrument may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.
The Bank of New York, as Trustee
By: /s/ Mary La Gumina
-------------------------------
Title: MARY LA GUMINA
ASSISTANT VICE PRESIDENT
|
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By: /s/ E. William Boehmler
------------------------------------
Name: E. William Boehmler
Title: Vice President and Treasurer
Attest:
/s/ James W. Guedry
-------------------------------------
Secretary
|
The Bank of New York,
as Trustee
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the ____ day of __________, 1999, before me personally came ___________, to me known, who, being by me duly sworn, did depose and say that he is __________ of International Paper Company, one of the corporations described in and which executed the foregoing instrument and that he signed his name thereto by the authority of the Board of Directors.
________________________________
Notary Public, State of New York
Qualified in __________________
________________________________
Commission Expires_____________
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
|
On the 12th day of April, 1999, before me personally came Mary LaGamina, to me known, who, being by me duly sworn, did depose and say that she is Assistant Vice President of The Bank of New York one of the corporations described in and which executed the foregoing instrument and that she signed her name thereto by the authority of the Board of Directors.
/s/ Ann L. Link
---------------------------------
Notary Public, State of New York
Qualified in ____________________
ANN L. LINK
Notary Public, State of New York
No. C1L15046420
Qualified in Kings County
Commission Expires Aug. 21, 1999
---------------------------------
Commission Expires ______________
|
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the 12th day of April, 1999, before me personally came E. William Boehmler, to me known, who, being by me duly sworn, did depose and say that he is Vice President and Treasurer of International Paper Company, one of the corporations described in and which executed the foregoing instrument and that he signed his name thereto by the authority of the Board of Directors.
/s/ Ellen McLaughlin
---------------------------------
Notary Public, State of New York
Qualified in ____________________
ELLEN McLAUGHLIN
Notary Public, State of New York
No. 01MC5069630
Qualified in Westchester County
Commission Expires November 25, 2000
---------------------------------
Commission Expires ______________
|
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
|
On the 12th day of April, 1999, before me personally came Mary LaGamina, to me known, who, being by me duly sworn, did depose and say that she is Assistant Vice President of The Bank of New York, one of the corporations described in and which executed the foregoing instrument and that she signed her name thereto by the authority of the Board of Directors.
EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT
AN ORIGINAL, ISSUE DISCOLNT SECURITY]
[FORM OF FACE]
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
CUSIP NO.__________
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the "Company", which term includes
any successor Person under the Indenture referred to on the reverse hereof),
for value received, hereby promises to pay to ___________ or registered
assigns, the principal sum of __________ [United States] Dollars on _________,
and to pay interest thereon from ________, 19__ or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
[semi-annually in arrears on ________ and ________ in each year] [annually in
arrears on _______ in each year], commencing __________, 19__, at the rate of
____% per annum, until the principal hereof is paid or made available for
payment [If applicable, insert--and (to the extent that the payment of such
interest shall be legally enforceable) at the rate of __% per annum on any
overdue principal [and premium] and on any overdue installment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture. be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest. which shall be the _______ [or ________] (whether or not a Business
Day) [, as the case mav be.] next preceding such Interest Payment Date. Except
as otherwise provided in the Indenture, any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture. Payment of the principal of [(and
premium, if any)] and
interest on this Security will be made at [the office or agency of the Company maintained for that purpose in __________, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts] [the option of the Holder (a) at [the Corporate Trust Office of the Trustee] or such other office or agency of the Company as may be designated by it for such purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts or (b) subject to any laws or regulations appiicable thereto and to the right of the Company (limited as provided in the Indenture) to rescind the designation of any such Paying Agent, at the [main] offices of ___________ in _________, _________ in _________, _________ in _________, _________ in _________ and _________ in _________, or at such other offices or agencies as the Company may designate, by United States dollar check drawn on, or transfer to a United States dollar account maintained by the payee with, a bank in The City of New York] [If applicable, insert--, provided, however, that at the option of the Company payment of interest may be made by [United States dollar] check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register] [or by wire transfer to an account maintained by such Person with a bank in The City of Xew York (so lony as the Company has received proper transfer instructions in writing)].
[If Securities of the series are to be offered to United States Aliens, insert-- The Company will pay to the Holder of this Security who is a United States Alien (as defined below) such additional amounts as may be necessary in order that every net payment of the principal of [(and premium, if any)] and interest on this Security, after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed by the United States (as defined below) or any political subdivision or taxing authority, thereof or therein upon or as a result of such payment, will not be less than the amount provided for in this Security to be then due and payable; provided, however that the foregoing obligation to pay additional amounts will not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary or member of such Holder, if such Holder is an estate, a trust or a partnership) and the United States, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary or member) being or having been a
citizen or resident or treated as a resident thereof, or being or having been engaged in trade or business or present therein, or having or having had a permanent establishment therein, or (ii) such Holders' present or former status as a personal holding company, a foreign personal holding company, a controlled foreign corporation for United States tax purposes or a corporation which accumulates earnings to avoid Lnited States federal income tax;
(b) any tax, assessment or other Qovernmental charge imposed on interest received by a Person holding, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote;
(c) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of this Security, if compliance is required by the statute or by regulation of the United States Treasury Department as a precondition to exemption from such tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of principal of
[(and premium, if any)] or interest on this Security; or
(f) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of this Security for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of principal of
[(and premium, if any)] or interest on this Security to any United States Alien
who is a fiduciary or partnership or other than the sole beneficial owner of
any such payment to the extent that a beneficiary or settler with respect to
such fiduciary, a member of such a partnership or the beneficial owner would
not have been entitled to the additional amounts had such beneficiary, settlor,
member or beneficial owner been
the Holder of this Security. The term "United States Alien" means any Person who, for United States federal income tax purposes. is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust or a foreign partnership one or more of the members of which is, for United States federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust, and the term "United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authenticaticn hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticatiny Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:_________________
INTERNATIONAL PAPER COMPANY
By:_______________________________
Name:
Title:
Attest:
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of April 12, 1999 (herein called the Indenture), between the Company and The Bank of New York, as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities [If the Securities of
the series are also issuable as Bearer Securities, insert--and any coupons
appertaining thereto] and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
[U.S.]$______]. [If the Securities of the series are also issuable as Bearer
Securities, insert--The Securities of this series are issuable as Bearer
Securities [, with interest coupons attached,] in the denomination of
U.S.$_________, and as Registered Securities, without coupons, in denominations
of U.S.$_________ and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Bearer
Securities and Registered Securities of this series are exchangeabie for a like
aggregate principal amount of Registered Securities of this series and of like
tenor of any authorized denominations, as requested by the Hoidtr surrendering
the same, upon surrender of the Security or Securities to be exchanged at any
office or agency described below where Registered Securities of this series may
be presented for registration of transfer. Registered Securities may not be
exchanged for Bearer Securities.]
[If applicable, insert--The Securities of this series are subject to
redemption [(1)] [If applicable, insert--on __________ any year commencing with
the year ____ and ending with the year __ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount.
[and](2)] [If applicable, insert--at any time [on or after __________ 19__], as
a whole or in part, at the election of the Company, at the followiny Redemption
Prices (expressed as percentages of the principal amount): If redeemed [on or
before __________, __%, and if redeemed] during the 12-month period beginning
___________ of the years indicated.
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
|
and thereafter at a Redemption Price equal to __% of the pr incipal amount,]
[If applicable, insert--[and (____)] under the circumstances described in the
next [two] succeeding paragraph[s] at a Redemption Price equal to 100% of the
principal
amount,] together in the case of any such redemption [If applicable, insert--(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that instaIlments of interest on this Security whose Stated maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this series are subject to redemption (1) on _________ in any year commencing with the year _________ and ending with the year _________ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after _________ 19__, as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning _______________ of the years indicated.
Redemption Price for
Redemption Price Redemption Other-
for Redemption wise Than Through
Through Operation Operation of the
Year of the Sinking Fund Sinking Fund
---- ------------------- ------------
|
and thereafter at a Redemption Price equal to __% of the principal amount. [If applicable, insert--and (3) under the circumstances described in the next [two] succeeding paragraph[s] at a Redemption Price equal to 100% of the principal amount,] together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.] [Notwithstanding the foregoing, the Company may not, prior to
_____________ redeem any Securities of this series as contemplated by Clause
[(2) I above as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than __% per annum.]
Subject to and upon compliance with the provisions of the Indenture (unless previously redeemed), thisSecurity, if submitted for redemption, is subject to redemption, at the option of the Holder, [If Securities of the series are issuable as Bearer Securities, insert--on or after the Exchange Date] upon any Change in Control of the Company (as defined in the Indenture) unless the Continuing Directors, as defined in the Indenture, shall have approved such Change in Control [If applicable, insert--or the Company shall have called the Securities for redemption at the applica- ble Redemption Price for redemption at the option of the Company, in either case] on or before the day which is ten days after such Change in Control [If applicable, insert--(whether or not such call occurs before or after such Change in Control)]. The Holder's option so to redeem is exercisable on or before the end of the Exercise Period specified in the notice of the Company relating to such Change in Control at a Redemption Price equal to 100% of the principal amount hereof plus accrued interest to the Redemption Date. For this Security to be submitted for such redemption, the Company must receive at the office of one of the Paying Agents, prior to the close of business on the last day of such Exercise Period, this Security [If Securities of the series are issuable as Bearer Securities, insert--together with all coupons maturing after the Redemption Date.] accompanied by written notice to the Company (which shall be substantially in the form of the [appropriate] form of notice hereon) that the Holder hereof instructs the Company to redeem this Security. [If Securities of the series are issuable as Bearer Securities, insert--The Holder of this Security may elect to submit for redemption by the Company such Security as a whole but not in part.] Such notice duly received shall be irrevocable.
[If Securities of the series are to be offered to United States Aliens, insert--The Securities of this series may be redeemed, as a whole but not in part, at the option of the Company, at a Redemption Price equal to 100% of their principal amount, together with interest accrued to the date fixed for redemption, if, as a result of any amendment to, or change in, the laws or regulations of the United States or any political subdivision or taxing authority thereof or therein affecting taxation, or any amendment to or change in an official interpretation or application of such laws or regulations, which amendment or change is effective on or after __________, 19__, the Company will become obligated to pay additional amounts (as described
on the face hereof) on the next succeeding Interest Payment Date and such obligation cannot be avoided by the use of reasonable measures available to the Company; provided, however, that (a) no such notice of redemption may be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such additional amounts were a payment in respect of the Securities of this series then due, and (b) at the time notice of such redemption is given, such obligation to pay such additional amounts remains in effect. Immediately prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee a certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred.]
[If the Securities of the series are also issuable as Bearer Securities and if applicable, insert--In addition, if the Company determines, based upon a written opinion of independznt counsel, that any payment made outside the United States by the Company, or any of its Paying Agents of the full amount of principal, [premium, if any.] or interest due with respect to any Bearer Security or coupon would, under any present or future laws or regulations of the United States, the subject to any certification, identification or other information reporting requirement of any kind, the effect of which requirement is the disclosure to the Company, any Paying Xgent or any governmental authority of the nationality, residence or identity of a beneficial owner of such Bearer Security or coupon who is a United States Alien (as defined on the face hereof) (other than such a requirement (a) which would not be applicable to a payment made by the Company or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian, nominee or other agent of the beneficial owner, or (b) which can be satisfied by the custodian, nominee or other agent certifying that the beneficial owner is a United States Alien, provided in each case referred to in clauses (a)(ii) and (b) _________ that payment by such custodian, nominee or other agent of such beneficial owner is not otherwise subject to any such requirement), the Company at its election will either (x) redeem the Securities of this series, as a whole but not in part, at a Redemption Price equal to 100% of their principal amount, together with interest accrued to the date fixed for redemption, or (y) if and so long as any such certification, identification or other information reporting requirement would be fully satisfied by payment of a backup withholding tax or similar charge, pay to the Holders of Bearer Securities who are
United States Aliens certain additional amounts specified in the Bearer
Securities of this series. The Company will make such determination and
election and notify the Trustee thereof as soon as practicable, and the Trustee
will promptly give notice of such determination in the manner provided below
(the "Determination Notice"), in each case stating the effective date of such
certification, identification or other information reporting requirement,
whether the Company will redeem the Securities or will pay to the Holders of
Bearer Securities who are United States Aliens the additional amounts specified
in the Bearer Securities of this series and (if applicable) the last date by
which the redemption of the Securities must take place. If the Company elects
to redeem the Securities, such redemption shall take place on such date, not
later than one year after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 75 days before such date,
unless shorter notice is acceptable to the Trustee. Notwithstanding the
foregoing, the Company will not so redeem the Securities if the Company, based
upon an opinion of independent counsel, subsequently determines, not less than
30 days prior to the date fixed for redemption, that subsequent payments would
not be subject to any such requirement, in which case the Company will notify
the Trustee, which will promptly give notice of that determination in the
manner provided below, and any earlier redemption notice will thereupon be
revoked and of no further effect. If the Company elects as provided in clause
(y) above to pay such additional amounts to the Holders of Bearer Securities
who are United States Aliens, and as long as the Company is obligated to pay
such additional amounts to such Holders, the Company may subsequently redeem
the Securities, at any time, as a whole but not in part, at a Redemption Price
equal to 100% of their principal amount, together with interest accrued to the
date fixed for redemption, but without reduction for applicable United States
withholding taxes.]
The sinking fund for this series provides for the redemption on ______ in
each year, beginning with the year ______ and ending with the year _____, of
[not less than] [U.S.]$_______ [("mandatory sinking fund") and not more than
[U.S.]$____] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the inverse
order in which they become due.]]
Notice of redemption will be given by mail to Holders of [If Securities of the series are also issuable as Bearer Securities, insert--Registered] Securities, not less
than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new [If Securities of the series are also issuable as Bearer Securities, insert-Registered] Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
[If the Security is convertible into Common Stock of the Company, insert-- Subject to the provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on or before [insert date] (except that, in case this Security or any portion hereof shall be called for redemption, such right shall terminate with respect to this Security or portion hereof, as the case may be, so called for redemption at the close of business on the date fixed for redemption as provided in the Indenture unless the Company defaults in making the payment due upon redemption), to convert the principal amount of this Security (or any portion hereof which is [insert minimum denomination] or an integral multiple thereof), into fully paid and non-assessable shares (calculated as to each conversion to the nearest l/lOOth of a share) of the Common Stock of the Company, as said shares shall be constituted at the date of conversion, at the conversion price of $_____ principal amount of Securities for each share of Common Stock, or at the adjusted conversion price in effect at the date of conversion determined as provided in the Indenture, upon surrender of this Security, together with the conversion notice hereon duly executed, to the Company at the designated office or agency of the Company in __________, accompanied (if so required by the Company) by instruments of transfer. in form satisfactory to the Company and to the Trustee, duly executed by the Holder or by its duly authorized attorney in writiny. Such surrender shall, if made during any period beginning at the close of business on a Regular Record Date and ending at the openiny of business on the Interest Payment Date next following such Regular Record Date (unless this Security or the portion being converted shall have been called for redemption on a Redemption Date during such period), also be accompanied by payment in funds acceptable to the Company of an amount equai to the interest payable on such Interest Payment Date on the principal amount of this Security then being converted. Subject to the aforesaid requirement of repayment and, in the case of a conversion after the Regular Record Date next preceding any Interest Payment Date and on or before such Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of record at such Regular Record Date to receive an installment of interest (with certain exceptions provided in the Indenture), no adjustment is to be made of conversion for interest accrued hereon
for dividends on shares of Common Stock issued on conversion. The Company is not required to issue fractional shares upon any such conversion. but shall make adjustment therefor in cash on the basis of the current market value of such fractional interest as provided in the Indenture. The conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture provides that in case of certain consolidations or mergers to which the Company is a party or the sale of substantially ail of the assets of the Company, the Indenture shall be amended, without the consent of any Holders of Securities, so that this Security, if then outstanding, will be convertible thereafter, during the period this Security shall be convertible as specified above, only into the kind and amount of securities, cash and other property receivable upon the consolidation, merger or sale by a holder of the number of shares of Common Stock into which this Security might have been converted immediately prior to such consolidation, merger or sale (assuming such holder of Common Stock failed to exercise any rights or election and received per share the kind and amount received per share by a plurality of nonelecting shares) [, assuming if such consolidation, merger or sale is prior to _______, 199_, that this Security was convertible at the time of such consolidation, merger or sale at the initial conversion price specified above as adjusted from ________, 199_, to such time pursuant to the Indenture]. In the event of conversion of this Security in part only, a new Security or Securities for the unconverted portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
[The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.]
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected [If Securities of the series are also issuable as Bearer Securities, insert--and any related coupons] under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66-2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of
such series [If Securities of the series are also issuable as Bearer Securities, insert-- and any related coupons], to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall have received from the Holders of a majority in principal amount of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of [(and premium, if any)] or interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of [(and premium, if any)] and interest [(including additional amounts. as described on the face hereof)] on this Security at the times, place[s] and rate. and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in [any place where the principal of [(and premium, if any)] and interest on this Security are payable] [The City of New York, or, subject to any laws or regulations applicable thereto and to the right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer agent, at the [main] offices of _______ in _______ and ______ in _______ or at such other offices or agencies as the Company may designate], duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new [if the Securities of the series are also issuable as Bearer Securities, insert--Registered] Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
[If the Securities of the series are not also issuable as Bearer Securities, insert--The Securities of this series are issuable only in registered form, without coupons, in denominations of $______ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
[If the Securities of the Series are also issuable as Bearer Securities, insert--The Indenture, the Securities and any coupons appertaining thereto shall be governed by and construed in accordance with the laws of the State of New York.]
All terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDERS OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the Company to redeem this Security in accordance with the terms of the Indenture referred to in this Security.
The instruction being given in exercise of the Holders option to require redemption of this Security to the extent provided in such Indenture upon a Change in Control of the Company.
Signature(s) must be guaranteed by a
commercial bank or tnrst company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered owner.
If only a portion of this Security is
submitted for redemption, please
indicate:
1. Principal Amount submitted for redemption:
U.S.$__________________
2. Amount and denomination of Registered Securities represent- ing principal amount of this Sec- urity not submitted for redemp- tion to be issued.
Amount: U.S.$____________
Denominations:
U.S.$____________________
(U.S.$5,OOO or an integral multi-
ple thereof)
Note: Exercise of the option to require redemption is irrevocable.
FORM OF CONVERSION NOTICE FOR CONVERSION INT0 SHARES OF COMMON STOCK
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S.$_________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below
designated, into shares of Common Stock of the Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon the conversion, together with any check
in payment for fractional shares and any Securities representing any
unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If this Notice
is being delivered on a date after the close of business on a Regular Record
Date and prior to the opening of business on the related lnterest Payment Date
(unless this Security or the portion thereof being converted has been called
for redemption on a Redemption Date within such period), this Notice is
accompanied by payment, in funds acceptable to the Company, of an amount equal
to the interest payable on such Interest Payment Date of the principal of this
Security to be converted. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
U.S.$_________ [INSERT MINIMUM
DENOMINATION], if Iess than all):
U.S.$_______
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be issued otherwise than to the registered holder
___________________________ Social Security or other
(NAME) Taxpayer Identification Number
___________________________________
___________________________
(ADDRESS)
___________________________
|
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTION 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS __% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, 19__ [,--AND] THE YIELD TO MATURITY IS __%[, THE METHOD USED TO DETERMINE THE YIELD IS ____________ AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF ___________, 19__ TO ____________, 19__ IS __% OF THE PRINCIPAL AMOUNT OF THIS SECURITY].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
CUSIP NO. _____________
International Paper Company, a corporation duly organized and existing under the laws of New York (herein called the "Company", which term includes any successor Person under the Indenture referred to on the reverse hereof), for value received, hereby promises to pay to _________, or registered assiyns, the principal sum of __________ [United States] Dollars on __________ [If the Securitv is interest-bearing, insert--, and to pay interest thereon from ________ 19 - or from the most recent Interest Payment Date to which interest has been paid or duly provided for, [semi-annually in arrears on _________ and in each year] [annualty in arrears on in each year], commencing ________, 19 - at the rate of __% per annum. until the principal hereof is paid or made available for payment [If applicable, insert--, and (to the extent that the payment of such interest shall be legally enforceable) at the rate of __% per annum on any overdue principal [and premium] and on any overdue installment of interest]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be the ________ [or (whether or not a Business Day) [, as the case may be,] next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such interest not so punctually paid or duly provided for wiil forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 1O days prior to such Special Record Date, or be paid at any time in any other lawfu1 manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture]. [If the Security is not to bear interest prior to Maturity, insert--The principal of this Security shall not bear interest except in the case of a default in payment of the principal upon acceleration, upon redemption or at Stated Maturity, and in such case. the overdue principal of this Security shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legally enforceable), which shall accrue from the date of such default in payment to the date payment of such principal has been made or duly provided for. Interest on any overdue principal shall be payable on demand. Any such interest on any overdue principal that is not so paid on demand shall bear interest at the rate of __% per annum (to the extent that the payment of such interest shall be legallyenforceable), which shall accrue from the date of such demand for payment to the date payment of such interest has been made or duly provided for, and such interest shall also be payable on demand.] Payment of the principal of [(and premium, if any)] and [If applicable, insert--any such] interest on this Security will be made at [the office or agency of the Company maintained for that purpose in ________, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts] [the option of the Holder (a) at [the Corporate Trust Office of the Trustee] or such other office or agency of the Company as may be designated by it for such purpose in The City of New York, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts or (b) subject to any laws or regulations applicable thereto and to the right of the Company (limited as provided in the Indenture) to rescind the designation of any such Paying Agent, at the [main] offices of _______ in _______, ________ in _______ ________ in _______, ________ in _______ and _______ in _______, or such other offices or agencies as the Company may designate, by United States dollar] check drawn on, or transfer to a United States dollar account maintained by the payee with, a bank in The City of New York] [if applicable, insert--; provided, however, that at the option of the Company payment of interest may be made by wnited States dollar] check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register]
[or by wire transfer to an account maintained by such Person with a bank in The
City of New York (so long as the Company has received proper transfer
instructions in writing)].
[If Securities of the series are to be offered to United States Aliens, insert-- The Company will pay to the Holder of this Security who is a United States Alien (as defined below) such additional amounts as may be necessary in order that [If the Security is interest-bearing, insert--every net payment of the principal of [(and premium, if any)] and interest on this Security] [If the Security is not to bear interest prior to Maturity, interest--(i) the net payment of principal of (and interest on overdue principal, if any, on) this Security and (ii) the net proceeds from the sale or exchange of this Security, including, in each case, amounts received in respect of original issue discount], after deduction or withholding for or on account of any present or future tax, assessment or other governmental charge imposed by the United States (as defined below) or any political subdivision or taxing authority thereof or therein upon or as a result of such payment [If the Security is not to bear interest prior to maturity, insert--or, as a result of such sale or exchange] will not be less than the amount provided for in this Security to be then due and payable [If the Security is not to bear interest prior to Maturity; insert--or, in the case of a sale or exchange, the amount of the net proceeds from the sale or exchange before any such tax, assessment or other yovemmental charge]; provided, however, that the foregoing obligation to pay additional amounts will not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary or member of such Holder. if such Holder is an estate. a trust or a partnership) and the United States, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary or member) being or having been a citizen or resident or treated as a resident thereof, or being or having been engaged in trade or business or present therein, or having or having had a permanent establishment therein, or (ii) such Holders present or former status as a personal holding company, a foreign personal holding company, a controlled foreign corporation for United States tax purposes or a corporation which accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the Security is interest-bearing, insert--on interest received by a Person holding, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote] [If the Security is not to bear interest prior to Maturity, insert--by reason of such Holders past or present status as the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote];
(c) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of this Security, if compliance is required by the statute or by regulation of the United States Treasury Department as a precondition to exemption from such tax, assessment or other yovemmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is payable otherwise than bv deduction or withholdiny from payments of [If the Security is interest-bearing, insert--principal of [(and premium, if any)] or interest on this Security] [If the Security is not to bear interest prior to maturity, insert--principal of (or interest on overdue principal, if any, on) this Security or from payments from the proceeds of a sale or exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of this Security for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of [If the Security is interest-bearing: insert--principal of [(and premium, if any)] or interest on this Security] [If the Security is not to bear interest prior to Maturity, insert--principal of (or interest on overdue principal, if any, on) this Security or of the proceeds of any sale or exchange of this Security] to any United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of any such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner would not have been entitled to the additional amounts had such beneficiary, settlor, member or beneficial owner been the Holder of this Security. The term "United States Alien" means any Person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust or a foreign partnership one or more of the members of which is, for United States federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust, and the term United States means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.]
Reference is hereby made to the funher provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:__________________
INTERNATIONAL PAPER COMPANY
By:________________________________
Attest: Name:
Title:
_________________________
|
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the Company (herein called the Securities), issued and to be issued in one or more series under
and thereafter at a Redemption Price equal to __% of the principal amount.] [If applicable, insert--[and (_______)] under the circumstances described in the next [two] succeeding paragraph[s] at a Redemption Price equal to [Insert formula for determining the amount]] [If the Security is interest-bearing, insert--, together in the case of any such redemption [If applicable, insert-(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holder of this Security, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture].
[If applicable, insert--The Securities of this series are subject to redemption (1) on _______ in any year commencing with the year _______ and ending with the year _______ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after ________, 19__], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below. If redeemed during the 12-month period beginning _______ of the years indicated,
Redemption Price for
Redemption Price Redemption Other-
for Redemption wise Than Through
Through Operation Operation of the
Year of the Sinking Fund Sinking Fund
---- ------------------- ------------
|
and thereafter at a Redemption Price equal to __% of the pr incipal amount. [If applicable, insert--and (3) under the circumstances described in the next [two] succeeding paragraph[s] at a Redemption Price equal to [Insert formula for determining the amount]] [If the Security is interest-bearing, insert--, together in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date; provided, however, that installments of interest on this Security whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Security, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture].]
[Notwithstanding the foregoing, the Company may not, prior to ______ redeem any
Securities of this series as contemplated by Clause [(2) above as a part of, or
in anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than __% per annum.]
Subject to and upon compliance with the provisions of the Indenture (unless previously redeemed), this Security, if submitted for redemption, is subject to redemption, at the option of the Holder, [If Securities of the series are also issuable as Bearer Securities, insert--on or after the Exchange Date] (upon any Change in Control of the Company (as defined in the fndenhire) unless the Continuing Direc- tors. as defined in the Indenture, shall have approved such Change in Control [if applicable, insert--or the Company shall have called the Securities for redemption at the applicable Redemption Price for redemption at the option of the Company, in either case] on or before the day which is ten days after such Change in Control [If applicable, insert--(whether or not such call occurs before or after such Change in Control)]. The Holder's option so to redeem is exercisable on or before the end of the Exercise Period specified in the notice of the Company relating to such Change in Control at a Redemption Price equal to 100% of the principal amount hereof plus accrued interest to the Redemption Date. For this Security to be submitted for such redemption. the Company must receive at the office of one of the Paying Agents, prior to the close of business on the last day of such Exercise Period, this Security [If Securities of the series are also issuable as Bearer Securities, insert-together with all coupons maturing after the Redemption Date.] accompanied by written notice to the Company (which shall be substantially in the form of the [appropriate] form of notice hereon) that the Holder hereof instructs the Company to redeem this Security. [If Securities of the series are also issuable as Bearer Securities, insert--The Holder of this Security may elect to submit for redemption by the Company such Security as a whole but not in part.] Such notice duly received shall be irrevocable.
[If Securities of the series are to be offered to United States Aliens, insert-- The Securities of this series may be redeemed, as a whole but not in part, at the option of the Company, determined as set forth in the preceding paragraph [If the Security interest-bearing, insert--, together with interest accrued to the date fixed for redemption,] if, as a result of any amendment to, or change in, the laws or regulations of the United States or any political subdivision or taxing authority thereof or therein
affecting taxation, or any amendment to or change in an official interpretation or application of such laws or regulations, which amendment or change is effective on or after _________, 19- the Company will become obligated to pay additional amounts (as described on the face hereof) [If the Security is interest-bearing insert--on the next succeeding Interest Payment Date] [If the Security is not to bear interest prior to Maturity, insert--at Maturity or upon the sale or exchange of any Security] and such obligation cannot be avoided by the use of reasonable measures available to the Company; provided, however, that (a) no such notice of redemption may be given earlier than 90 days prior to the earliest date on which the Company would be obliyated to pay such additional amounts were a payment in respect of the Securities of this series then due [If the Security is not to bear interest prior to Maturity, insert--or were a sale or exchange of a Security of this series then made], and (b) at the time notice of such redemption is given, such obligation to pay such additional amounts remains in effect. Immediately prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee a certificate stating that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred.]
[If the Securities of the series are also issuable as Bearer Securities and if applicable**, insert--In addition. if the Company determines. based upon a written opinion of independent counsel, that any payment made outside the United States by the Company or any of its Paying Agents of the full amount of principal [premium, if any,] or interest due with respect to any Bearer Security or coupon would. under any present or future laws or regulations of the United States, be subject to any certification, identification or other information reporting requirement of any kind, the effect of which requirement is the disclosure to the Company, any Paying Agent or any governmental authority of the nationality, residence or identity of a beneficial owner of such Bearer Security or coupon who is a United States Alien (as defined on the face hereof) (other than such a requirement (a) which would not be applicable to a payment made by the Company or any one of its Paying Agents (i) directly to the beneficial owner or (ii) to any custodian, nominee or other agent of the beneficial owner, or (b) which can be satisfied by the custodian, nominee or other agent certifying that the beneficial owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by such custodian, nominee or other agent of such beneficial owner is not otherwise subject to any such requirement), the Company at its election will either (x) redeem the Securities of this series, as a whole but not in part, at a Redemption Price determined as set forth in the next preceding paragraph, together with interest accrued to the date fixed for redemption, or (y) if and so long as any such certification, identification or other information reporting requirement would be fully satisfied by payment of a backup withholding tax or similar charge, pay to the Holders of Bearer Securities who are United States Aliens certain additional amounts specified in the Bearer Securities of this series. The Company will make such determination and election and notify the Trustee thereof as soon as practicable, and the Trustee with promptly give notice of such determination in the manner provided below (the "Determination Notice"), in each case statiny the effective date of such certification, identification or other information reporting requirement, whether the Company will redeem the Securities or will pay to the Holders of Bearer Securities who are United States Aliens the additional amounts specified in the Bearer Securities of this series and (if applicable) the last date by which the redemption of the Securities must take place. If the Company elects to redeem the Securities, such redemption shall take place on such date, not later than one year after publication of the Determination Notice, as the Company elects by notice to the Trustee at least 75 days before such date, unless sooner notice is acceptable to the Trustee. Notwithstanding the foregoing, the Company will not so redeem the Securities if the Company, based upon an opinion of independent counsel, subsequently determines, not less than 30 days prior to the date fixed for redemption, that subsequent payments would not be subject to any such requirement, in which case the Company will notify the Trustee, which will promptly give notice of that determination in the manner provided below, and any earlier redemption notice will thereupon be revoked and of no further effect. If the Company elects as provided in clause (y) above to pay such additional amounts to the Holders of Bearer Securities who are United States Aliens, and as long as the Company is obligated to pay such additional amounts to such Holders, the Company may subsequently redeem the Securities, at any time, as a whole but not in part, at a Redemption Price determined as set forth in the next preceding paragraph, together with interest accrued to the date fixed for redemption, but without reduction for applicable United States withholding taxes.]
[If applicable,*** insert--In addition, if the Company determines, based
upon a written opinion of independent counsel, that any payment made ourside
the United States by the Company or any of its Paying Agents of the full amount
due with respect to any Bearer Security would, under any present or future laws
or regu1ations of the United States, be subject to any certification,
identification or other reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security who is a United States Alien (as
defined on the face hereof) (other than such requirement (a) which would not be
applicable to a paymerIt made by the Company or any one or its Paying Agents
(i) directly to the beneficial owner or (ii) to any custodian, nominee or other
agent of the beneficial owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other asent of such beneficial
owner is not othenvise subject to any such requirement), the Company at its
election will either (x) permit any Holder of a Bearer Security to present such
Bearer Security for redemption within 90 days of notice of such redemption, at
a Redemption Price determined as set forth in the next preceding paragraph, or
(y) if and so lony as the conditions of the fifth paragraph on the face of this
Security are satisfied, pay the additional amounts specified in such paragraph.
The Company will make such determination and election and notify the Trustee
thereof as soon as practicable. and the Trustee will promptly give notice of
such determination in the manner provided below (the Determination Notice), in
each case stating the effective date of such certification, identification or
other reporting requirement, whether the Company has elected to permit
redemption of the Bearer Securities or to pay the additional amounts specified
in such paragraph and (if applicable) the last day by which the Company may
publish any notice of redemption. If the Company elects to permit redemption of
the Bearer Securities, notice of the redemption will be given not more than 368
days following the Determination Notice and will specify the date fixed for
redemption. The Bearer Securities will be redeemed on the day 97 days after
notice of the redemption has been given. Notwithstanding the foregoing, the
Company will not permit redemption of the Bearer Securities if the Company,
based upon an opinion of independent counsel, subsequently determines, not less
than 30 days prior to the date fixed for redemption, that no payment would be
subject to any such requirement, in which
case the Company will promptly notify the Trustee, which will promptly give notice of that determination in the manner described below, and any earIier redemption notice will thereupon be revoked and of no further effect.]
The sinking fund for this series provides for the redemption on _______ in
each year, beginning with the year and ending with the year _____ of [not less
than] [U.S.]$_______ [("mandatory sinking fund") and not more than
[U.S.]$______ aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company othewise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the inverse
order in which they become due.]]
Notice of redemption will be given by mail to Holders of [If the Securities of the series are also issuable as Bearer Securities, insert--Registered] Securities, not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.
In the event of redemption of this Security in part only, a new [If the Securities of the series are also issuable as Bearer Securities. insert-Registered] Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
[If the Security is convertible into Common Stock of the Company, insert-- Subject to the provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on or before [insert date] (except that, in case this Security or any portion hereof shall be called for redemption, such right shall terminate with respect to this Security or ponion hereof, as the case may be, so called for redemption at the close of business on the date fixed for redemption as provided in the Indenture unless the Company defaults in making the payment due upon redemption), to convert the principal amount of this Security (or any portion hereof which is [insert minimum denomination] or an integral multiple thereat), into fully paid and non-assessable shares (calculated as to each conversion to the nearest l/lOOth of a share) of the Common Stock of the Company, as said shares shali be constituted at the date of conversion, at the conversion price of $_____ principal amount of Securities for each share of Common Stock, or at the adjusted conversion price in effect at the date of conversion determined as provided in the Indenture, upon surrender of this Security, together with the conversion notice hereon duly executed, to the Company at the designated office or agency of the Company in _______,
accompanied (if so required by the Company) by instruments of transfer, in form satisfactory to the Company and to the Trustee, duly executed by the Holder or by its duly authorized attorney in writing. Such surrender shall, if made during any period beginning at the close of business on a Regular Record Date and ending at the opening of business on the Interest Payment Date next following such Regular Record Date (unless this Security or the portion being converted shall have been called for redemption on a Redemption Date during such period), also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of this Security then being converted. Subject to the aforesaid requirement of repayment and, in the case of a conversion after the Regular Record Date next preceding any Interest Payment Date and on or before such Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of record at such Regular Record Date to receive an installment of interest (with certain exceptions provided in the Indenture), no adjustment is to be made of conversion for interest accrued hereon for dividends on shares of Common Stock issued on conversion. The Company is not required to issue fractional shares upon any such conversion, but shall make adjustment therefor in cash on the basis of the cunent market value of such fractional interest as provided in the Indenture. The conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture provides that in case of certain consolidations or mergers to which the Company is a party or the sale of substantially all of the assets of the Company, the Indenture shall be amended, without the consent of any Holders of Securities, so that this Security, if then outstanding, will be convertible thereafter, during the period this Security shall be convenible as specified above, only into the kind and amount of securities, cash and other property receivable upon the consolidation, merger or sale by a holder of the number of shares of Common Stock into which this Security might have been converted immediately prior to such consolidation, merger or sale (assuming such holder of Common Stock failed to exercise any rights or election and received per share the kind and amount received per share by a plurality of non-electing shares) [, assuming if such consolidation, merger or sale is prior to ________, 199_, that this Security was convertible at the time of such consolidation, merger or sale at the initial conversion price specified above as adjusted from ______, 199_, to such time pursuant to the indenture]. In the event of conversion of this Security in part only, a new Security or Securities for the unconverted portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
[The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.]
If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to--insert formula for determining the amount. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, if any, on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected [If the Securities of the series are also issuable as Bearer Securities and are interest-bearing, insert--and any related coupons] under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66-2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series [If Securities of the series are also issuable as Bearer Securities and are interest-bearing, insert--and any related coupons], to waive compliance by the Company with certain provisions of the Indenture and cenain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the
Trustee shall not have received from the Holders of a majority in principal amount of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of [(and premium, if any)] or [any] interest on this Security on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium, if any)] and
[any] interest [(including additional amounts, as described on the face
hereof)] on this Security at the times, place[s] and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registerable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in [any place where the principal of [(and premium, if any)] and [any] interest on this Security are payable] [The City of New York, or, subject to any laws or regulations applicable thereto and to the right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer asent, at the [main] offIces of in and in or at such other offices or agencies as the Company may designate], duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new [If the securities of the Series are also issuable as Bearer Securities, insert--Registered] Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
[If the Securities of the series are not issuable as Bearer Securities. insert--The Securities of this series are issuable only in registered form, without coupons, in denominations of $______ and any integral multiple thereof. As provided in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.]
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the Company to redeem this Security in accordance with the terms of the Indenture referred to in this Security.
The instruction being given in exercise of the Holder's option to require redemption of this Security to the extent provided in such Indenture upon a Change in Control of the Company.
If only a portion of this Security is
submitted for redemption, please
indicate:
1. Principal Amount submitted for redemption:
U.S.$___________
2. Amount and denomination of Registered Securities representing principal amount of this Security not submitted for redemption to be issued:
Amount: U.S.$___________
Denominations:
U.S.$___________________
(U.S.$5,OOO or an integral multiple
thereof)
Note: Exercise of the option to require redemption is irrevocable.
FORM OF CONVERSION NOTICE FOR CONVERSION INTO SHARES OF COMMON STOCK
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $ _________
[INSERT MINIMUM DENOMINATION] or an inteyral multiple thereof) below
designated, into shares of Common Stock of the Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon the conversion, together with any check
in payment for fractional shares and any Securities representing any
unconverted principal amount hereof, be issued and delivered to the registered
holder hereof unless a different name has been indicated below. If this Notice
is being delivered on a date after the close of business on a Regular Record
Date and prior to the opening of business on the related Interest Payment Date
(unless this Security or the portion thereof beiny converted has been called
for redemption on a Redemption Date within such period), this Notice is
accompanied by payment, in funds acceptable to the Company, of an amount equal
to the interest payable on such Interest Payment Date of the principal of this
Security to be converted. If shares are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect hereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
U.S.$______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S.$_______
ties to be issued, other than to and in the name of the registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be issued othewise than to the resistered holder.
___________________________ Social Security or other
(NAME) Taxpayer Identification Number
__________________________________
___________________________
(ADDRESS)
___________________________
|
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN ORIGINAL
ISSUE DISCOUNT SECURUTY AND FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THlS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERVATIONAL PAPER COMPANY
No. B- U.S.$
CUSIP NO._____________
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the Company, which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to bearer upon presentation and
surrender of this Security the principal sum of _____ Thousand United States
Dollars on _______ and to _________ pay interest thereon, from the date hereof,
[semi-annually in arrears on ________ and ________ in each year] [annually in
arrears on __________ in each year], commencing _________ 19__ at the rate of
__% per annum, until the principal hereof is paid or made available for payment
[If applicable. insert -, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of __% per annum on any overdue
principal and premium and on any overdue installment of interest]. Such
pavments [(including premium, if any)] shall be made, subject to any laws or
regulations applicable thereto and to the right of the Company (limited as
provided in the Indenture) to rescind the designation of any such Paying Agent,
at the [main] offices of _______ in _______, ________ in _______ ________ in
_______, ________ in _______ and _______ in _______, or at such other offices
or agencies outside the United States (as defined below) as the Company may
designate, at the option of the Holder, by United States dollar check drawn on
a bank in The City of New York or by transfer of United States dollars to an
account maintained by the payee with a bank located outside the United States.
Interest on this Security due on or before Maturity shall be payable only upon
presentation and surrender at such an office or agency of the interest coupons
hereto attached as they severally mature. No payment of principal [, premium]
or interest on this Security shall be made at any office or agency of the
Company in the United
States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States [If Security is denominated and payable in United States dollars, insert -, provided, however, that payment of principal of [(and premium, if any)] and interest on this Security (includiny any additional amounts which may be payable as provided below) shall be made at the office of the Company's Paying Agent in The City of New York if (but only if) payment in United States dollars of the full amount of such principal, [premium,] interest or additional amounts, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with the Indenture is illegal or effectively precluded by exchange controls or other similar restrictions].
The Company will pay to the Holder of this Security or any coupon apper-
taining hereto who is a United States Alien (as defined below) such additional
amounts ds may be necessary in order that every net payment of the principal of
[(and premium, if any)] and interest on this Security, after deduction or
withholding for or on account of any present or future tax, assessment or other
governmental charge imposed by the United States or any political subdivision or
taxing authority thereof or therein upon or as a result of such payment, will
not be less than the amount provided for in this Security or in such coupon to
be then due and payable; provided, however. that the foregoing obligation to
pay additional amounts will not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settler, beneficiary or member of such Holder, if such Holder is an estate, a trust or a partnership) and the United States, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary or member) being or having been a citizen or resident or treated as a resident thereof, or being or having been engaged in trade or business or present herein, or having or having had a permanent establishment therein, or (ii) such Holder's present or former status as a personal holding company, a foreign personal holding company, a controlled foreign corporation for United States tax purposes or a corporation which accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed on interest received by a Person holding, actually or constructively, 10% or more
of the total combined voting power of al1 classes of stock of the Company entitled to vote;
(c) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of this Security or any coupon appertaining hereto, if compliance is required by statute or by regulation of the United States Treasury Department as a precondition to exemption from such tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is payable
otherwise than by deduction or withholding from payments of principal of
[(and premium, if any)] or interest on this Security; or
(f) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of this Security or any coupon appertaining hereto for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of principal of
[(and premium, if any) or interest on this Security to any United States Alien
who is a fiduciary or partnership or other than the sole beneficial owner of
any such payment to the extent that a beneficiary or settfor with respect to
such fiduciary, a member of such partnership or the beneficial owner would not
have been entitled to the additional amounts had such beneficiary, settlor,
member or beneficial owner been the Holder of this Security or any coupon
appertaining hereto. The term "United States Alien" means any Person who, for
United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust or a foreign partnership one or more of the members of which
is. for United States federal income tax purposes, a foreign corporation, a
nonresident alien individual or a non-resident alien fiduciary of a foreign
estate or trust, and the term United States means the United States of America
(including the States and the District of Columbia), its territories and its
possessions.
[Notwithstanding the foregoing, if and so long as a cerrification,
identification or other information reporting requirement referred to in the
[fourth] [fifth] paragraph on the reverse hereof would be fully satisfied by
payment of a backup withholdins tax or similar charge, the Company may elect,
by so stating in the Determination Notice (as defined in such paragraph), to
have the provisions of this paragraph apply in lieu of the provisions of such
paragraph. In such event, the Company will pay as additional amounts such
amounts as may be necessary so that every net payment made following the
effective date of such requirements outside the United States by the Company or
any of its Paying Agents of principal [(and premium, if any)] or interest due
in respect of any Bearer Security or any coupon of which the beneficial owner
is a United States Alien (but without any requirement that the nationality,
residence or identity of such beneficial owner by disclosed to the Company, any
Paying Agent or any governmental authority), after deduction or withholding
for or on account of such backup withholding tax or similar charge other than a
backup withholding tax or similar charge which is (i) the result of a
certification, identification or other reporting requirement described in
the second parenthetical clause of such paragraph, or (ii) imposed as a
result of the fact that the Company or any of its Paying Agents has actual
knowledge that the beneficial owner of such Bearer Security or coupon is within
the category of Persons described in clause (a) of the third paragraph of this
Security, or (iii) imposed as a result of presentation cl such Bearer Security
or coupon for payment more than 15 days after the date on which such payment
becomes due and payable or on which payment thereof is duly provided for,
whichever occurs later, will not be less than the amount provided for in such
Bearer Security or coupon to be then due and payable.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticating Agent, by manual signature of an authorized signatory, neither this Security, nor any coupon appertaining hereto, shall be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed and coupons bearing the facsimile signature of [its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated: ___________, 19_
INTERNATIONAL PAPER COMPANY
By:_______________________________
Attest: Name:
Title:
_____________________________
|
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of April 12, 1999 (herein called the "Indenture"), between the Company and The Bank of New York, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and ail indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and any coupons appertaining thereto and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount of U.S.$_____]. The Securities of this series are issuable as Bearer Securities, with interest coupons attached, in the denomination of U.S.$_____[, and as Registered Securities, without coupons, in denominations of U.S.$____ and any integral multiple thereof]. [As provided in the Indenture and subject to certain limitations therein set forth, Bearer Securities and Registered Securities of this series are exchangeable for a like aggregate principal amount of Registered Securities of this series and of like tenor of any authorized denominations, as requested by the Holder surrendering the same, upon surrender of the Security or Securities to be exchanged, with all unmatured coupons and ail matured coupons in default thereto appertaining, at any office or agency described below where Registered Securities of this series may be presented for registration of transfer; provided, however, that Bearer Securities surrendered in exchange for Registered Securities between a Record Date and the relevant Interest Payment Date shall be surrendered without the coupon relating to such Interest Payment Date. Registered Securities may not be exchanged for Bearer Securities.]
[If applicable, insert--The Securities of this series are subject to redemption [(1)] [If applicable insert--on ______ in any year commencing with the year _______ and ending with the year ______ through operation of the sinking fund for this series at a Redemption Price equal to 100% of the principal amount, and (2)] [If applicable insert--at any time [on or after ______, 19__, as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount), if redeemed [on or before _______, ____%, and if redeemed] during the 12-month period beginning of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
|
and thereafter at a Redemption Price equal to __% of the principal amount,] [and ( )] under the circumstances described in the next [two] succeeding paragraph[s] at a Redemption Price equal to 100% of the principal amount,] together in the case of any such redemption [If applicable, insert (whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date; provided, however, that interest installments on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States, except as herein provided otherwise).]
[If applicable, insert--The Securities of this series are subject to redemption (1) on _______ in any year commencing with the year _______ and ending with the year __________ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after _________ 19__], as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, if redeemed during the 12-month period beginning _____ of the years indicated,
Redemption Price for
Redemption Price Redemption Other-
for Redemption wise Than Through
Through Operation Operation of the
Year of the Sinking Fund Sinking Fund
---- ------------------- ------------
|
and thereafter at a Redemption Price equal to __% of the principal amount, and
(3) under the circumstances described in the next [two] succeeding paragraph[s]
at a
Redemption Price equal to 100% of the principal amount, toyether in the case of any such redemption (whether through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date; provided, however, that interest installments on this Security whose Stated Maturity is on or prior to such Redemption Date will be payable only upon presentation and surrender of coupons for such interest (at an office or agency located outside the United States, except as herein provided otherwise).] Notwithstanding the foregoing, the Company may not, prior to redeem any Securities of this series as contemplated by Clause [(I)] above as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than __% per annum.]
Subject to and upon compliance with the provisions of the Indenture (unless previously redeemed), this Security, if submitted for redemption, is subject to redemption, at the option of the Holder, on or afier the Exchange Date (upon any Change in Control of the Company as defined in the Indenture) unless the Continuing Directors, as defined in the Indenture, shall have approved such Change in Control [lf applicable, insert or the Company shall have called the Securities for redemption at the applicable Redemption Price for redemption at the option of the Company, in either case] on or before the day which is ten days after such Change in Control [If applicable, insert (whether or not such call occurs before or after such Change in Control).] The Holders option so to redeem is exercisable on or before the end of the Exercise Period specified in the notice of the Company relating to such Change in Control at a Redemption Price equal to 100% of the principal amount hereof plus accrued interest to the Redemption Date. For this Security to be submitted for such redemption, the Company must receive at the office of one of the Paying Agents, prior to the close of business on the last day of such Exercise Period, this Security together with all coupons maturing after the Redemption Date, accompanied by written notice to the Company (which shall be substantially in the form of the [appropriate] form of notice hereon) that the Holder hereof instructs the Company to redeem this Security. The Holder of this Security may elect to submit for redemption by the Company such Security as a whole but not in part. Such notice duly received shall be irrevocable.
The Securities may be redeemed, as a whole but not in part, at the option of the Company, at a Redemption Price equal to 100% of their principal amount, together with interest accrued to the date fixed for redemption, if, as a result of any amendment to, or change in, the laws or regulations of the United States or any
political subdivision or taxing authority thereof or therein affecting
taxation, or any amendment to or change in an official interpretation or
application of such laws or regulations, which amendment or change is effective
on or after _________, 19__, the Company will become obligated to pay
additional amounts (as described on the face hereof) on the next succeeding
Interest Payment Date and such obligation cannot be avoided by the use of
reasonable measures available to the Company; provided, however, that (a) no
such notice of redemption may be given earlier than 90 days prior to the
earliest date on which the Company would be obligated to pay such additional
amounts were a payment in respect of the Securities of this series then due,
and (b) at the time notice of such redemption is given, such obligation to pay
such additional amounts remains in effect. Immediately prior to the publication
of any notice of redemption pursuant to this paragraph, the Company shall
deliver to the Trustee a certificate stating that the Company is entitled to
effect such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Company so to redeem have occurred.
[If applicable,**** insert --In addition, if the Company determines, based upon
a written opinion of independent counsel, that any payment made outside the
United States by the Company or any of its Paying Agents of the full amount of
principal [, premium, if any,] or interest due with respect to any Bearer
Security or coupon would, under any present or future laws or regulations of
the United States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which requirement
is the disclosure to the Company, any Paying Agent or any governmental
authority of the nationality, residence or identity of a beneficial owner of
such Bearer Security or coupon who is a United States Alien (as defined on the
face hereof) (other than such a requirement (a) which would not be applicable
to a payment made by the Company or any of its Paying Agents (i) directly to
the beneficial owner or (ii) to any custodian, nominee or other agent of the
beneficial owner, or (b) which can be satisfied by the custodian, nominee or
other agent certifying that the beneficial owner is a United States Alien,
provided in each case referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial owner is not
otherwise subject to any such requirement), the Company at its election will
either (x) redeem the Securities, as a whole but not in part, at a Redemption
Price equal to 100% of their principal amount, together with interest accrued
to the date fixed for redemption, or (y) if and so long
as the conditions of the fifth paragraph on the face of this Security are satisfied, pay the additional amounts specified in such paragraph. The Company will make such determination and election and notify the Trustee thereof as soon as practicable, and the Trustee will promptly give notice of such determination in the manner provided below (the "Determination Notice"), in each case stating the effective date of such certification, identification or other information reporting requirement, whether the Company will redeem the Securities or will pay the additional amounts specified in such paragraph and (if applicable) the last date by which the redemption of the Securities must take place. If the Company elects to redeem the Securities, such redemption shall take place on such date, not later than one year after publication of the Determination Notice, as the Company elects by notice to the Trustee at least 75 days before such date, unless shorter notice is acceptable to the Trustee. Notwithstanding the foregoing, the Company will not so redeem the Securities if the Company, based upon an opinion of independent counsel, subsequently determines, not less than 30 days prior the date fixed for redemption, that subsequent payments would not be subject to any such requirement, in which case the Company will notify the Trustee, which will promptly give notice of that determination in the manner provided beiow, and any earlier redemption notice will thereupon be revoked and of no further effect. If the Company elects as provided in clause (y) above to pay additional amounts, and as long as the Company is obligated to pay such additional amounts. The Company may subsequently redeem the Securities, at any time, as a whole but not in part, at a Redemption Price equal to 100% of their principal amount, together with interest accrued to the date fixed for redemption, but without reduction for applicable United States withholding taxes.]
[If applicable, insert --The sinking fund for this series provides for the redemption on ____________ in each year, beginning with the year and ending with the year , of [not less than] U.S.$_____ [("mandatory sinking fund") and not more than U.S.$____] aggregate principal amount of Securities of this series. [Securities of this series acquired or redeemed by the Company othenvise than through [mandatory] sinking fund payments may be credited against subsequent [mandatory] sinking fund payments otherwise required to be made--in the inverse order in which they become due].]
Notice of redemption will be given by publication in an authorized Newspa-
per in The City of New York and, if the Securities of this series are then
listed on [The Stock Exchange of the United Kingdom and the Republic of
Ireland] [the Luxembourg Stock Exchange] [or] any [other] stock exchange
located outside the United States and such stock exchange shall so require, in
[London] [Luxembourg]
[or] in any [other] required city outside the United States or, if not practicable, elsewhere in Europe, [and by mail to Holders of Registered Securities,] not less than 30 nor more than 60 days prior to the date fixed for redemption, all as provided in the Indenture.
[If the Security is convertible into Common Stock of the Company, insert-- Subject to the provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on or before [insert date] (except that, in case this Security or any portion hereof shall be called for redemption, such right shall terminate with respect to this Security or portion hereof, as the case may be, so called for redemption at the close of business on the date fixed for redemption as provided in the Indenture unless the Company defaults in making the payment due upon redemption), to convert the principal amount of this Security (or any portion hereof which is [insert minimum denomination] or an integral multiple thereof), into fully paid and non-assessable shares (calculated as to each conversion to the nearest l/lOOth of a share) of the Common Stock of the Company, as said shares shall be constituted at the date of conversion, at the conversion price of $______ principal amount of Securities for each share of Common Stock, or at the adjusted conversion price in effect at the date of conversion determined as provided in the Indenture, upon surrender of this Security, together with the conversion notice hereon duly executed, to the Company at the designated office or agency of the Company in ____________ , accompanied (if so required by the Company) by instruments of transfer, in form satisfactory to the Company and to the Trustee, duly executed by the Holder or by its duly authorized attorney in writing. Such surrender shall, if made during any period beginning at the close of business on a Regular Record Date and ending at the opening of business on the Interest Payment Date next following such Regular Record Date (unless this Security or the portion being converted shall have been called for redemption on a Redemption Date during such period), also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of this Security then being converted. Subject to the aforesaid requirement of repayment and, in the case of a conversion after the Regular Record Date next preceding any Interest Payment Date and on or before such Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of record at such Regular Record Date to receive an installment of interest (with certain exceptions provided in the Indenture), no adjustment is to be made of conversion for interest accrued hereon for dividends on shares of Common Stock issued on conversion. The Company is not required to issue fractional shares upon any such conversion, but shall make adjustment therefor in cash on the basis of the current market value of such fractional
interest as provided in the Indenture. The conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture provides that in case of certain consolidations or mergers to which the Company is a party or the sale of substantially all of the assets of the Company, the Indenture shall be amended, without the consent of any Holders of Securities, so that this Security, if then outstanding, will be convertible thereafter, during the period this Security shall be convenibie as specified above, only into the kind and amount of securities, cash and other property receivable upon the consolidation, merger or sale by a holder of the number of shares of Common Stock into which this Security might have been converted immediately prior to such consolidation, merger or sale (assuming such holder of Common Stock failed to exercise any rights or election and received per share the kind and amount received per share by a plurality of non-electing shares) [, assuming if such consolidation, merger or sale is prior to ________, 199_, that this Security was convertible at the time of such consolidation, merger or sale at the initial conversion price specified above as adjusted from _______, 199_, to such time pursuant to the Indenture]. In the event of conversion of this Security in part only, a new Security or Securities for the unconvened portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.;]
[If the Security is convertible into other securities of the Company, specify the conversion features.]
[The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with certain conditions set forth therein.]
If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected and any related coupons under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66-2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Hoiders of specified percentages in principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series and any related coupons to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and any coupon appertaining hereto and of any Security issued in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series or any related coupon will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof or any related coupon for the enforcement of payment of the principal of [(and premium, if any)] or any interest on this Security or payment of such coupon on or after the respective due dates expressed herein or in such coupon.
No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of [(and premium, if any)] and any interest (including additional amounts, as described on the face hereof) on this Security at the times, places and rate, and in the coin or currency, herein prescribed.
Title to [Bearer] Securities and coupons shall pass by delivery. [As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of Registered Securities is registerable in the Security Register,
upon surrender of a Registered Security for registration of transfer at the
[Corporate Trust Office of the Trustee or such other office or agency of the
Company as may be designated by it in The City of New York, or subject to any
laws or regulations applicable thereto and to
the right of the Company (limited as provided in the Indenture) to rescind the designation of any such transfer agent, at the [main] office of __________ in ________ and __________ in _________ or at such other offices or agencies as the Company may designate, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing, and thereupon one or more new Registered Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
[No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.]
The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of a Bearer Security of any series and any coupon appertaining thereto [, and prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose in whose name such Security is registered,] as the owner thereof for ail purposes, whether or not such Security or such coupon is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture, the Securities and any coupons appertaining thereto shall be governed by and construed in accordance with the laws of the State of New York.
A11 terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the Company to redeem this Security in accordance with the terms of the Indenture referred to in this Security.
The instruction is being given in exercise of the Holder's option to require redemption of this Security to the extent provided in such Indenture upon a Change in Control of the Company.
NOTE: EXERCISE OF THE OPTION TO REQUlRE REDEMPTION IS IRREVOCABLE.
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY
The undersigned owner of this Security hereby irrevocably exercises the option to conven this Security, or portion hereof (which is U.S.$______ [INSERT MINMUM DENOMINATION] or an integral multiple thereof) below designated, into shares of Common Stock of the Company in accordance with the terms of the Indenture referred to in this Security, and directs that the shares issuable and deliverable upon the conversion, together with any check in payment for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If this Notice is being delivered on a date after the close of business on a Regular Record Date and prior to the opening of business on the related Interest Payment Date (unless this Security or the portion thereof being converted has been called for redemption on a Redemption Date within such period), this Notice is accompanied by payment, in funds acceptable to the Company, of an amount equal to the interest payable on such Interest Payment Date of the principal of this Security to be converted. If shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect hereto. Any amount required to be paid by the undersigned on account of interest accompa- nies this Security.
Principal Amount to be Converted
(in an integral multiple of
U.S. $______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S.$_______
ties to be issued, other than to and in the name of the registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be issued othewise than to the resistered holder.
___________________________ Social Security or other
(NAME) Taxpayer Identification Number
__________________________________
___________________________
(ADDRESS)
___________________________
|
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion into other securities of the Company.]
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UMDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATlONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
__________
INTERNATIONAL PAPER COMPANY U.S.$_____________
CUSIP NO.______________
Due_______________
|
Unless the Security to which this coupon appertains shall have been called for previous redemption and payment thereof duly provided for on the date set forth hereon, International Paper Company (herein called the "Company") will pay to bearer, upon surrender hereof, the amount shown hereon (together with any additional amounts in respect thereof which the Company may be required to pay according to the terms of said Security and the indenture referred to therein) at the Paying Agents set out on the reverse hereof or at such other offices or agencies (which, except as otherwise provided in the Security to which this coupon appertains, shall be located outside the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (the "United States")) as the Company may designate from time to time, at the option of the Holder, by United States dollar check drawn on the bank in The City of New York or by transfer of United States dollars to an account maintained by the payee with a bank located outside the United States, being [one year's] interest then payable on the said Security.
INTERNATIONAL PAPER COMPANY
By:_____________________________________
[Reverse of Coupon]*****
EXHIBIT D
[FORM OF BEARER SECURITY WHICH IS AN ORIGINAL
ISSUE DISCOUNT SECURITY AND FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE. FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERVAL REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS __% OF ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS _______, 19__ [,--.WD THE YIELD TO MATURITY IS %].
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
CUSIP NO.____________
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein call the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to bearer upon presentation and
surrender of this Security the principal sum of Thousand United States Dollars
on. [If the Security is interest-bearing, insert--, and to pay interest
thereon, from the date hereof, [semi-annually in arrears on and in each year]
[annually in arrears on in each year], commencing _________, 19__, per annum,
until the principal hereof is paid or made available for payment [If
applicable, insert--, and (to the extent that the payment of such interest
shall be leyally enforceable) at the rate of __% per annum on any overdue
principal and premium and on any overdue instalment of interest]]. [If the
Security is not to bear interest prior to Maturity, insert--The principal of
this Security shall not bear interest except in the case of a default in
payment of principal upon acceleration, upon redemption or at Stated Maturity,
and in such case the overdue principal of this Security shall bear interest at
the rate of % per annum (to the extent that the payment of such interest shall
be legally enforceable), which shall accrue from the date of such default in
payment to the date payment of such principal has been made or duly provided
for. Interest on
any overdue principal shall be payable on demand. Any such interest on any
overdue principal that is not so paid on demand shall bear interest at the rate
of __% per annum (to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of such demand for
payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.] Such payments
[(including premium, if any)] shall be made, subject to any laws or regulations
applicable thereto and to the right of the Company (limited as provided in the
Indenture) to rescind the designation of any such Paving Agent, at the [main]
offices of _______ in _______, ________ in _______ ________ in _______,
________ in _______ and _______ in _______, or at such other offtces or
agencies outside the United States (as defined below) as the Company may
designate, at the option of the Holder, by United States dollar check drawn on
a bank in The City of New York or by transfer of United States dollars to an
account maintained by the payee with a bank located outside the United States.
[If the Security is interest-bearing, insert--Interest on this Security due on
or before maturity shall be payable only upon presentation and surrender at
such an office or agency of the interest coupons hereto attached as they
severally mature.] No payment of principal [,--or] [premium] [or interest] on
this Security shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States [If
Security is denominated and payable in United States dollars, insert--;
provided, however, that payment of principal of [(and premium, if any)] and
[any] interest on this Security (including any additional amounts which may be
payable as provided below) shall be made at the office of the Company's Paying
Agent in The City of New York, if (but only if) payment in United States
dollars of the full amount of such principal[, premium] [, interest] or
additional amounts, as the case may be, at all offices or agencies outside the
United States maintained for the purpose by the Company in accordance with the
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions].
The Company will pay to the Holder of this Security [If the Security is interest-bearing, insert--or any coupon appertaining hereto] who is a United States Alien (as defined below) such additional amounts as may be necessary in order that [If Security is interest-bearing, insert--every net payment of the principal of [(and premium, if any)] and interest on this Security] [If the Security is not to bear interest prior to Maturity, insert--(i) the net payment of principal of (and interest on overdue principal, if any, on) this Security and (ii) the net proceeds from the sale or exchange of this Security, including, in each case, amounts received in respect of original issue discount], after deduction or withholding for or on account of any present or future
tax, assessment or other governmental charge imposed by the United States or any political subdivision or taxing authority thereof or therein upon or as a resuit of such payment [If the Security is not to bear interest prior to Maturity, insert--or as a result of such sale or exchange], will not be less than the amount provided for in this Security [If the Security is interest-bearing, insert--or in such coupon] to be then due and payable [If the Security is not to bear interest prior to Maturity, insert--or, in the case of a sale or exchange, the amount of the net proceeds from the sale or exchange before any such tax, assessment or other governmental charge]; provided, however, that the foregoing obligation to pay additional amounts will not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge which would not have been so imposed but for (i) the existence of any present or former connection between such Holder (or between a fiduciary, settlor, beneficiary or member of such Holder, if such Holder is an estate, a trust or a partnership) and the United States, including, without limitation, such Holder (or such fiduciary, settlor, beneficiary or member) being or having been a citizen or resident or treated as a resident thereof, or being or having been engaged in trade or business or present therein, or having or having had a permanent establishment therein, or (ii) such Holders present or former status as a personal holding company, a foreign personal holding company, a controlled foreign corporation for United States tax purposes or a corporation which accumulates earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental charge imposed [If the Security is interest-bearing, insert--on interest received by a Person holding, actually or constructively, 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote] [If the Security is not to bear interest prior to Maturity, insert--by reason of such Holders past or present status as the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote];
(c) any tax, assessment or other governmental charge which would not have been imposed but for the failure to comply with any certification, identification or other reporting requirements concerning the nationality, residence, identity or connection with the United States of the Holder or beneficial owner of this Security [If the Security is interest-bearing, insert--or any coupon appertaining hereto], if compliance is required by statute or by
regulation of the United States Treasury Department as a precondition to exemption from such tax, assessment or other governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property or any similar tax, assessment or other yovemmental charge;
(e) any tax, assessment or other governmental charge which is payable otherwise than by deduction or withholding from payments of [If the Security is interest-bearing, insert--principal of [(and premium, if any)] or interest on this Security] [If the Security is not to bear interest prior to Maturity, insert--principal of (or interest on overdue principal, if any, on) this Security or from payments from the proceeds of a sale or exchange of this Security]; or
(f) any tax, assessment or other governmental charge which would not have been so imposed but for the presentation by the Holder of this Security [If the Security is interest-bearing, insert--or any coupon appertaining hereto] for payment on a date more than 15 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
nor will additional amounts be paid with respect to any payment of [If the Security is interest-bearing, insert--principal of [(and premium, if any)] or interest on this Security] [If the Security is not to bear interest prior to maturity, insert--principal of (or interest on overdue principal, if any, on) this Security or of the proceeds of any sale or exchange of this Security] to any United States Alien who is a fiduciary or partnership or other than the sole beneficial owner of any such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner would not have been entitled to the additional amount had such beneficiary, settlor, member or beneficial owner been the Holder of this Security [If the Security is interest-bearing, insert--or any coupon appertaining hereto]. The term United States Alien means any Person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership of one or more of the members of which is, for United States federal income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust, and the term United States means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
[Notwithstanding the foregoing, if and so long as a certification,
identification or other reporting requirement referred to in the [fourth]
[fifth] paragraph on the reverse hereof would be fully satisfied by payment of
a backup withholding tax or similar charse, the Company may elect, by so
stating in the Determination Notice (as defined in such paragaph), to have the
provisions of this paragraph apply in lieu of the provisions of such paragraph.
In such event, the Company will pay as additional amounts such amounts as may
be necessary so that every net payment made following the effective date of
such requirements outside the United States by the Company or any of its Paying
Agents of principal [(and premium, if any)] [If the Security is
interest-bearing, insert--or interest] due in respect of any Bearer Security
[If the Security is interest-bearing, insert--or any coupon] of which the
beneficial owner is a United States Alien (but without any requirement that the
nationality, residence or identity of such beneficial owner be disclosed to the
Company, any Paying Agent or any governmental authority), after deduction or
withholding for or on account of such backup withholding tax or similar charge
other than a backup withholding tax or similar charge which is (i) the result
of a certification, identification or other reporting requirement described in
the second parenthetical clause of such paragraph, or (ii) imposed as a result
of the fact that the Company or any of its Paying Agents has actual knowledge
that the beneficial owner of such Bearer Security [If the Security is
interest-bearing, insert--or coupon] is within the category of Persons
described in clause (a) of the third paragraph of this Security, or (iii)
imposed as a result of presentation of such Bearer Security [If the Security is
interest-bearing, insert--or coupon] for payment more than 15 days after the
date on which such payment becomes due and payable or on which payment thereof
is duly provided for, whichever occurs later, will not be less than the amount
provided for in such Bearer Security [If the Security is interest-bearing,
insert--or coupon] to be then due and payable.]
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof, directly or through an Authenticatiny Agent, by manual signature of an authorized signatory, neither this Security, nor any coupon appertaining hereto, shall be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed and coupons bearing the facsimile signature of [its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated as of ________________, 19__
INTERNATIONAL PAPER COMPANY
By:______________________________
Attest:
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), issued and to be issued in one or more series under an Indenture, dated as of April 13, 1999 (herein called the "Indenture"), between the Company and The Bank of New York, as Trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and any coupons appertaining thereto and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [, limited in aggregate principal amount to U.S.$______]. The Securities of this series are issuable as Bearer Securities, with interest coupons attached, in the denomination of U.S.$______[, and as Registered Securities, without coupons, in denominations of U.S.$_____ and any integral multiple thereof]. [As provided in the Indenture and subject to certain limitations therein set forth, Bearer Securities and Registered Securities of this series are exchangeable for a like aggregate principal amount of Registered Securities of this series and of like tenor of any authorized denominations, as requested by the Holder surrendering the same, upon surrender of the Security or Securities to be exchanged, with all unmatured coupons and all matured coupons in default thereto appertaining, at any office or agency described below where Registered Securities of this series may be presented for registration of transfer; provided, however, that Bearer Securities sunendered in exchange for Registered Securities between a Record Date and the relevant Interest
Payment Date shall be surrendered without the coupon relating to such Interest Payment Date. Registered Securities may not be exchanged for Bearer Securities.]
[If applicable, insert--The Securities of this series are subject to redemption [(1)] [If applicable, insert--(1) on ______ in any year commencing with the year and ending with the year through operation of the sinking fund for this series at a Redemption Price equal to [insert formula for determining the amount], and (2)] [If applicable, insert--at any time [on or after ______, 19__], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentayes of the principal amount): If redeemed [on or before, __%, and if redeemed] during the 12-month period beginning of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
|
and thereafter at a Redemption Price equal to __% of the principal amount,]
[and ( )] under the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to [Insert formula for determining the
amount] [If the Security is interest-bearing, insert--, together in the case of
any such redemption [If applicable. insert-(whether through operation of the
sinkiny fund or othewise)] with accrued interest to the Redemption Date;
provided, however, that interest installments on this Security whose Stated
Maturity is on or prior to such Redemption Date will be payable only upon
presentation and surrender of coupons for such interest (at an office or agency
located outside the United States, except as herein provided otherwise)].]
[If applicable, insert--The Securities of this series are subject to redemption (1) on _________ in any year commencing with the year _______ and ending with the year _________ through operation of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table below, and (2) at any time [on or after __________, 19__], as a whole or in part, at the election of the Company, at the Redemption P&es for redemption otherwise than through operation of the sinking fund (expressed as percentages of the principal amount) set forth in the table
below: If redeemed during the 12-month period beginning of the years indicated,
Redemption Price for
Redemption Price Redemption Other-
for Redemption wise Than Through
Through Operation Operation of the
Year of the Sinking Fund Sinking Fund
---- ------------------- ------------
|
and thereafter at a Redemption Price equal to __% of the principal amount, and
(3) under the circumstances described in the next [two] succeeding paragraph[s]
at a Redemption Price equal to [Insert formula for determining the amount] [If
the Security is interest-bearing, insert--, together in the case of any such
redemption (whether through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date; provided, however, that interest
installments on this Security whose Stated Maturity is on or prior to such
Redemption Date will be payable only upon presentation and surrender of coupons
for such interest (at an office or agency located outside the United States,
except as herein provided otherwise)].] [Notwithstanding the foregoing, the
Company may not, prior to redeem any Securities of this series as contemplated
by Clause [(2)] above as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than __% per annum.]
Subject to and upon compliance with the provisions of the Indenture (unless previously redeemed), this Security, if submitted for redemption, is subject to redemption, at the option of the Holder, on or after the Exchange Date (upon any Change in Control of the Company as defined in the Indenture) unless the Continuing Directors, as defined in the Indenture, shall have approved such Change in Control [If applicable, insert--or the Company shall have called the Securities for redemption at the applicable Redemption Price for redemption at the option of the Company, in either case] on or before the day which is ten days after such Change in Control [If applicable, insert--(whether or not such call occurs before or after such Change in Control)]. The Holders option so to redeem is exercisable on or before the end of the Exercise Period specified in the notice of the Company relating to such
Change in Control at a Redemption Price equal to 100% of the principal amount hereof plus accrued interest to the Redemption Date. For this Security to be submitted for such redemption, the Company must receive at the office of one of the Paying Agents, prior to the close of business on the last day of such Exercise Period, this Security together with all coupons maturing after the Redemption Date. accompanied by written notice to the Company (which shall be substantially in the form of the [appropriate] form of notice hereon) that the Holder hereof instructs the Company to redeem this Security. The Holder of this Security may elect to submit for redemption by the Company such Security as a whole but not in part. Such notice duly received shall be irrevocable.
The Securities may be redeemed, as a whole but not in part, at the option of the Company, at a Redemption Price determined as set forth in the preceding paragraph [If the Security is interest-bearing, insert--, together with interest accrued to the dale fixed for redemption,] if, as a result of any amendment to, or change in, the laws or regulations of the United States or any poiitical subdivision or taxing authority thereof or therein affecting taxation, or any amendment to or change in an official interpretation or application of such laws or regulations, which amendment or change is effective on or after _______, 19__, the Company will become obligated to pay additional amounts (as described on the face hereof) [If the Security is interest-bearing, insert--on the next succeeding Interest Payment Date] [If the Security is not to bear interest prior to Maturity, insert--at Maturity or upon the sale or exchange of any Security] and such obligation cannot be avoided by the use of reasonable measures available to the Company; provided. however, that (a) no such notice of redemption may be given earlier than 90 days prior to the earliest date on which the Company would be obligated to pay such additional amounts were a payment in respect of the Securities of this series then due [If the Security is not to bear interest prior to Maturity, insert--or were a sale or exchange of a Security of this series then made], and (b) at the time notice of such redemption is given, such obligation to pay such additional amounts remains in effect. Immediately prior to the publication of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee a certificate statiny that the Company is entitled to effect such redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Company so to redeem have occurred.
[If applicable******, insert--In addition, if the Company determines,
based upon a written opinion of independent counsel, that any payment made
outside the United States by the Company or any of its Paying Agents of the
full amount of principal [, premium, if any,] or interest due with respect to
any Bearer Security or coupon would, under any present or future laws or
regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which requirement is the disclosure to the Company, any Paying Agent
or any governmental authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security or coupon who is a United States Alien
(as defined on the face hereof) (other than such a requirement (a) which would
not be applicable to a payment made by the Company or any one of its Paying
Agents (i) directly to the beneficial owner or (ii) to any custodian, nominee
or other agent of the beneficial owner, or (b) which can be satisfied by the
custodian, nominee or other agent certifying that the beneficial owner is a
United States Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement), the Company at its
election will either (x) redeem the Securities, as a whole but not in part, at
a Redemption Price determined as set forth in the next preceding paragraph,
together with interest accrued to the date fixed for redemption, or (y) if and
so long as the conditions of the fifth paragraph on the face of this Security
are satisfied, pay the additional amounts specified in such paragraph. The
Company will make such determination and election and notify the Trustee
thereof as soon as practicable, and the Trustee will promptly give notice of
such determination in the manner provided below (the "Determination Notice"),
in each case stating the effective date of such certification, identification
or other information reporting requirement, whether the Company will redeem the
Securities or will pay the additional amounts specified in such paragraph and
(if applicable) the last date by which the redemption of the Securities must
take place. If the Company elects to redeem the Securities, such redemption
shall take place on such date. not later than one year after publication of the
Determination Notice, as the Company elects by notice to the Trustee at least
75 days before such date, unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so redeem the Securities if
the Company, based upon an opinion of independent counsel, subsequently
determines, not less than 30 days prior to the date fixed for
****** This provision will only be applicable if the Securities of the series are interest-bearing and generally only if the Securities bear interest at a fixed rate.
redemption, that subsequent payments would not be subject to any such requirement. in which case the Company will notify the Trustee, which will promptly give notice of that determination in the manner provided below, and any earlier redemption notice will thereupon be revoked and of no further effect. If the Company elects as provided in clause (y) above to pay additional amounts, and as long as the Company is obligated to pay such additional amounts, the Company may subsequently redeem the Securities, at any time, as a whole but not in part, at a Redemption Price determined as set forth in the next preceding paragraph, together with interest accrued to the date fixed for redemption, but without reduction for applicable United States withholding taxes.]
[If applicable*******, insert--In addition, if the Company determines,
based upon a written opinion of independent counsel, that any payment made
outside the United States by the Company or any of its Paying Agents of the
full amount due with respect to any Bearer Security would, under any present or
future laws or regulations of the United States, be subject to any
certification, identification or other reporting requirement of any kind, the
effect of which requirement is the disclosure to the Company, any Paying Agent
or any governmental authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security who is a United States Alien (as
defined on the face hereof) (other than such a requirement (a) which would not
be applicable to a payment made by the Company or any one of its Paying Agents
(i) directly to the beneficial owner or (ii) to any custodian, nominee or other
agent of the beneficial owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien, provided in each case referred to in clauses (a)(ii) and
(b) that payment by such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement), the Company at its
election will either (x) permit any Holder of a Bearer Security to present such
Bearer Security for redemption within 90 days of notice of such redemption, at
a Redemption Price determined as set forth in the next preceding paragraph, or
(y) if and so long as the conditions of the fifth paragraph on the face of this
Security are satisfied, pay the additional amounts specified in such paragraph.
The Company will make such determination and election and notify the Trustee
thereof as soon as practicable, and the Trustee will promptly give notice of
such determination in the manner provided below (the Determination Notice), in
each case stating the effective date of such certification,
identification or other reporting requirement, whether the Company has elected to permit redemption of the Bearer Securities or to pay the additional amounts specified in such paragraph and (if appiicable) the last day by which the Company may publish any notice of redemption. If the Company elects to permit redemption of the Bearer Securities, notice of the redemption will be given not more than 268 days following the Determination Notice and will specify the date fixed for redemption. The Bearer Securities will be redeemed on the day 97 days after notice of the redemption has been given. Notwithstanding the foregoing, the Company will not permit redemption of the Bearer Securities if the Company, based upon an opinion of independent counsel, subsequently determines, not less than 30 days prior to the date fixed for redemption, that no payment would be subject to any such requirement, in which case the Company will promptly notify the Trustee, which will promptly yive notice of that determination in the manner described below, and any earlier redemption notice will thereupon be revoked and of no further effect.]
[If applicable, insert--The sinking fund for this series provides for the
redemption on in each year, beginning with the year ____ and ending with the
year ____ of [not less than] U.S.$____ [("mandatory sinking fund") and not more
than U.S.$____] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made--in the inverse
order in which they become due].]
Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and, if the Securities of this series are
then listed on [The Stock Exchange of the United Kingdom and the Republic of
lreland] [the Luxembourg Stock-Exchange] [or] any [other] stock exchange
located outside the United States and such stock exchange shall so require, in
[London] [Luxembourg] [or] in any [other] required city outside the United
States or, if not practicable, elsewhere in Europe, [and by mail to Hoiders of
Registered Securities,] not less than 30 nor more than 60 days prior to the
date fixed for redemption, all as provided in the Indenture.
[If the Security is convertible into Common Stock of the Company, insert-- Subject to the provisions of the Indenture, the Holder of this Security is entitled, at its option, at any time on or before [insert date] (except that, in case this Security or any portion hereof shall be called for redemption, such right shall terminate with respect to this Security or portion hereof, as the case may be, so called for redemption
at the close of business on the date fixed for redemption as provided in the Indenture unless the Company defaults in making the payment due upon redemption), to convert the principal amount of this Security (or any portion hereof which is [insert minimum denomination] or an integral multiple thereof), into fully paid and non-assessable shares (calculated as to each conversion to the nearest 1/100th of a share) of the Common Stock of the Company, as said shares shall be constituted at the date of conversion, at the conversion price of $_____ principal amount of Securities for each share of Common Stock, or at the adjusted conversion price in effect at the date of conversion determined as provided in the Indenture, upon surrender of this Security, together with the conversion notice hereon duly executed, to the Company at the designated office or agency of the Company in __________, accompanied (if so required by the Company) by instruments of transfer, in form satisfactory to the Company and to the Trustee, duly executed by the Holder or by its duly authorized attorney in writing. Such surrender shall, if made during any period beginning at the close of business on a Regular Record Date and ending at the opening of business on the Interest Payment Date next following such Regular Record Date (unless this Security or the portion being converted shall have been called for redemption on a Redemption Date during such period), also be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such Interest Payment Date on the principal amount of this Security then being converted. Subject to the aforesaid requirement of repayment and, in the case of a conversion after the Regular Record Date next preceding any Interest Payment Date and on or before such Interest Payment Date, to the right of the Holder of this Security (or any Predecessor Security) of record at such Regular Record Date to receive an installment of interest (with certain exceptions provided in the Indenture), no adjustment is to be made of conversion for interest accrued hereon for dividends on shares of Common Stock issued on conversion. The Company is not required to issue fractional shares upon any such conversion, but shall make adjustment therefor in cash on the basis of the current market value of such fractional interest as provided in the Indenture. The conversion price is subject to adjustment as provided in the Indenture. In addition, the Indenture provides that in case of certain consolidations or mergers to which the Company is a party or the sale of substantially all of the assets of the Company, the Indenture shall be amended, without the consent of any Holders of Securities, so that this Security, if then outstanding, will be convertible thereafter, or during the period this Security shall be convertible as specified above, only into the kind and amount of securities, cash and other property receivable upon the consolidation, merger or sale by a holder of the number of shares of Common Stock into which this Security might have been converted immediately prior to such consolidation, merger or sale (assuming such
holder of Common Stock failed to exercise any rights or election and received per share the kind and amount received per share by a plurality of non-electing shares)[, assuming if such consolidation, merger or sale is prior to ______, 199_, that this Security was convertible at the time of such consolidation, merger or sale at the initial conversion price specified above as adjusted from _______, 199_, to such time pursuant to the Indenture] In the event of conversion of this Security in part only, a new Security or Securities for the unconverted portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other securities of the Company, specify the conversion features.]
[The Indenture contains provisions for defeasance of (a) the entire indebtedness of this Security and (b) certain restrictive covenants upon compliance by the Company with cenain conditions set forth therein.]
If an Event of Default with respect to Securities of this series shall occur and be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to--[insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal and overdue interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company's obligations in respect of the payment of the principal of and interest, in any, on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided. the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series to be affected [If the Securities of the series are interest-bearing insert--and any related coupons] under the Indenture at any time by the Company and the Trustee with the consent of the Holders of 66-2/3% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Securities of each series at the time outstanding, on behalf of the Holders of all Securities of such series [If the Securities of the series are interest-bearing, insert--and any related coupons], to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and any coupon appertaining hereto and any Security issued in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series [If the Security is interest-bearing,
insert--or any related coupon] will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default with respect to this series, the Holders of not less than 35% in
principal amount of the Outstanding Securities of this series shall have made
written request and offered reasonable indemnity, to the Trustee to institute
such proceeding as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding Securities of this
series a direction inconsistent with such request and shall have failed to
institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof [If the
Security is interest-bearing, insert--or any related coupon] for the
enforcement of payment of the principal of [(and premium, if any)] or [any]
interest on this Security [If the Security is interest-bearing, insert--or
payment of such coupon] on or after the respective due dates expressed herein
[If the Security is interest-bearins, insert--or in such coupon].
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and premium. if any)] and
[any] interest (including additional amounts, as described on the face hereof)
on this Security at the times, places and rate, and in the coin or currency,
herein prescribed.
Title to [Bearer] Securities and coupons shall pass by delivery. [As
provided in the indenture and subject to cenain limitations therein set forth,
the transfer of Registered Securities is registerable in the Security Register,
upon surrender of a Registered Security for registration of transfer at the
[Corporate Trust Office of the Trustee or such other office or agency of the
Company as may be designated by it in The City of New York, or, subject to any
laws or regulations appiicable thereto and to the right of the Company (limited
as provided in the Indenture) to rescind the designation of any such transfer
asent. at the [main] offices of _______ in _______, ________ in _______
________ in _______, ________ in _______ and _______ in _______, or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and
thereupon one or more new Resistered Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.]
[No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.]
The Company, the Trustee and any agent of the Company or the Trustee may treat the bearer of a Bearer Security of any series [If the Securities of the series are interest-bearing, insert--and any coupon appertaining thereto] [, and prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Security is registered,] as the owner thereof for all purposes, whether or not such Security [If the Securities of the series are interest-bearing, insert--or such couponj is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture, the Securities and any coupons appertaining thereto shall be governed by and construed in accordance with the laws of the State of New York.
Al1 terms used in this Security which are defined in the Indenture shall have the meaning assigned to them in the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the Company to redeem this Security in accordance with the terms of the Indenture referred to in this Security.
The instruction is being given in exercise of the Holders option to require redemption of this Security to the extent provided in such Indenture upon a Chanye in Control of the Company.
Note: Exercise of the option to require redemption is irrevocable.
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the option to convert this Security, or portion hereof (which is U.S. $ [INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated, into shares of Common Stock of the Company in accordance with the terms of the Indenture referred to in this Security, and directs that the shares issuable and deliverable upon the conversion, together with any check in payment for fractional shares and any Securities representing any unconverted principal amount hereof, be issued and delivered to the registered holder hereof unless a different name has been indicated below. If this Notice is being delivered on a date after the close of business on a Regular Record Date and prior to the opening of business on the related Interest Payment Date (unless this Security or the portion thereof being converted has been called for redemption on a Redemption Date within such period), this Notice is accompanied by payment, in funds acceptable to the Company, of an amount equal to the interest payable on such Interest Payment Date of the principal of this Security to be converted. If shares are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect hereto. Any amount required to be paid by the undersigned on account of interest accompanies this Security.
Principal Amount to be Converted
(in an integral multiple of
U.S.$_____ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S.$_______
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be issued othewise than to the reyistered holder.
______________________________ Social Security or other
(NAME) Taxpayer Identification Number
_______________________________
______________________________
(ADDRESS)
______________________________
|
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion into other securities of the Company.]
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1954, AS
AMENDED
______________
INTERNATIONAL PAPER COMPANY U.S.$____________
CUSIP NO.________
Due______________
|
Unless the Security to which this coupon appertains shall have been called for previous redemption and payment thereof duly provided for on the date set forth hereon, International Paper Company (herein called the "Company") will pay to bearer, upon surrender hereof, the amount shown hereon (together with any additional amounts in respect thereof which the Company may be required to pay according to the terms of said Security and the Indenture referred to therein) at the Paying Agents set out on the reverse hereof or at such other offices or agencies (which, except as othenvise provided in the Security to which this coupon appertains, shall be located outside the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction (the United States)) as the Company may designate from time to time, at the option of the Holder, by United States dollar check drawn on a bank in The City of New York or by transfer of United States dollars to an account maintained by the payee with a bank located outside the United States, being [one year's] interest then payable on said Security.
INTERNATIONAL PAPER COMPANY
By:___________________________________
[Reverse of Coupon]********
EXHIBIT E
[Forms of Certification]
EXHIBIT E.1
[Form of Certificate to Be Given By
Person Entitled to Receive Bearer Security]
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that the above-captioned Securities are not being acquired by or on behalf of a United States Person, or for offer to resell or for resale directly or indirectly to a United States Person or any person inside the United States, or, if a beneficial interest in the Securities is being acquired by or on behalf of a United States Person, that such United States Person is a financial institution within the meaning of Section 1.165-12(c)(l)(v) of the United States Treasury Regulations or is acquiring through such financial institution, and in either case the financial institu- tion agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended. and the regulations thereunder, and is not purchasing for offer to resell or for resale inside the United States. If the undersigned is a dealer, the undersigned agrees to obtain a similar certificate from each person entitled to delivery of any of the above-captioned Securities in bearer form purchased from it; provided, however, that if the undersigned has actual knowledge that the information contained in such a certificate is false, (and, absent documentary evidence that the beneficial owner of such Security is not a United States Person, it will be deemed to have actual knowledge that such beneficial owner, other than a financial institution described above, is a United States Person if it has a United States address for such beneficial owner), the undersigned will not deliver a Security in temporary or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such certificate to the undersigned.
As used herein, "United States person" means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States and any estate or trust the income of which is subject to United States Federal income taxation regardless of its source, and "United
States" means the United States of America (including the States and the District of Columbia), its territories and its possessions.
We undertake to advise you by telex if the above statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities in bearer form as to all of such Securities.
We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy to any interested party in such proceedings.
Dated:___________, 19__
[To be dated on or after
______________, 19__
(the date determined as provided
in the Indenture)]
[Name of Person Entitled to Receive Bearer Security]
E-1-2
EXHIBIT E.2
[Form of Certificate to Be Given by Euro-Clear and Cede1 S.A. in Connection with the Exchange of a Portion of a Temporary Global Security]
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $ principal amount of the abovecaptioned Securities (i) that we have received from each of the persons appearing in our records as persons entitled to a portion of such principal amount (our "Qualified Account Holders") a certificate with respect to such portion substantially in the form attached hereto, and (ii) that we are not submitting herewith for exchange any portion of the temporary global Security representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any notification from any of our Qualified Account Holders to the effect that the statements made by such Qualified Account Holders with respect to any portion of the pan submitted herewith for exchanye are no longer true and cannot be relied upon as of the date hereof.
Dated:__________, 19__
[To be dated no earlier
than the Exchange Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, Brussels
Office, as Operator of the Euro-clear System]
[Cede1 S.A.]
By:_______________________________________
EXHIBIT E.3
[Form of Certificate to Be Given by Euro-Clear and Cede1 S.A to Obtain Interest Prior to an Exchange Date]
CERTIFICATE
[Insert title or sufficient description of Securities]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided above shall be returned to the Trustee for the above Securities immediately prior to the expiration of two years after such Interest Payment Date in order to be repaid by such Trustee to the above issuer at the end of two years after such Interest Payment Date.
Dated:_____________, 19__
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK, Brussels
Office, as Operator of the Euro-clear System]
[Cede1 S.A.]
By:______________________________________
EXHIEHT E.4
[Form of Certificate to Be Given by Beneficial Owners to Obtain Interest Prior to an Exchange Date]
CERTIFICATE
[Insert title or sufficient description of Securities]
This is to certify that as of the Interest Payment Date on [Insert date] and except as provided in the third paragaph hereof, none of the above-captioned Securities held by you for our account was beneficially owned by a United States Person or, if any of such Securities held by you for our account were beneficiaIly owned by a United States Person, such United States Person either provided an Internal Revenue Service Form W-9 with respect to such interest payment or certified with respect to such interest payment that it was an exempt recipient as defined in Section 1 60494(c)(l)(ii) of the United States Treasury Regulations.
As used herein, "United States Person" means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States and any estate or trust the income of which is subject to United States Federal income taxation regardIess of its source, and United States means the United States of America (including the States and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S.$______ principal amount of the above-captioned Securities appearing in your books as being held for our account as to which we are not yet able to certify and as to which we understand interest cannot be credited unless and until we are able so to certify.
We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:____________, 19__
[To be dated on or after the
relevant Interest Payment Date]
[Name of Person Entitled to Receive Interest]
E-4-2
FLOATING RATE NOTES
SUPPLEMENTAL INDENTURE
between
INTERNATIONAL PAPER COMPANY
and
THE BANK OF NEW YORK
Dated as of June 14, 2000
TABLE OF CONTENTS
--------------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms.............................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount................................4
SECTION 2.02. Maturity........................................................4
SECTION 2.03. Form; Denomination..............................................5
SECTION 2.04. Restrictive Legends.............................................5
SECTION 2.05. Special Transfer Provisions.....................................7
SECTION 2.06. Interest........................................................9
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company.................................12
SECTION 3.02. No Sinking Fund................................................13
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture...........13
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note...................................................13
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances.....................29
|
PAGE
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture......................................29
SECTION 7.02. Trustee Not Responsible for Recitals...........................29
SECTION 7.03. Governing Law..................................................29
SECTION 7.04. Separability...................................................29
SECTION 7.05. Counterparts...................................................30
|
THE FLOATING RATE NOTES SUPPLEMENTAL INDENTURE, dated as of June 14, 2000 (the "Supplemental Indenture"), between International Paper Company, a New York corporation (the "Company"), and The Bank of New York, as trustee (the "Trustee") under the Indenture, dated as of April 12, 1999, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to provide, among other things, for the future issuance of the Company's unsecured Securities to be issued from time to time in one or more series as might be determined by the Company under the Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Indenture;
WHEREAS, Section 9.1 of the Indenture provides for various matters with respect to any series of Securities issued under the Indenture to be established in an indenture supplemental to the Indenture;
WHEREAS, Section 9.1(7) of the Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Indenture to establish the form or terms of Securities of any series as provided by Sections 2.1 and 3.1 of the Indenture;
WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its Floating Rate Notes due July 8, 2002 (the "Floating Rate Notes"), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture, and this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and
deliver this Supplemental Indenture and all requirements necessary to make (i)
this Supplemental Indenture a valid instrument in accordance with its terms, and
(ii) the Notes, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Supplemental Indenture has been duly authorized
in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless the definition of such term is amended and supplemented pursuant to this Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this
Section 1.01(f):
"Additional Interest" shall have the meaning set forth in Section 2.06(f).
"Calculation Agent" shall have the meaning set forth in Section 2.06(d).
"Exchange Offer" means the exchange offer by the Company of Exchange Notes for Initial Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement relating to an Exchange Offer on an appropriate form and all amendments and supplements to such registration statement, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
"Exchange Notes" means the debt securities of the Company to be offered to Holders in exchange for Initial Notes pursuant to the Exchange Offer or
otherwise pursuant to a Registration of Exchange Notes containing terms identical to the Notes for which they are exchanged (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the date of issuance of the Notes and (ii) the Exchange Notes will contain the alternative fifth paragraph appearing on the reverse of the Notes in the form recited above and will not contain terms with respect to transfer restrictions).
"Floating Interest Determination Date" shall have the meaning set forth in Section 2.06(e).
"Floating Interest Payment Date" shall have the meaning set forth in
Section 2.06(a).
"Floating Interest Reset Date" shall have the meaning set forth in
Section 2.06(b).
"Floating Rate Interest Reset Period" shall have the meaning set forth in Section 2.06(b).
"Floating Rate Notes" shall have the meaning set forth in the recitals above.
"Global Note" shall have the meaning set forth in Section 2.03(a).
"Initial Floating Interest Rate" shall have the meaning set forth in
Section 2.06(a).
"Initial Notes" means the Notes issued under this Indenture which are not Exchange Notes.
"LIBOR" shall have the meaning set forth in Section 2.06(e).
"Note" or "Notes" means any Security or Securities, as the case may be, authenticated and delivered under this Supplemental Indenture. For all purposes of this Supplemental Indenture, the term "Notes" shall include the Initial Notes and any Exchange Notes to be issued and exchanged for any Initial Notes pursuant to the Registration Rights Agreement and this Indenture and, for purposes of this Supplemental Indenture, all Initial Notes and Exchange Notes shall vote together as one series of Notes under this Supplemental Indenture.
"Optional Redemption Price" shall have the meaning set forth in Section 3.01(a).
"Private Placement Legend" means the legend initially set forth on the Notes in the form set forth in 2.04(a).
"Registration" means a registered exchange offer for the Notes by the Company or other registration of the Notes under the Securities Act pursuant to and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of June 14, 2000, among the Company and the Purchasers and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement pursuant to and as defined in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Legend" means the legend set forth in Section 2.04 hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity Date" has the meaning set forth in
Section 2.02.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "Floating Rate Notes due July 8, 2002" initially offered in an aggregate principal amount to $800,000,000 which amount shall be as set forth in any written order of the Company for the authentication and delivery of Notes pursuant to Section 3.3 of the Indenture.
SECTION 2.02. Maturity.
(a) The Notes will mature on July 8, 2002 (the "Stated Maturity Date").
SECTION 2.03. Form; Denomination.
(a) The Notes shall be issued initially in the form of one or more
permanent restricted global Notes in registered form, substantially in the form
herein below recited (each and collectively, the "Global Note"), deposited with
the Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as herein provided; provided that Exchange Notes
(i) contain the alternative fifth paragraph appearing on the reverse of the
Notes in the form recited below and (ii) shall not contain terms with respect to
transfer restrictions.
The aggregate principal amount of the Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository or its nominee, as hereinafter provided.
(b) The Notes shall be issuable in denominations provided for in the form of Note recited below. The Notes shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers of the Company executing the same may determine with the approval of the Trustee.
SECTION 2.04. Restrictive Legends. (a) Except as otherwise provided in paragraph (c), each Global Note shall bear the following legend on the face thereof:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY (I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (II)
THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE NOTES
IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
(b) Each Global Note shall also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(c) (i) If the Company determines (upon the advice of counsel and such other certifications and evidence as the Company may reasonably require) that any Note is eligible for resale pursuant to Rule 144(k) under the Securities Act (or a successor provision) and that the Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent transfers of such Note (or a beneficial interest therein) are effected in compliance with the Securities Act, or
(ii) after an Initial Note is (x) sold pursuant to an effective registration statement under the Securities Act, pursuant to the Registration Rights Agreement or otherwise, or (y) exchanged for an Exchange Note,
the Company may instruct the Trustee to cancel such Note and issue to the Holder thereof (or to its transferee) a new Note of like tenor and amount, registered in the name of the Holder thereof (or its transferee), that does not bear the Restricted Legend, and the Trustee will comply with such instruction.
SECTION 2.05. Special Transfer Provisions. Unless and until an Initial Note is exchanged for an Exchange Note in connection with an effective Registration pursuant to the Registration Rights Agreement, the following provisions shall apply:
(a) The transfer or exchange of any Note (or a beneficial interest therein) that bears the Restricted Legend may only be made in compliance with the provisions of the Restricted Legend.
(b) The Trustee will retain copies of all certificates, opinions and other documents received in connection with the transfer or exchange of a Note (or a beneficial interest therein), and the Company will have the right to inspect and make copies thereof at any reasonable time upon written notice to the Trustee.
(c) By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Supplemental Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Supplemental Indenture. The Registrar shall not register a transfer of any Note unless such transfer complies with the restrictions on transfer of such Note set forth in this Supplemental Indenture. In connection with any transfer of Notes, each Holder agrees by its acceptance of the Notes to furnish the Registrar or the Company such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Registrar shall not be required to determine (but may rely on a determination made by the Company with respect to) the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.5 of the Indenture or this
Section 2.05. The Company shall have the right to inspect and make copies of all
such letters, notices or other written communications at any reasonable time
upon the giving of reasonable written notice to the Registrar.
Each Holder of a Note agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder's Note in violation of any provision of this Supplemental Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among members of, or participants in, the Depository or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(d) A Global Note may be transferred, in whole but not in part, only to another nominee of the Depository, or to a successor Depository selected or approved by the Company or to a nominee of such successor Depository.
(e) If at any time the Depository notifies the Company that it is unwilling or unable to continue as Depository or if at any time the Depository for such series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, and a successor Depository for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company will execute, and, subject to Article III of the Indenture, the Trustee, upon written notice from the Company, will authenticate and make available for delivery the Notes in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note in exchange for the Global Note. In addition, the Company may at any time determine that the Notes shall no longer be represented by a Global Note. In such event the Company will execute, and subject to Section 3.5 of the Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such determination by the Company, will authenticate and deliver the Notes in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note in exchange for the Global Note. Upon the exchange of the Global Note for such Notes in definitive registered form without coupons, in authorized denominations, the Global Note shall be cancelled by the Trustee. Such Notes in definitive registered form issued in exchange for the Global Note shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for delivery to the Persons in whose names such Notes are so registered.
SECTION 2.06. Interest.
(a) Each Note shall bear interest from June 14, 2000 to, but excluding, October 8, 2000 at a rate per annum equal to 7.67% (the "Initial Floating Interest Rate") and thereafter at a rate per annum equal to LIBOR (as defined below) plus 0.8% payable quarterly on January 8, April 8, July 8 and October 8, commencing on October 8, 2000 (each, a "Floating Interest Payment Date") to the Person in whose name the Note is registered at the close of business on the 15th day preceding the last day of the Floating Rate Interest Reset Period. If any
Floating Interest Payment Date (other than the Stated Maturity Date) falls on a day that is not a Business Day, the Floating Interest Payment Date shall be the following day that is a Business Day, except that if such Business Day is in the next succeeding calendar month, the Floating Interest Payment Date shall be the next preceding day that is a Business Day. If the Stated Maturity Date falls on a day that is not a Business Day, the payment of principal and interest shall be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after the Stated Maturity Date.
(b) The rate of interest on the Notes shall be reset quarterly (the "Floating Rate Interest Reset Period," and the first day of each Floating Interest Reset Period shall be a "Floating Interest Reset Date"). The Floating Interest Reset Dates shall be January 8, April 8, July 8 and October 8; provided, however, that the interest rate in effect from the date of issue to the first Floating Interest Reset Date with respect to the Notes, October 8, 2000, shall be the Initial Floating Interest Rate. If any Floating Interest Reset Date is a day that is not a Business Day, such Floating Interest Reset Date shall be postponed to the next succeeding Business Day, except that if such Business Day is in the next succeeding calendar month, such Floating Interest Reset Date shall be the next preceding Business Day.
Interest payments for the Notes shall be the amount of interest accrued from the date of issue or from the last date to which interest has been paid to, but excluding, the Floating Interest Payment Date or Stated Maturity Date, as the case may be.
(c) Accrued interest on any Note shall be calculated by multiplying the principal amount of the Notes by an accrued interest factor, to be computed by adding the interest factors calculated for each date in the period for which interest is being paid. The interest factor for each date shall be computed by dividing the interest rate applicable to that day by 360. All percentages used in or resulting from any calculation of the rate of interest on a Note shall be rounded, if necessary, to the nearest one-hundredth-thousandth of a percentage point (.0000001), with five one-millionths of a percentage point rounded upward, and all dollar amounts used in or resulting from such calculation shall be rounded to the nearest cent, with one-half cent rounded upward. The interest rate in effect on any Floating Interest Reset Date shall be the applicable rate as reset on such date. The interest rate applicable to any day that is not a Floating Interest Reset Date shall be the interest rate from the immediately preceding Floating Interest Reset Date, or, if none, the Initial Floating Interest Rate.
(d) Upon the request of a Holder, The Bank of New York, as calculation agent (the "Calculation Agent") shall provide the interest rate effective at such
time and, if determined, the interest rate that shall become effective on the next Floating Interest Reset Date with respect to that Note.
(e) The following terms have the meanings given to them in this
Section 2.06(e).
The "Floating Interest Determination Date" pertaining to a Floating Interest Reset Date shall be the second London banking day preceding that Floating Interest Reset Date. "London banking day" means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
"LIBOR" for each Floating Interest Reset Date shall be determined by the Calculation Agent as follows:
(i) As of the Floating Interest Determination Date, the Calculation
Agent shall determine LIBOR as the rate for deposits in U.S.
dollars for a period of three months, commencing on that Floating
Interest Determination Date, that appears on Page 3750 on Bridge
Telerate Inc., or any successor page, at approximately 11:00
a.m., London time, on that Floating Interest Determination Date.
The Initial Floating Interest Rate from the period commencing
June 14, 2000 to October 8, 2000 was based on LIBOR as the rate
for deposits in U.S. dollars for a period of four months. If no
rate appears, LIBOR in respect of that Floating Interest
Determination Date shall be determined as described in (ii)
below.
(ii) With respect to a Floating Interest Determination Date on which
no rate appears, the Calculation Agent shall request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent
after consultation with us, to provide the Calculation Agent with
its offered quotation for deposits in U.S. dollars for the period
of three months, commencing on the second London banking day
immediately following the Floating Interest Determination Date,
to prime banks in the London interbank market at approximately
11:00 a.m. London time, on that Floating Interest Determination
Date and in a principal amount that is representative of a single
transaction in U.S. dollars in that market at that time. If at
least two quotations are provided, LIBOR for the Floating
Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR will
be determined for the applicable Floating Interest Reset Date as
the arithmetic mean of the rates quoted at approximately 11:00
a.m.,
New York time, on that Floating Interest Reset Date, by three major banks in New York City, as selected by the Calculation Agent after consultation with the Company, for loans in U.S. dollars to leading European banks, for a period of three months, commencing on that Floating Interest Reset Date, and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time. If the banks so selected by the Calculation Agent are not quoting as mentioned above, LIBOR in effect for the applicable period shall be the same as LIBOR for the immediately preceding Floating Interest Reset Period, or, if there was no Floating Interest Reset Period, the rate of interest payable shall be the Initial Floating Interest Rate.
(f) In the event that a Registration Default (as defined in the Registration Rights Agreement) occurs, the Company shall pay additional interest (in addition to the interest otherwise due herein) ("Additional Interest") to the Holder during the period immediately following the occurrence of any such Registration Default in an amount equal to 0.25% per annum (regardless of the number of Registration Defaults) from and including the date on which any such Registration Default shall occur (subject to the terms of the Registration Rights Agreement) to but excluding the date on which all such Registration Defaults have been cured. The Company shall pay amounts due in respect of Additional Interest on each Floating Interest Payment Date (or, if the Company shall default in the payment of interest on any Floating Interest Payment Date, on the date such interest is otherwise paid as provided in the Indenture).
There shall also be payable in respect of the Note all Additional Interest that may have accrued on such Note for which the Note was exchanged (as defined in such Note) pursuant to the Exchange Offer, such Additional Interest to be calculated in accordance with the terms of such Note and payable at the same time and in the same manner as periodic interest on such Note.
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company.
Subject to the provisions of Article XI of the Indenture, except as otherwise may be specified in this Supplemental Indenture, the Company shall have the right to redeem this Note at the option of the Company, without premium or penalty, in whole or in part (an "Optional Redemption"), beginning on or after July 8, 2001, and the eighth day of each month thereafter, at a redemption price equal to the accrued and unpaid interest on the Notes so redeemed to the date
fixed for redemption, plus 100% of the principal amount thereof (the "Optional Redemption Price").
Any redemption pursuant to this paragraph will be made upon not less than 30 nor more than 60 days' prior notice before the Redemption Date to each Holder of the Notes, at the Optional Redemption Price. If the Notes are only partially redeemed pursuant to this Section 3.01(a), the Notes will be redeemed pro rata or by lot or by any other method utilized by the Trustee; provided, that if at the time of redemption the Notes are registered as Global Notes, the Depositary shall determine, in accordance with its procedures, the principal amount of such Notes held by each Holder of Notes to be redeemed. The Optional Redemption Price shall be paid prior to 12:00 noon, New York time, on the date of such redemption or at such earlier time as the Company determines provided that the Company shall deposit with the Trustee an amount sufficient to pay the Optional Redemption Price by 10:00 a.m., New York time, on the date such Optional Redemption Price is to be paid.
SECTION 3.02. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture.
Section 9.2 of the Indenture, as it relates to this series of Notes, is hereby modified so that the reference to "not less than 66-2/3%" shall read "not less than a majority", except in the case of increasing (or reopening) the principal amount, no consent of Holders will be required.
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note.
The Notes and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS A GLOBAL
NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY (I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR
(V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN
EACH OF CASES (II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE
RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE NOTES
IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No.________________________ CUSIP No. o
INTERNATIONAL PAPER COMPANY
FLOATING RATE NOTE DUE JULY 8, 2002
INTERNATIONAL PAPER COMPANY, a New York corporation (the "Company", which term includes any successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to ______________, or registered assigns, the principal sum of___________ Dollars ($___________ ) on July 8, 2002, and to pay interest on said principal sum from June 14, 2000 to, but excluding, October 8, 2000 at a rate per annum equal to 7.67% (the "Initial Floating Interest Rate") and thereafter at a rate per annum equal to LIBOR (as defined below) plus 0.8% payable quarterly on January 8, April 8, July 8 and October 8, commencing on October 8, 2000 (each, the "Floating Interest Payment Date"). If any Floating Interest Payment Date (other than the Stated Maturity Date) falls on a day that is not a Business Day, the Floating Interest Payment Date shall be the following day that is a Business Day, except that if such Business Day is in the next succeeding calendar month, the Floating Interest Payment Date shall be the next preceding day that is a Business Day. If the Stated Maturity Date of the Notes falls on a day that is not a Business Day, the payment of principal and interest shall be made on the next succeeding Business Day, and no interest on such payment shall accrue for the period from and after the Stated Maturity Date.
The rate of interest on the Notes shall be reset quarterly (the "Floating Rate Interest Reset Period," and the first day of each Floating Interest Reset Period shall be a "Floating Interest Reset Date"). The Floating Interest Reset Dates shall be January 8, April 8, July 8 and October 8; provided, however, that the interest rate in effect from the date of issue to the first Floating Interest Reset Date with respect to the Notes shall be the Initial Floating Interest Rate. If any Floating Interest Reset Date is a day that is not a Business Day, the Floating Interest Reset Date shall be postponed to the next succeeding Business Day, except that if such Business Day is in the next succeeding calendar month, that Floating Interest Reset Date shall be the next preceding Business Day. Interest payments for the Notes shall be the amount of interest accrued from the date of issue or from the last date to which interest has been paid to, but excluding, the Floating Interest Payment Date or Stated Maturity Date, as the case may be.
Accrued interest on any Note shall be calculated by multiplying the principal amount of the Notes by an accrued interest factor, to be computed by adding the interest factors calculated for each date in the period for which interest is being paid. The interest factor for each date shall be computed by dividing the interest rate applicable to that day by 360. All percentages used in or resulting from any calculation of the rate of interest on a Note shall be rounded, if necessary, to the nearest one-hundredth-thousandth of a percentage point (.0000001), with five one-millionths of a percentage point rounded upward, and all dollar amounts used in or resulting from such calculation shall be rounded to the nearest cent, with one-half cent rounded upward. The interest rate in effect on
any Floating Interest Reset Date shall be the applicable rate as reset on such date. The interest rate applicable to any day that is not a Floating Interest Reset Date shall be the interest rate from the immediately preceding Floating Interest Reset Date, or, if none, the Initial Floating Interest Rate.
The "Floating Interest Determination Date" pertaining to a Floating Interest Reset Date shall be the second London banking day preceding that Floating Interest Reset Date. "London banking day" means any day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
"LIBOR" for each Floating Interest Reset Date shall be determined by the Calculation Agent as follows:
(i) As of the Floating Interest Determination Date, the Calculation
Agent shall determine LIBOR as the rate for deposits in U.S.
dollars for a period of three months, commencing on that Floating
Interest Determination Date, that appears on Page 3750 on Bridge
Telerate Inc., or any successor page, at approximately 11:00
a.m., London time, on that Floating Interest Determination Date.
If no rate appears, LIBOR in respect of that Floating Interest
Determination Date shall be determined as described in (ii)
below.
(ii) With respect to a Floating Interest Determination Date on which
no rate appears, the Calculation Agent shall request the
principal London offices of each of four major reference banks in
the London interbank market, as selected by the Calculation Agent
after consultation with us, to provide the Calculation Agent with
its offered quotation for deposits in U.S. dollars for the period
of three months, commencing on the second London banking day
immediately following the Floating Interest Determination Date,
to prime banks in the London interbank market at approximately
11:00 a.m. London time, on that Floating Interest Determination
Date and in a principal amount that is representative of a single
transaction in U.S. dollars in that market at that time. If at
least two quotations are provided, LIBOR for the Floating
Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR will
be determined for the applicable Floating Interest Reset Date as
the arithmetic mean of the rates quoted at approximately 11:00
a.m., New York time, on that Floating Interest Reset Date, by
three major banks in New York City, as selected by the
Calculation Agent after consultation with the Company, for loans
in U.S. dollars to leading European banks, for a period of three
months,
commencing on that Floating Interest Reset Date, and in a principal amount that is representative of a single transaction in U.S. dollars in that market at that time. If the banks so selected by the Calculation Agent are not quoting as mentioned above, LIBOR in effect for the applicable period shall be the same as LIBOR for the immediately preceding Floating Interest Reset Period, or, if there was no Floating Interest Reset Period, the rate of interest payable shall be the Initial Floating Interest Rate.
Upon the request of the Holder, The Bank of New York, as calculation agent (the "Calculation Agent") shall provide the interest rate effective at such time and, if determined, the interest rate that shall become effective on the next Floating Interest Reset Date with respect to this Note.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to, be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed on this [ ]th day of [ ], [ ].
INTERNATIONAL PAPER COMPANY
By:____________________________
Name:
Title:
Attest:
By:_____________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
Dated_____________________
The Bank of New York,
as Trustee
By:________________________
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company (herein sometimes referred to as the "Notes"), specified in the Indenture, all issued or to be issued in one or more series under and pursuant to an Indenture dated as of April 12, 1999, duly executed and delivered between the Company and The Bank of New York as Trustee (the "Trustee"), as supplemented by the Floating Rate Notes Supplemental Indenture dated as of June 14, 2000, between the Company and the Trustee (the Indenture, as so supplemented, the "Indenture"), to which Indenture and all Indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. By the terms of the Indenture, the Notes are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. This series of Notes is initially offered in aggregate principal amount as specified in said Supplemental Indenture.
The Company shall have the right to redeem this Note at the option of the Company, without premium or penalty, in whole or in part (an "Optional Redemption"), beginning on or after July 8, 2001, and the eighth day of each month thereafter, at a redemption price equal to the accrued and unpaid interest on the Notes so redeemed to the date fixed for redemption, plus 100% of the principal amount thereof (the "Optional Redemption Price").
Any redemption pursuant to the preceding paragraph will be made upon not less than 30 nor more than 60 days' prior notice before the Redemption Date to the Holders, at the Optional Redemption Price. If the Notes are only partially redeemed pursuant to an Optional Redemption, the Notes will be redeemed pro rata or by lot or by any other method utilized by the Trustee; provided, that if at the time of redemption the Notes are registered as Global Notes, the Depositary shall determine, in accordance with its procedures, the principal amount of such Notes held by each Holder of Notes to be redeemed.
In the event of redemption of this Note in part only, a new Note or Notes of this series for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.
[In the event that a Registration Default (as defined in the Registration Rights Agreement) occurs, then the Company shall pay additional interest (in addition to the interest otherwise due hereon) ("Additional Interest") to the Holder during the period immediately following the occurrence of any such Registration Default in an amount equal to 0.25% per annum (regardless of the number of Registration Defaults) from and including the date on which any such
Registration Default shall occur (subject to the terms of the Registration Rights Agreement) to but excluding the date on which all such Registration Defaults have been cured. The Company shall pay amounts due in respect of Additional Interest on each Interest Payment Date (or, if the Company shall default in the payment of interest on any Interest Payment Date, on the date such interest is otherwise paid as provided in the Indenture).]1
[There shall also be payable in respect of this Note all Additional Interest that may have accrued on the Note for which this Note was exchanged (as defined in such Note) pursuant to the Exchange Offer, such Additional Interest to be calculated in accordance with the terms of such Note and payable at the same time and in the same manner as periodic interest on this Note.]2
In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Notes may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes of each series affected at the time outstanding, as defined in the Indenture, to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Notes; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any Notes of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, without the consent of the Holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Note then outstanding and affected thereby. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes of any series at the time outstanding affected thereby, on behalf of all of the Holders of the Notes of such series, to waive any past default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture with respect to such series, and its consequences, except a default in the payment of the principal of or premium, if any, or interest on any of the Notes of such series. Any such consent or waiver by the registered Holder
of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and of any Note issued in exchange therefor or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the time and place and at the rate and in the money herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of authorized denominations and for the same aggregate principal amount and series will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any paying agent and the Security Registrar may deem and treat the registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and premium, if any, and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. This Global Note is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series so issued are exchangeable for a like aggregate principal amount of Notes of this series of a different authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
By: _________________________
Date: _________________________
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date of an effective Registration or (ii) two years (or such lesser period as may be provided in any amendment to Rule 144(k) under the Securities Act) after the later of the original issuance of this Note or the last date on which this Note was held by the Company or an Affiliate of the Company, the undersigned confirms that without utilizing any general solicitation or general advertising that this Note is being transferred in accordance with its terms:
[Check One]
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement
under the Securities Act of 1933; or
(3) [ ] in the United States to a "qualified
institutional buyer" (as defined in Rule
144A under the Securities Act of 1933) that
purchases for its own account or for the
account of a qualified institutional buyer
to whom notice is given that such transfer
is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with
Rule 144A under the Securities Act of 1933;
or
(4) [ ] outside the United States in an offshore
transaction within the meaning of Regulation
S under the Securities Act in compliance
with Rule 904 under the Securities Act of
1933; or
(5) [ ] pursuant to the exemption from registration provided
by Rule 144 under the Securities Act of 1933.
|
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof, provided, however, that if box (4) or (5) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities and Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated: ___________ ________________________________________
NOTICE: To be executed by an executive
officer
|
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Signature of
Amount or decrease in Amount of increase in Principal Amount of this authorized signatory of
Date of Principal Amount of Principal Amount of Global Note following such Trustee or Securities
Exchange this Global Note this Global Note decrease or increase Custodian
-------- --------------------- --------------------- -------------------------- ------------------------
|
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances.
(a) Notes in the initial aggregate principal amount of $800,000,000 may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company, signed by its Chairman, its Vice Chairman, its President, or any Vice President and its Treasurer or an Assistant Treasurer, without any further action by the Company.
(b) The Company may, without notice to or the consent of the Holders of the Notes, issue additional notes of the same tenor as the Notes, so that such additional notes and the Notes shall form a single series. Any such Notes referred to in this Section 6.01(b) will be issued under a further supplemental indenture.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
SECTION 7.02. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 7.03. Governing Law.
This Supplemental Indenture and each Note shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws.
SECTION 7.04. Separability.
In case any one or more of the provisions contained in this Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 7.05. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, on the date or dates indicated in the acknowledgments and as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By /s/ Tobin Treichel
-----------------------------------
Name: Tobin Treichel
Title: Vice President - Finance
[Seal]
Attest:
By: /s/ Barbara S. Smithers
---------------------------
THE BANK OF NEW YORK
as Trustee
By /s/ Ming J. Shiang
-----------------------------------
Name: Ming J. Shiang
Title: Vice President
|
EXHIBIT 4.3
8% NOTES DUE JULY 8, 2003
SUPPLEMENTAL INDENTURE
between
INTERNATIONAL PAPER COMPANY
and
THE BANK OF NEW YORK
Dated as of June 14, 2000
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms...........................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount..............................4
SECTION 2.02. Maturity......................................................4
SECTION 2.03. Form; Denomination............................................5
SECTION 2.04. Restrictive Legends...........................................5
SECTION 2.05. Special Transfer Provisions...................................7
SECTION 2.06. Interest......................................................9
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company...............................11
SECTION 3.02. No Sinking Fund..............................................13
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture.........13
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note.................................................13
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances...................28
|
PAGE
----
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture....................................28
SECTION 7.02. Trustee Not Responsible for Recitals.........................28
SECTION 7.03. Governing Law................................................28
SECTION 7.04. Separability.................................................28
SECTION 7.05. Counterparts.................................................29
|
8% NOTES DUE JULY 8, 2003 SUPPLEMENTAL INDENTURE, dated as of June 14, 2000 (the "Supplemental Indenture"), between International Paper Company, a New York corporation (the "Company"), and The Bank of New York, as trustee (the "Trustee") under the Indenture, dated as of April 12, 1999, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to provide, among other things, for the future issuance of the Company's unsecured Securities to be issued from time to time in one or more series as might be determined by the Company under the Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Indenture;
WHEREAS, Section 9.1 of the Indenture provides for various matters with respect to any series of Securities issued under the Indenture to be established in an indenture supplemental to the Indenture;
WHEREAS, Section 9.1(7) of the Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Indenture to establish the form or terms of Securities of any series as provided by Sections 2.1 and 3.1 of the Indenture;
WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its 8% Notes due July 8, 2003 (the "Notes due July 8, 2003 "), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture, and this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture and all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms, and
(ii) the Notes, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Supplemental Indenture has been duly authorized
in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless the definition of such term is amended and supplemented pursuant to this Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this Section 1.01(f):
"Additional Interest" shall have the meaning set forth in Section 2.06(d).
"Business Day" shall have the meaning set forth in Section 3.01(b).
"Comparable Treasury Issue" shall have the meaning set forth in Section 3.01(b).
"Comparable Treasury Price" shall have the meaning set forth in Section 3.01(b).
"Exchange Offer" means the exchange offer by the Company of Exchange Notes for Initial Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement relating to an Exchange Offer on an appropriate form and all
amendments and supplements to such registration statement, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
"Exchange Notes" means the debt securities of the Company to be offered to Holders in exchange for Initial Notes pursuant to the Exchange Offer or otherwise pursuant to a Registration of Exchange Notes containing terms identical to the Notes for which they are exchanged (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the date of issuance of the Notes and (ii) the Exchange Notes will contain the alternative fifth paragraph appearing on the reverse of the Notes in the form recited above and will not contain terms with respect to transfer restrictions).
"Global Note" shall have the meaning set forth in Section 2.03(a).
"Independent Investment Banker" shall have the meaning set forth in
Section 3.01(b).
"Initial Notes" means the Notes issued under this Indenture which are not Exchange Notes.
"Note" or "Notes" means any Security or Securities, as the case may be, authenticated and delivered under this Supplemental Indenture. For all purposes of this Supplemental Indenture, the term "Notes" shall include the Initial Notes and any Exchange Notes to be issued and exchanged for any Initial Notes pursuant to the Registration Rights Agreement and this Indenture and, for purposes of this Supplemental Indenture, all Initial Notes and Exchange Notes shall vote together as one series of Notes under this Supplemental Indenture.
"Notes due July 8, 2003 " shall have the meaning set forth in the recitals above.
"Private Placement Legend" means the legend initially set forth on the Notes in the form set forth in 2.04(a).
"Reference Treasury Dealer" shall have the meaning set forth in Section 3.01(b).
"Reference Treasury Dealer Quotations" shall have the meaning set forth in
Section 3.01(b).
"Registration" means a registered exchange offer for the Notes by the Company or other registration of the Notes under the Securities Act pursuant to and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of June 14, 2000, among the Company and the Purchasers and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement pursuant to and as defined in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Remaining Life" shall have the meaning set forth in Section 3.01(b).
"Restricted Legend" means the legend set forth in Section 2.04 hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity Date" has the meaning set forth in Section 2.02.
"Treasury Rate" shall have the meaning set forth in Section 3.01(b).
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "Notes due July 8, 2003" initially offered in aggregate principal amount to $1,200,000,000 which amount shall be as set forth in any written order of the Company for the authentication and delivery of Notes pursuant to Section 3.3 of the Indenture.
SECTION 2.02. Maturity.
(a) The Notes will mature on July 8, 2003 (the "Stated Maturity Date").
SECTION 2.03. Form; Denomination.
(a) The Notes shall be issued initially in the form of one or more
permanent restricted global Notes in registered form, substantially in the form
herein below recited (each and collectively, the "Global Note"), deposited with
the Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as herein provided; provided that Exchange Notes
(i) contain the alternative fifth paragraph appearing on the reverse of the
Notes in the form recited below and (ii) shall not contain terms with respect
to transfer restrictions.
The aggregate principal amount of the Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository or its nominee, as hereinafter provided.
(b) The Notes shall be issuable in denominations provided for in the form of Note recited below. The Notes shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers of the Company executing the same may determine with the approval of the Trustee.
SECTION 2.04. Restrictive Legends. (a) Except as otherwise provided in paragraph (c), each Global Note shall bear the following legend on the face thereof:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY
(I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE
NOTES IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
(b) Each Global Note shall also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(c) (i) If the Company determines (upon the advice of counsel and such other certifications and evidence as the Company may reasonably require) that any Note is eligible for resale pursuant to Rule 144(k) under the Securities Act (or a successor provision) and that the Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent transfers of such Note (or a beneficial interest therein) are effected in compliance with the Securities Act, or
(ii) after an Initial Note is (x) sold pursuant to an effective registration statement under the Securities Act, pursuant to the Registration Rights Agreement or otherwise, or (y) exchanged for an Exchange Note,
the Company may instruct the Trustee to cancel such Note and issue to the Holder thereof (or to its transferee) a new Note of like tenor and amount, registered in the name of the Holder thereof (or its transferee), that does not bear the Restricted Legend, and the Trustee will comply with such instruction.
SECTION 2.05. Special Transfer Provisions. Unless and until an Initial Note is exchanged for an Exchange Note in connection with an effective Registration pursuant to the Registration Rights Agreement, the following provisions shall apply:
(a) The transfer or exchange of any Note (or a beneficial interest therein) that bears the Restricted Legend may only be made in compliance with the provisions of the Restricted Legend.
(b) The Trustee will retain copies of all certificates, opinions and other documents received in connection with the transfer or exchange of a Note (or a beneficial interest therein), and the Company will have the right to inspect and make copies thereof at any reasonable time upon written notice to the Trustee.
(c) By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Supplemental Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Supplemental Indenture. The Registrar shall not register a transfer of any Note unless such transfer complies with the restrictions on transfer of such Note set forth in this Supplemental Indenture. In connection with any transfer of Notes, each Holder agrees by its acceptance of the Notes to furnish the Registrar or the Company such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Registrar shall not be required to determine (but may rely on a determination made by the Company with respect to) the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 3.5 of the Indenture or this Section 2.05. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.
Each Holder of a Note agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder's Note in violation of any provision of this Supplemental Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among members of, or participants in, the Depository or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(d) A Global Note may be transferred, in whole but not in part, only to another nominee of the Depository, or to a successor Depository selected or approved by the Company or to a nominee of such successor Depository.
(e) If at any time the Depository notifies the Company that it is unwilling or unable to continue as Depository or if at any time the Depository for such series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, and a successor Depository for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company will execute, and, subject to Article III of the Indenture, the Trustee, upon written notice from the Company, will authenticate and make available for delivery the Notes in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note in exchange for the Global Note. In addition, the Company may at any time determine that the Notes shall no longer be represented by a Global Note. In such event the Company will execute, and subject to Section 3.5 of the Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such determination by the Company, will authenticate and deliver the Notes in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note in exchange for the Global Note. Upon the exchange of the Global Note for such Notes in definitive registered form without coupons, in authorized denominations, the Global Note shall be cancelled by the Trustee. Such Notes in definitive registered form issued in exchange for the Global Note shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for delivery to the Persons in whose names such Notes are so registered.
SECTION 2.06. Interest.
(a) Each Note will bear interest at the rate of 8% per annum (the "Coupon Rate") from the original date of issuance until the principal thereof becomes due and payable, and on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the Coupon Rate, compounded semi-annually, payable semi-annually in arrears on January 8 and July 8 of each year (each, an "Interest Payment Date") commencing on January 8, 2001, to the Person in whose name
such Note or any predecessor Note is registered, at the close of business on the regular record date for such interest installment, which shall be the close of business on the December 23 or June 23 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date.
(b) The amount of interest payable for any period less than a full interest period will be computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. In the event that any date on which interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date such payment was originally payable, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.
(c) Accrued interest that is not paid on the applicable Interest Payment Date will bear additional interest on the amount thereof at the Coupon Rate, compounded semi-annually and computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. The amount of additional interest payable for any full interest period will be computed by dividing the Coupon Rate by two.
(d) In the event that a Registration Default (as defined in the Registration Rights Agreement) occurs, the Company shall pay additional interest (in addition to the interest otherwise due herein) ("Additional Interest") to the Holder during the period immediately following the occurrence of any such Registration Default in an amount equal to 0.25% per annum (regardless of the number of Registration Defaults) from and including the date on which any such Registration Default shall occur (subject to the terms of the Registration Rights Agreement) to but excluding the date on which all such Registration Defaults have been cured. The Company shall pay amounts due in respect of Additional Interest on each Interest Payment Date (or, if the Company shall default in the payment of interest on any Interest Payment Date, on the date such interest is otherwise paid as provided in the Indenture).
There shall also be payable in respect of the Note all Additional Interest that may have accrued on such Note for which the Note was exchanged (as defined in such Note) pursuant to the Exchange Offer, such Additional Interest to be calculated in accordance with the terms of such Note and payable at the same time and in the same manner as periodic interest on such Note.
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.01(b) and to the provisions of Article XI of the Indenture, except as otherwise may be specified in this Supplemental Indenture, the Company shall have the right to redeem the Notes, in whole or in part, at any time or from time to time, at a redemption price (the "Optional Redemption Price") equal to the greater of:
(i) 100% of the principal amount plus accrued and unpaid interest to the Redemption Date; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months at the Treasury Rate plus 12.5 basis points plus accrued interest on the principal amount being redeemed to the Redemption Date.
Any redemption pursuant to the preceding paragraph will be made upon not less than 30 nor more than 60 days' prior notice before the Redemption Date to each Holder of the Notes, at the Optional Redemption Price. If the Notes are only partially redeemed pursuant to this Section 3.01(a), the Notes will be redeemed pro rata or by lot or by any other method utilized by the Trustee; provided, that if at the time of redemption the Notes are registered as a Global Note, the Depositary shall determine, in accordance with its procedures, the principal amount of such Notes held by each Holder of Notes to be redeemed. The Optional Redemption Price shall be paid prior to 12:00 noon, New York time, on the date of such redemption or at such earlier time as the Company determines provided that the Company shall deposit with the Trustee an amount sufficient to pay the Optional Redemption Price by 10:00 a.m., New York time, on the date such Optional Redemption Price is to be paid.
(b) The following terms have the meanings given to them in this Section 3.01(b).
"Business Day" means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term ("Remaining Life") of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date, (A) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston Corporation or, if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
"Reference Treasury Dealer" means (i) Credit Suisse First Boston Corporation and its successors, provided, however, that if Credit Suisse First Boston Corporation shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), we will substitute therefor another Primary Treasury Dealer and (ii) any other Primary Treasury Dealer selected by the Company
"Reference Treasury Dealer Quotations" means, with respect to the Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by the Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (i) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15 (519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities
most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.
SECTION 3.02. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture.
Section 9.2 of the Indenture, as it relates to this series of Notes, is hereby modified so that the reference to "not less than 66-2/3%" shall read "not less than a majority", except in the case of increasing (or reopening) the principal amount, no consent of Holders will be required.
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note.
The Notes and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS
A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY
(I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE
NOTES IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No.________________________ CUSIP No. o
INTERNATIONAL PAPER COMPANY
8% NOTES DUE JULY 8, 2003
INTERNATIONAL PAPER COMPANY, a New York corporation (the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to_____________ or registered assigns, the principal sum of___________ Dollars ($___________ ) on July 8, 2003, and to pay interest on said principal sum from the date of original issuance, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on January 8 and July 8 of each year (each such date, an "Interest Payment Date") commencing January 8, 2001, at the rate of 8% per annum until the principal hereof shall have become due and payable, and on any overdue principal and premium, if any, and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum compounded semi-annually. The amount of interest payable for any period less than a full interest period will be computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. In the event that any date on which interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date such payment was originally payable, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person in whose name this Note (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be the close of business on the December 23 or June 23 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such regular record date and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Notes not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of (and premium, if any) and the interest on this Note shall be payable at the office or agency of the Trustee maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts.
Accrued interest that is not paid on the applicable Interest Payment Date will bear additional interest on the amount thereof at the Coupon Rate, compounded semi-annually and computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to, be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed on this [ ]th day of [ ], [ ].
INTERNATIONAL PAPER COMPANY
By:_______________________________
Name:
Title:
Attest:
By:__________________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
Dated_____________________
The Bank of New York,
as Trustee
By:________________________
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company (herein sometimes referred to as the "Notes"), specified in the Indenture, all issued or to be issued in one or more series under and pursuant to an Indenture dated as of April 12, 1999, duly executed and delivered between the Company and The Bank of New York as Trustee (the "Trustee"), as supplemented by the 8% Notes due July 8, 2003 Supplemental Indenture dated as of June 14, 2000, between the Company and the Trustee (the Indenture, as so supplemented, the "Indenture"), to which Indenture and all Indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. By the terms of the Indenture, the Notes are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. This series of Notes is initially offered in aggregate principal amount as specified in said Supplemental Indenture.
The Company shall have the right to redeem this Note at the option of the Company, without premium or penalty, in whole or in part (an "Optional Redemption"), at a redemption price (the "Optional Redemption Price") equal to the greater of:
(i) 100% of the principal amount plus accrued and unpaid interest to the Redemption Date; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 12.5 basis points plus accrued interest on the principal amount being redeemed to the Redemption Date.
Any redemption pursuant to the preceding paragraph will be made upon not less than 30 nor more than 60 days prior notice before the Redemption Date to the Holders, at the Optional Redemption Price. If the Notes are only partially redeemed by the Company pursuant to an Optional Redemption, the Notes will be redeemed pro rata or by lot or by any other method utilized by the Trustee; provided that if at the time of redemption the Notes are registered as a Global Note, the Depositary shall determine, in accordance with its procedures, the principal amount of such Notes held by each Holder of Notes to be redeemed.
In the event of redemption of this Note in part only, a new Note or Notes of this series for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
[In the event that a Registration Default (as defined in the Registration Rights Agreement) occurs, then the Company shall pay additional interest (in addition to the interest otherwise due hereon) ("Additional Interest") to the Holder during the period immediately following the occurrence of any such Registration Default in an amount equal to 0.25% per annum (regardless of the number of Registration Defaults) from and including the date on which any such Registration Default shall occur (subject to the terms of the Registration Rights Agreement) to but excluding the date on which all such Registration Defaults have been cured. The Company shall pay amounts due in respect of Additional Interest on each Interest Payment Date (or, if the Company shall default in the payment of interest on any Interest Payment Date, on the date such interest is otherwise paid as provided in the Indenture).]1
[There shall also be payable in respect of this Note all Additional Interest that may have accrued on the Note for which this Note was exchanged (as defined in such Note) pursuant to the Exchange Offer, such Additional Interest to be calculated in accordance with the terms of such Note and payable at the same time and in the same manner as periodic interest on this Note.]2
In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Notes may be declared, and
2 To be included in Exchange Notes.
upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes of each series affected at the time outstanding, as defined in the Indenture, to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Notes; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any Notes of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, without the consent of the Holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Note then outstanding and affected thereby. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes of any series at the time outstanding affected thereby, on behalf of all of the Holders of the Notes of such series, to waive any past default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture with respect to such series, and its consequences, except a default in the payment of the principal of or premium, if any, or interest on any of the Notes of such series. Any such consent or waiver by the registered Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and of any Note issued in exchange therefor or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the time and place and at the rate and in the money herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of authorized denominations and for the same aggregate principal amount and series will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any paying agent and the Security Registrar may deem and treat the registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and premium, if any, and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. This Global Note is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series so issued are exchangeable for a like aggregate principal amount of Notes of this series of a different authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
By:_________________________
Date:_______________________
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date of an effective Registration or (ii) two years (or such lesser period as may be provided in any amendment to Rule 144(k) under the Securities Act) after the later of the original issuance of this Note or the last date on which this Note was held by the Company or an Affiliate of the Company, the undersigned confirms that without utilizing any general solicitation or general advertising that this Note is being transferred in accordance with its terms:
[Check One]
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] in the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933)
that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in each
case pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933; or
(5) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act of 1933.
|
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof, provided, however, that if box (4) or (5) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities and Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated: ___________ ____________________________________
NOTICE: To be executed by an executive
officer
|
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Signature of
Amount of decrease in Amount of increase in Principal Amount of this authorized signatory of
Date of Principal Amount of Principal Amount of Global Note following such Trustee or Securities
Exchange this Global Note this Global Note decrease or increase Custodian
-------- --------------------- --------------------- -------------------------- -----------------------
|
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances.
(a) Notes in the initial aggregate principal amount of $1,200,000,000 may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company, signed by its Chairman, its Vice Chairman, its President, or any Vice President and its Treasurer or an Assistant Treasurer, without any further action by the Company.
(b) The Company may, without notice to or the consent of the Holders of the Notes, issue additional notes of the same tenor as the Notes, so that such additional notes and the Notes shall form a single series. Any such Notes referred to in this Section 6.01(b) will be issued under a further supplemental indenture.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
SECTION 7.02. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 7.03. Governing Law.
This Supplemental Indenture and each Note shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws.
SECTION 7.04. Separability.
In case any one or more of the provisions contained in this Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 7.05. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, on the date or dates indicated in the acknowledgments and as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By /s/ Tobin Treichel
---------------------------------
Name: Tobin Treichel
Title: Vice President - Finance
[Seal]
Attest:
By: /s/ Barbara L. Smithers
-------------------------------
THE BANK OF NEW YORK
as Trustee
|
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, on the date or dates indicated in the acknowledgments and as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
Title:
[Seal]
Attest:
THE BANK OF NEW YORK
as Trustee
By /s/ Ming J. Shiang --------------------------------- Name: MING J. SHIANG Title: Vice President |
81/8% NOTES DUE JULY 8, 2005
SUPPLEMENTAL INDENTURE
between
INTERNATIONAL PAPER COMPANY
and
THE BANK OF NEW YORK
Dated as of June 14, 2000
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms...........................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount..............................4
SECTION 2.02. Maturity......................................................4
SECTION 2.03. Form; Denomination............................................5
SECTION 2.04. Restrictive Legends...........................................5
SECTION 2.05. Special Transfer Provisions...................................7
SECTION 2.06. Interest......................................................9
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company...............................11
SECTION 3.02. No Sinking Fund..............................................13
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture.........13
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note.................................................13
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances...................28
1
|
PAGE
----
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture....................................28
SECTION 7.02. Trustee Not Responsible for Recitals.........................28
SECTION 7.03. Governing Law................................................28
SECTION 7.04. Separability.................................................28
SECTION 7.05. Counterparts.................................................29
|
81/8% NOTES DUE JULY 8, 2005 SUPPLEMENTAL INDENTURE, dated as of June 14, 2000 (the "Supplemental Indenture"), between International Paper Company, a New York corporation (the "Company"), and The Bank of New York, as trustee (the "Trustee") under the Indenture, dated as of April 12, 1999, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee to provide, among other things, for the future issuance of the Company's unsecured Securities to be issued from time to time in one or more series as might be determined by the Company under the Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Indenture;
WHEREAS, Section 9.1 of the Indenture provides for various matters with respect to any series of Securities issued under the Indenture to be established in an indenture supplemental to the Indenture;
WHEREAS, Section 9.1(7) of the Indenture provides for the Company and the Trustee to enter into an indenture supplemental to the Indenture to establish the form or terms of Securities of any series as provided by Sections 2.1 and 3.1 of the Indenture;
WHEREAS, the Board of Directors of the Company has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to provide for the establishment of a new series of its Securities to be known as its 81/8% Notes due July 8, 2005 (the "Notes due July 8, 2005"), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Indenture, and this Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture and all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms, and
(ii) the Notes, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Supplemental Indenture has been duly authorized
in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless the definition of such term is amended and supplemented pursuant to this Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) the following terms have the meanings given to them in this Section 1.01(f):
"Additional Interest" shall have the meaning set forth in Section 2.06(d).
"Business Day" shall have the meaning set forth in Section 3.01(b).
"Comparable Treasury Issue" shall have the meaning set forth in Section 3.01(b).
"Comparable Treasury Price" shall have the meaning set forth in Section 3.01(b).
"Exchange Offer" means the exchange offer by the Company of Exchange Notes for Initial Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement relating to an Exchange Offer on an appropriate form and all
amendments and supplements to such registration statement, in each case including the prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
"Exchange Notes" means the debt securities of the Company to be offered to Holders in exchange for Initial Notes pursuant to the Exchange Offer or otherwise pursuant to a Registration of Exchange Notes containing terms identical to the Notes for which they are exchanged (except that (i) interest thereon shall accrue from the last date on which interest was paid on the Notes or, if no such interest has been paid, from the date of issuance of the Notes and (ii) the Exchange Notes will contain the alternative fifth paragraph appearing on the reverse of the Notes in the form recited above and will not contain terms with respect to transfer restrictions).
"Global Note" shall have the meaning set forth in Section 2.03(a).
"Independent Investment Banker" shall have the meaning set forth in
Section 3.01(b).
"Initial Notes" means the Notes issued under this Indenture which are not Exchange Notes.
"Note" or "Notes" means any Security or Securities, as the case may be, authenticated and delivered under this Supplemental Indenture. For all purposes of this Supplemental Indenture, the term "Notes" shall include the Initial Notes and any Exchange Notes to be issued and exchanged for any Initial Notes pursuant to the Registration Rights Agreement and this Indenture and, for purposes of this Supplemental Indenture, all Initial Notes and Exchange Notes shall vote together as one series of Notes under this Supplemental Indenture.
"Notes due July 8, 2005" shall have the meaning set forth in the recitals above.
"Private Placement Legend" means the legend initially set forth on the Notes in the form set forth in 2.04(a).
"Reference Treasury Dealer" shall have the meaning set forth in Section 3.01(b).
"Reference Treasury Dealer Quotations" shall have the meaning set forth in
Section 3.01(b).
"Registration" means a registered exchange offer for the Notes by the Company or other registration of the Notes under the Securities Act pursuant to and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement, dated as of June 14, 2000, among the Company and the Purchasers and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement pursuant to and as defined in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Remaining Life" shall have the meaning set forth in Section 3.01(b).
"Restricted Legend" means the legend set forth in Section 2.04 hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity Date" has the meaning set forth in Section 2.02.
"Treasury Rate" shall have the meaning set forth in Section 3.01(b).
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount.
There is hereby authorized a series of Securities designated the "Notes due July 8, 2005" initially offered in aggregate principal amount to $1,000,000,000 which amount shall be as set forth in any written order of the Company for the authentication and delivery of Notes pursuant to Section 3.3 of the Indenture.
SECTION 2.02. Maturity.
(a) The Notes will mature on July 8, 2005 (the "Stated Maturity Date").
SECTION 2.03. Form; Denomination.
(a) The Notes shall be issued initially in the form of one or more
permanent restricted global Notes in registered form, substantially in the form
herein below recited (each and collectively, the "Global Note"), deposited with
the Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as herein provided; provided that Exchange Notes
(i) contain the alternative fifth paragraph appearing on the reverse of the
Notes in the form recited below and (ii) shall not contain terms with respect
to transfer restrictions.
The aggregate principal amount of the Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository or its nominee, as hereinafter provided.
(b) The Notes shall be issuable in denominations provided for in the form of Note recited below. The Notes shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers of the Company executing the same may determine with the approval of the Trustee.
SECTION 2.04. Restrictive Legends. (a) Except as otherwise provided in paragraph (c), each Global Note shall bear the following legend on the face thereof:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY
(I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT
TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE
NOTES IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
(b) Each Global Note shall also bear the following legend on the face thereof:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE THEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(c) (i) If the Company determines (upon the advice of counsel and such other certifications and evidence as the Company may reasonably require) that any Note is eligible for resale pursuant to Rule 144(k) under the Securities Act (or a successor provision) and that the Restricted Legend is no longer necessary or appropriate in order to ensure that subsequent transfers of such Note (or a beneficial interest therein) are effected in compliance with the Securities Act, or
(ii) after an Initial Note is (x) sold pursuant to an effective registration statement under the Securities Act, pursuant to the Registration Rights Agreement or otherwise, or (y) exchanged for an Exchange Note,
the Company may instruct the Trustee to cancel such Note and issue to the Holder thereof (or to its transferee) a new Note of like tenor and amount, registered in the name of the Holder thereof (or its transferee), that does not bear the Restricted Legend, and the Trustee will comply with such instruction.
SECTION 2.05. Special Transfer Provisions. Unless and until an Initial Note is exchanged for an Exchange Note in connection with an effective Registration pursuant to the Registration Rights Agreement, the following provisions shall apply:
(a) The transfer or exchange of any Note (or a beneficial interest therein) that bears the Restricted Legend may only be made in compliance with the provisions of the Restricted Legend.
(b) The Trustee will retain copies of all certificates, opinions and other documents received in connection with the transfer or exchange of a Note (or a beneficial interest therein), and the Company will have the right to inspect and make copies thereof at any reasonable time upon written notice to the Trustee.
(c) By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Supplemental Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Supplemental Indenture. The Registrar shall not register a transfer of any Note unless such transfer complies with the restrictions on transfer of such Note set forth in this Supplemental Indenture. In connection with any transfer of Notes, each Holder agrees by its acceptance of the Notes to furnish the Registrar or the Company such certifications, legal opinions or other information as either of them may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or a transaction not subject to, the registration requirements of the Securities Act; provided that the Registrar shall not be required to determine (but may rely on a determination made by the Company with respect to) the sufficiency of any such certifications, legal opinions or other information.
The Registrar shall retain copies of all letters, notices and other written communications received pursuant to Section 3.5 of the Indenture or this Section 2.05. The Company shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar.
Each Holder of a Note agrees to indemnify the Company and the Trustee against any liability that may result from the transfer, exchange or assignment of such Holder's Note in violation of any provision of this Supplemental Indenture and/or applicable United States Federal or state securities law.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Supplemental Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among members of, or participants in, the Depository or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Supplemental Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(d) A Global Note may be transferred, in whole but not in part, only to another nominee of the Depository, or to a successor Depository selected or approved by the Company or to a nominee of such successor Depository.
(e) If at any time the Depository notifies the Company that it is unwilling or unable to continue as Depository or if at any time the Depository for such series shall no longer be registered or in good standing under the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, and a successor Depository for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, the Company will execute, and, subject to Article III of the Indenture, the Trustee, upon written notice from the Company, will authenticate and make available for delivery the Notes in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note in exchange for the Global Note. In addition, the Company may at any time determine that the Notes shall no longer be represented by a Global Note. In such event the Company will execute, and subject to Section 3.5 of the Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing such determination by the Company, will authenticate and deliver the Notes in definitive registered form without coupons, in authorized denominations, and in an aggregate principal amount equal to the principal amount of the Global Note in exchange for the Global Note. Upon the exchange of the Global Note for such Notes in definitive registered form without coupons, in authorized denominations, the Global Note shall be cancelled by the Trustee. Such Notes in definitive registered form issued in exchange for the Global Note shall be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes to the Depositary for delivery to the Persons in whose names such Notes are so registered.
SECTION 2.06. Interest.
(a) Each Note will bear interest at the rate of 81/8% per annum (the "Coupon Rate") from the original date of issuance until the principal thereof becomes due and payable, and on any overdue principal and (to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the Coupon Rate, compounded semi-annually, payable semi-annually in arrears on January 8 and July 8 of each year (each, an "Interest Payment Date") commencing on January 8, 2001, to the Person in whose name
such Note or any predecessor Note is registered, at the close of business on the regular record date for such interest installment, which shall be the close of business on the December 23 or June 23 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date.
(b) The amount of interest payable for any period less than a full interest period will be computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. In the event that any date on which interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date such payment was originally payable, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date.
(c) Accrued interest that is not paid on the applicable Interest Payment Date will bear additional interest on the amount thereof at the Coupon Rate, compounded semi-annually and computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. The amount of additional interest payable for any full interest period will be computed by dividing the Coupon Rate by two.
(d) In the event that a Registration Default (as defined in the Registration Rights Agreement) occurs, the Company shall pay additional interest (in addition to the interest otherwise due herein) ("Additional Interest") to the Holder during the period immediately following the occurrence of any such Registration Default in an amount equal to 0.25% per annum (regardless of the number of Registration Defaults) from and including the date on which any such Registration Default shall occur (subject to the terms of the Registration Rights Agreement) to but excluding the date on which all such Registration Defaults have been cured. The Company shall pay amounts due in respect of Additional Interest on each Interest Payment Date (or, if the Company shall default in the payment of interest on any Interest Payment Date, on the date such interest is otherwise paid as provided in the Indenture).
There shall also be payable in respect of the Note all Additional Interest that may have accrued on such Note for which the Note was exchanged (as defined in such Note) pursuant to the Exchange Offer, such Additional Interest to be calculated in accordance with the terms of such Note and payable at the same time and in the same manner as periodic interest on such Note.
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.01(b) and to the provisions of Article XI of the Indenture, except as otherwise may be specified in this Supplemental Indenture, the Company shall have the right to redeem the Notes, in whole or in part, at any time or from time to time, at a redemption price (the "Optional Redemption Price") equal to the greater of:
(i) 100% of the principal amount plus accrued and unpaid interest to the Redemption Date; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months at the Treasury Rate plus 25 basis points plus accrued interest on the principal amount being redeemed to the Redemption Date.
Any redemption pursuant to the preceding paragraph will be made upon not less than 30 nor more than 60 days' prior notice before the Redemption Date to each Holder of the Notes, at the Optional Redemption Price. If the Notes are only partially redeemed pursuant to this Section 3.01(a), the Notes will be redeemed pro rata or by lot or by any other method utilized by the Trustee; provided, that if at the time of redemption the Notes are registered as a Global Note, the Depositary shall determine, in accordance with its procedures, the principal amount of such Notes held by each Holder of Notes to be redeemed. The Optional Redemption Price shall be paid prior to 12:00 noon, New York time, on the date of such redemption or at such earlier time as the Company determines provided that the Company shall deposit with the Trustee an amount sufficient to pay the Optional Redemption Price by 10:00 a.m., New York time, on the date such Optional Redemption Price is to be paid.
(b) The following terms have the meanings given to them in this Section 3.01(b).
"Business Day" means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term ("Remaining Life") of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any Redemption Date, (A) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Quotations.
"Independent Investment Banker" means Credit Suisse First Boston Corporation or, if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Company.
"Reference Treasury Dealer" means (i) Credit Suisse First Boston Corporation and its successors, provided, however, that if Credit Suisse First Boston Corporation shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), we will substitute therefor another Primary Treasury Dealer and (ii) any other Primary Treasury Dealer selected by the Company
"Reference Treasury Dealer Quotations" means, with respect to the Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by the Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (i) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15 (519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities
most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date. The Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date.
SECTION 3.02. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture.
Section 9.2 of the Indenture, as it relates to this series of Notes, is hereby modified so that the reference to "not less than 66-2/3%" shall read "not less than a majority", except in the case of increasing (or reopening) the principal amount, no consent of Holders will be required.
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note.
The Notes and the Trustee's Certificate of Authentication to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS A GLOBAL NOTE
WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS
EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY
(I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE
NOTES IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV) ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
No.________________________ CUSIP No. o
INTERNATIONAL PAPER COMPANY
81/8% NOTES DUE JULY 8, 2005
INTERNATIONAL PAPER COMPANY, a New York corporation (the "Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to_____________ or registered assigns, the principal sum of___________ Dollars ($___________ ) on July 8, 2005, and to pay interest on said principal sum from the date of original issuance, or from the most recent interest payment date to which interest has been paid or duly provided for, semi-annually in arrears on January 8 and July 8 of each year (each such date, an "Interest Payment Date") commencing January 8, 2001, at the rate of 81/8% per annum until the principal hereof shall have become due and payable, and on any overdue principal and premium, if any, and (without duplication and to the extent that payment of such interest is enforceable under applicable law) on any overdue installment of interest at the same rate per annum compounded semi-annually. The amount of interest payable for any period less than a full interest period will be computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period. In the event that any date on which interest is payable on the Notes is not a Business Day, then payment of the interest payable on such date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the date such payment was originally payable, except that, if such Business Day is in the next succeeding calendar year, such payment shall be made on the immediately preceding Business Day, in each case with the same force and effect as if made on such date. The interest installment so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the person in whose name this Note (or one or more Predecessor Securities, as defined in said Indenture) is registered at the close of business on the regular record date for such interest installment, which shall be the close of business on the December 23 or June 23 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date. Any such interest installment not punctually paid or duly provided for shall forthwith cease to be payable to the registered Holders on such regular record date and may be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a special record date to be fixed by the Trustee for the payment of such defaulted interest, notice whereof shall be given to the registered Holders of this series of Notes not less than 10 days prior to such special record date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, all as more fully provided in the Indenture. The principal of (and premium, if any) and the interest on this Note shall be payable at the office or agency of the Trustee maintained for that purpose in any coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts.
Accrued interest that is not paid on the applicable Interest Payment Date will bear additional interest on the amount thereof at the Coupon Rate, compounded semi-annually and computed on the basis of a 360-day year of twelve 30-day months and the actual days elapsed in a partial month in such period.
This Note shall not be entitled to any benefit under the Indenture hereinafter referred to, be valid or become obligatory for any purpose until the Certificate of Authentication hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Note are continued on the reverse side hereof and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed on this [ ]th day of [ ], [ ].
INTERNATIONAL PAPER COMPANY
Title:
Attest:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
Dated_____________________
The Bank of New York,
as Trustee
By:________________________
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company (herein sometimes referred to as the "Notes"), specified in the Indenture, all issued or to be issued in one or more series under and pursuant to an Indenture dated as of April 12, 1999, duly executed and delivered between the Company and The Bank of New York as Trustee (the "Trustee"), as supplemented by the 81/8% Notes due July 8, 2005 Supplemental Indenture dated as of June 14, 2000, between the Company and the Trustee (the Indenture, as so supplemented, the "Indenture"), to which Indenture and all Indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Notes. By the terms of the Indenture, the Notes are issuable in series that may vary as to amount, date of maturity, rate of interest and in other respects as provided in the Indenture. This series of Notes is initially offered in aggregate principal amount as specified in said Supplemental Indenture.
The Company shall have the right to redeem this Note at the option of the Company, without premium or penalty, in whole or in part (an "Optional Redemption"), at a redemption price (the "Optional Redemption Price") equal to the greater of:
(i) 100% of the principal amount plus accrued and unpaid interest to the Redemption Date; or
(ii) the sum of the present values of the remaining scheduled payments of principal and interest (exclusive of interest accrued to the Redemption Date) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points plus accrued interest on the principal amount being redeemed to the Redemption Date.
Any redemption pursuant to the preceding paragraph will be made upon not less than 30 nor more than 60 days prior notice before the Redemption Date to the Holders, at the Optional Redemption Price. If the Notes are only partially redeemed by the Company pursuant to an Optional Redemption, the Notes will be redeemed pro rata or by lot or by any other method utilized by the Trustee; provided that if at the time of redemption the Notes are registered as a Global Note, the Depositary shall determine, in accordance with its procedures, the principal amount of such Notes held by each Holder of Notes to be redeemed.
In the event of redemption of this Note in part only, a new Note or Notes of this series for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.
[In the event that a Registration Default (as defined in the Registration Rights Agreement) occurs, then the Company shall pay additional interest (in addition to the interest otherwise due hereon) ("Additional Interest") to the Holder during the period immediately following the occurrence of any such Registration Default in an amount equal to 0.25% per annum (regardless of the number of Registration Defaults) from and including the date on which any such Registration Default shall occur (subject to the terms of the Registration Rights Agreement) to but excluding the date on which all such Registration Defaults have been cured. The Company shall pay amounts due in respect of Additional Interest on each Interest Payment Date (or, if the Company shall default in the payment of interest on any Interest Payment Date, on the date such interest is otherwise paid as provided in the Indenture).]1
[There shall also be payable in respect of this Note all Additional Interest that may have accrued on the Note for which this Note was exchanged (as defined in such Note) pursuant to the Exchange Offer, such Additional Interest to be calculated in accordance with the terms of such Note and payable at the same time and in the same manner as periodic interest on this Note.]2
In case an Event of Default, as defined in the Indenture, shall have occurred and be continuing, the principal of all of the Notes may be declared, and
2 To be included in Exchange Notes.
upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes of each series affected at the time outstanding, as defined in the Indenture, to execute supplemental indentures for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Notes; provided, however, that no such supplemental indenture shall (i) extend the fixed maturity of any Notes of any series, or reduce the principal amount thereof, or reduce the rate or extend the time of payment of interest thereon, or reduce any premium payable upon the redemption thereof, without the consent of the Holder of each Note so affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of which are required to consent to any such supplemental indenture, without the consent of the Holders of each Note then outstanding and affected thereby. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Notes of any series at the time outstanding affected thereby, on behalf of all of the Holders of the Notes of such series, to waive any past default in the performance of any of the covenants contained in the Indenture, or established pursuant to the Indenture with respect to such series, and its consequences, except a default in the payment of the principal of or premium, if any, or interest on any of the Notes of such series. Any such consent or waiver by the registered Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and of any Note issued in exchange therefor or in place hereof (whether by registration of transfer or otherwise), irrespective of whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note at the time and place and at the rate and in the money herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, this Note is transferable by the registered Holder hereof on the Security Register of the Company, upon surrender of this Note for registration of transfer at the office or agency of the Trustee in the City and State of New York accompanied by a written instrument or instruments of transfer in form satisfactory to the Company or the Trustee duly executed by the registered Holder hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of authorized denominations and for the same aggregate principal amount and series will be issued to the designated transferee or transferees. No service charge will be made for any such transfer, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee, any paying agent and the Security Registrar may deem and treat the registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notice of ownership or writing hereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal hereof and premium, if any, and interest due hereon and for all other purposes, and neither the Company nor the Trustee nor any paying agent nor any Security Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if any, or the interest on this Note, or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
The Notes of this series are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. This Global Note is exchangeable for Notes in definitive form only under certain limited circumstances set forth in the Indenture. As provided in the Indenture and subject to certain limitations herein and therein set forth, Notes of this series so issued are exchangeable for a like aggregate principal amount of Notes of this series of a different authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE NOTES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
By:___________________________
Date:_________________________
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date which is the earlier of (i) the date of an effective Registration or (ii) two years (or such lesser period as may be provided in any amendment to Rule 144(k) under the Securities Act) after the later of the original issuance of this Note or the last date on which this Note was held by the Company or an Affiliate of the Company, the undersigned confirms that without utilizing any general solicitation or general advertising that this Note is being transferred in accordance with its terms:
[Check One]
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under the
Securities Act of 1933; or
(3) [ ] in the United States to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act of 1933)
that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that
such transfer is being made in reliance on Rule 144A, in
each case pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(4) [ ] outside the United States in an offshore transaction within
the meaning of Regulation S under the Securities Act in
compliance with Rule 904 under the Securities Act of 1933;
or
(5) [ ] pursuant to the exemption from registration provided by
Rule 144 under the Securities Act of 1933.
|
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered holder thereof, provided, however, that if box (4) or (5) is checked, the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
Signature Guarantee:
Signatures must be guaranteed by an "eligible guarantor institution" meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities and Exchange Act of 1934, as amended.
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a "qualified institutional buyer" within the meaning of Rule 144A under the Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned's foregoing representations in order to claim the exemption from registration provided by Rule 144A.
Dated: ___________ ______________________________________
NOTICE: To be executed by an executive
officer
|
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Signature of
Amount of decrease in Amount of increase in Principal Amount of this authorized signatory of
Date of Principal Amount of Principal Amount of Global Note following such Trustee or Securities
Exchange this Global Note this Global Note decrease or increase Custodian
-------- --------------------- --------------------- -------------------------- -----------------------
|
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances.
(a) Notes in the initial aggregate principal amount of $ 1,000,000,000 may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Notes to or upon the written order of the Company, signed by its Chairman, its Vice Chairman, its President, or any Vice President and its Treasurer or an Assistant Treasurer, without any further action by the Company.
(b) The Company may, without notice to or the consent of the Holders of the Notes, issue additional notes of the same tenor as the Notes, so that such additional notes and the Notes shall form a single series. Any such Notes referred to in this Section 6.01(b) will be issued under a further supplemental indenture.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
SECTION 7.02. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
SECTION 7.03. Governing Law.
This Supplemental Indenture and each Note shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws.
SECTION 7.04. Separability.
In case any one or more of the provisions contained in this Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of the Notes, but this Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 7.05. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, on the date or dates indicated in the acknowledgments and as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By /s/ Tobin Treichel
---------------------------------
Name: Tobin Treichel
Title: Vice President - Finance
[Seal]
Attest:
By: /s/ Barbara L. Smithers
-------------------------------
THE BANK OF NEW YORK
as Trustee
|
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, on the date or dates indicated in the acknowledgments and as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
Title:
[Seal]
Attest:
THE BANK OF NEW YORK
as Trustee
By /s/ Ming J. Shiang --------------------------------- Name: MING J. SHIANG Title: Vice President |
CREDIT AGREEMENT
dated as of
June 14, 2000
among
INTERNATIONAL PAPER COMPANY
INTERNATIONAL PAPER FINANCIAL SERVICES, INC.
The LENDERS Party Hereto
and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH
as Administrative Agent, Lead Arranger and Book Manager
$3,050,000,000
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms..................................................1
SECTION 1.02 Classification of Loans and Borrowings........................16
SECTION 1.03 Terms Generally...............................................16
SECTION 1.04 Accounting Terms and Determinations...........................16
ARTICLE II
THE CREDITS
SECTION 2.01 The Commitments...............................................17
SECTION 2.02 Loans and Borrowings..........................................18
SECTION 2.03 Requests for Syndicated Borrowings............................19
SECTION 2.04 Competitive Bid Procedure.....................................20
SECTION 2.05 Funding of Borrowings.........................................22
SECTION 2.06 Interest Elections............................................23
SECTION 2.07 Termination and Changes of Commitments........................24
SECTION 2.08 Repayment of Loans; Evidence of Debt..........................25
SECTION 2.09 Prepayment of Loans...........................................26
SECTION 2.10 Fees..........................................................27
SECTION 2.11 Interest......................................................28
SECTION 2.12 Alternate Rate of Interest....................................29
SECTION 2.13 Increased Costs...............................................30
SECTION 2.14 Break Funding Payments........................................31
SECTION 2.15 U.S. Taxes....................................................32
SECTION 2.16 [Intentionally omitted.]......................................33
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs...33
SECTION 2.18 Mitigation Obligations; Replacement of Lenders................35
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 Corporate Existence...........................................36
SECTION 3.02 Financial Condition...........................................36
SECTION 3.03 Litigation....................................................37
SECTION 3.04 No Breach.....................................................37
SECTION 3.05 Corporate Action of the Borrowers.............................37
SECTION 3.06 Approvals.....................................................37
i
|
SECTION 3.07 Use of Loans..................................................38
SECTION 3.08 ERISA.........................................................38
SECTION 3.09 Taxes.........................................................38
SECTION 3.10 Investment Company Act........................................38
SECTION 3.11 Public Utility Holding Company Act............................38
SECTION 3.12 Credit Agreements.............................................38
SECTION 3.13 Hazardous Materials and Environmental Matters.................39
SECTION 3.14 Full Disclosure...............................................39
SECTION 3.15 Federal Margin Regulations....................................40
SECTION 3.16 Solvency......................................................40
SECTION 3.17 Exchange Offer and Merger.....................................40
ARTICLE IV
GUARANTEE
SECTION 4.01 Guarantee.....................................................42
SECTION 4.02 Obligations Unconditional.....................................42
SECTION 4.03 Reinstatement.................................................43
SECTION 4.04 Subrogation...................................................43
SECTION 4.05 Remedies......................................................44
SECTION 4.06 Continuing Guarantee..........................................44
ARTICLE V
CONDITIONS
SECTION 5.01 Closing Date..................................................44
SECTION 5.02 Term Loan Borrowing Conditions................................46
SECTION 5.03 Each Credit Event.............................................47
ARTICLE VI
COVENANTS OF THE COMPANY
SECTION 6.01 Financial Statements..........................................48
SECTION 6.02 Litigation....................................................50
SECTION 6.03 Corporate Existence, Etc......................................50
SECTION 6.04 Insurance.....................................................51
SECTION 6.05 Use of Proceeds...............................................51
SECTION 6.06 Consummation of the Merger....................................51
SECTION 6.07 Prohibition of Fundamental Changes............................51
SECTION 6.08 Limitation on Liens...........................................52
SECTION 6.09 Amendments to Merger Agreement and the Exchange Offer
Documents...................................................54
SECTION 6.10 Total Debt to Total Capital Ratio.............................54
ii
|
SECTION 6.11 Minimum Consolidated Net Worth................................54
ARTICLE VII
EVENTS OF DEFAULT
ARTICLE VIII
THE ADMINISTRATIVE AGENT
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices.......................................................60
SECTION 9.02 Waivers; Amendments...........................................60
SECTION 9.03 Expenses; Indemnity; Damage Waiver............................61
SECTION 9.04 Successors and Assigns........................................62
SECTION 9.05 Survival......................................................66
SECTION 9.06 Counterparts; Integration; Effectiveness......................66
SECTION 9.07 Severability..................................................66
SECTION 9.08 Right of Setoff...............................................67
SECTION 9.09 Governing Law; Jurisdiction; Etc..............................67
SECTION 9.10 Judgment Currency.............................................68
SECTION 9.11 Waiver Of Jury Trial..........................................68
SECTION 9.12 Headings......................................................68
SECTION 9.13 Treatment of Certain Information; Confidentiality.............68
SCHEDULE I - Commitments
SCHEDULE II - Material Agreements
EXHIBIT A - Form of Assignment and Acceptance
EXHIBIT B-1 - Form of Opinion of Counsel to the Company
EXHIBIT B-2 - Form of Opinion of Special New York Counsel to the
Company
|
CREDIT AGREEMENT dated as of June 14, 2000, among INTERNATIONAL PAPER COMPANY, a New York corporation (the "Company"), INTERNATIONAL PAPER FINANCIAL SERVICES, INC., a Delaware corporation (the "Subsidiary Borrower"), the LENDERS party hereto, and CREDIT SUISSE FIRST BOSTON, a bank organized under the laws of Switzerland, acting through its New York Branch, as administrative agent for the Lenders hereunder (in such capacity, the "Administrative Agent"), Lead Arranger and Book Manager.
The Company has requested that the Lenders (as hereinafter defined) make (i) revolving credit loans from time to time on and after the Closing Date (as hereinafter defined) to the Company in an aggregate principal amount not exceeding $1,750,000,000 at any one time outstanding and (ii) term loans on the Term Loan Funding Date to the Subsidiary Borrower in an aggregate principal amount not in excess of $1,300,000,000. The Lenders are prepared to make such loans upon the terms and conditions hereof, and, accordingly, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means the acquisition of Champion by the Company in accordance with the Merger Agreement and the Exchange Offer.
"Acquisition Transaction" has the meaning assigned to such term in Section 3.17(a).
"Acquico" means Condor Acquisition Corporation, a Delaware corporation and wholly owned Subsidiary of the Company.
"Adjusted LIBO Rate" means, for the Interest Period for any Eurodollar Borrowing, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate for such Interest Period.
"Administrative Agent" has the meaning assigned to such term in the first paragraph of this Agreement.
"Administrative Questionnaire" means an administrative questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate for such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate or the Federal Funds Effective Rate, as the case may be.
"Applicable Rate" means, for any day, with respect to (a) any Eurodollar Loan or ABR Loan which is a Term Loan, the applicable rate per annum set forth below under the caption "Eurodollar Loan" or "ABR Loan" below under the caption "Term Loan," (b) any Eurodollar Loan or ABR Loan which is a Revolving Credit Loan, the applicable rate per annum set forth below under the caption "Eurodollar Loan" or "ABR Loan" below under the caption "Revolving Credit Loan," (c) any Facility Fee, the applicable rate per annum set forth below under the caption "Facility Fee" and (d) any utilization fee, the applicable rate per annum set forth below under the caption "Utilization Fee," in each case based upon the long-term debt ratings by Moody's and S&P, respectively, applicable on such date to the Index Debt:
================================================================================ Long-Term Debt Term Loan Revolving Credit Loan Rating Eurodollar ABR Eurodollar ABR Facility Utilization (S&p/mOODY'S) Loan Loan Loan Loan Fee Fee -------------------------------------------------------------------------------- Level I 50 bps 0 bps 31.5 bps 0 bps 6 bps 12.5 bps A/A2 Level II 62.5 bps 0 bps 42 bps 0 bps 8 bps 12.5 bps A-/A3 Level III 75 bps 0 bps 52.5 bps 0 bps 10 bps 12.5 bps Level IV 100 bps 0 bps 62.5 bps 0 bps 12.5 bps 25 bps Level V 125 bps 25 bps 85 bps 0 bps 15 bps 25 bps Level VI 175 bps 75 bps 125 bps 25 bps 25 bps 25 bps Less than Level V ================================================================================ |
provided that, (A) for purposes of the foregoing, in the event the Index Debt receives a split rating from Moody's and S&P, the applicable level shall be (1) the level with the higher of such ratings in the event such ratings are one level apart, (2) the level at midpoint (if any) in the event such ratings are two or more levels apart and (3) the higher of the two intermediate ratings in the event there is no midpoint rating; (B) if at any time the Index Debt is rated at or above either of the long term debt ratings by Moody's or
S&P set forth in Level I above, the Applicable Rate as set forth in Level I will apply; (C) if at any time the Index Debt is rated below both the Moody's and S&P ratings set out in Level V above or has a rating in effect with neither Moody's nor S&P (other than by reason of the circumstances referred to in the last sentence of this definition), the Applicable Rate as set forth in Level VI will apply; (D) if at any time either Moody's or S&P shall not have in effect a rating for the Index Debt, the Applicable Rate shall be determined solely by the rating for the Index Debt established by the rating agency that does have a rating for the Index Debt then in effect; (E) if at any time the ratings established or deemed to have been established by Moody's and S&P for the Index Debt shall be changed (other than as a result of a change in the rating system of Moody's or S&P), such change shall be effective as of the date on which it is first announced by the applicable rating agency; and (F) if any Event of Default shall have occurred and be continuing, each of Moody's and S&P shall be deemed to have established a rating in the lowest category in the schedule above. Each change in the Applicable Rate shall apply during the period commencing on the effective date of such change and ending on the date immediately preceding the effective date of the next such change. If the rating system of Moody's or S&P shall change, or if either such rating agency shall cease to be in the business of rating corporate debt obligations, the Company (on its own behalf and on behalf of the Subsidiary Borrower) and the Lenders shall negotiate in good faith to amend this definition to reflect such changed rating system or the unavailability of ratings from such rating agency and, pending the effectiveness of any such amendment, the Applicable Rate shall be determined by reference to the rating most recently in effect prior to such change or cessation.
"Assignment and Acceptance" means an agreement pursuant to which a Lender assigns all or a portion of its rights and obligations hereunder to an assignee and such assignee agrees to be bound by all of the obligations of a Lender hereunder to the extent of such assignment, in the form of Exhibit A or such other form as shall be approved by the Administrative Agent.
"Board" means the Board of Governors of the Federal Reserve System of the United States of America (or any successor).
"Borrower" means either the Company or the Subsidiary Borrower.
"Borrowing" means (a) all Term Loans of the same Type incurred on the Term Loan Funding Date (or resulting from continuations or conversions on a given date after the Term Loan Funding Date) and having, in the case of Eurodollar Term Loans, the same Interest Period, (b) all Revolving Credit Loans of the same Type incurred on a given date (or resulting from continuations or conversions on a given date) and having, in the case of Eurodollar Revolving Credit Loans, the same Interest Period, or (c) all Competitive Loans of the same Type incurred on a given date and having the same Interest Period (or any single Competitive Loan that does not have the same Interest Period as any other Competitive Loan of the same Type). For purposes hereof, the date of a Syndicated Borrowing comprised of one or more Loans that have been converted or
continued shall be the effective date of the most recent conversion or continuation of such Loan or Loans.
"Borrowing Request" means a request by a Borrower for a Syndicated Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term "Business Day" shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.
"Capital Lease Obligations" means, as to any Person, the obligations of such Person to pay rent or other amounts under a lease of (or other agreement conveying the right to use) real and/or personal property which obligations are required to be classified and accounted for as a capital lease on a balance sheet of such Person under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board) and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP (including such Statement No. 13).
"CSFB" means Credit Suisse First Boston.
"Champion" means Champion International Corporation, a New York corporation.
"Champion Shares" means the common stock, par value of $0.50 per share, of Champion.
"Change in Law" means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.13(b), by any lending office of such Lender or by such Lender's holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are Term Loans, Revolving Credit Loans or Competitive Loans.
"Closing Date" means the date on which each of the conditions specified in
Section 5.01 are satisfied (or waived in accordance with Section 9.02).
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Commitment" means a Term Loan Commitment or a Revolving Credit Commitment.
"Company" means International Paper Company, a New York corporation.
"Competitive", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are made pursuant to Section 2.04.
"Competitive Bid" means an offer by a Lender to make a Competitive Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the Margin or the Fixed Rate, as applicable, offered by the Lender making such Competitive Bid.
"Competitive Bid Request" means a request by the Company for Competitive Bids in accordance with Section 2.04.
"Confidential Information Memorandum" means the Confidential Information Memorandum of the Company dated May 2000 delivered to the Lenders in connection with this Agreement.
"Consolidated Net Worth" means, at any time, the sum of the following for the Company and its Consolidated Subsidiaries determined on a consolidated basis (without duplication) in accordance with GAAP:
(a) the amount of capital stock; plus
(b) the amount of surplus and retained earnings (or, in the case of a surplus or retained earnings deficit, minus the amount of such deficit); minus
(c) the cost of treasury shares.
"Consolidated Subsidiary" means, as to any Person, each Subsidiary of such Person (whether now existing or hereafter created or acquired) the financial statements of which shall be (or should have been) consolidated with the financial statements of such Person in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Debt Issuance" means the issuance by the Company of senior, unsecured debt securities in the capital markets.
"Default" means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
"Dollars" or "$" refers to lawful money of the United States of America.
"Environmental Laws" means any and all Federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time.
"ERISA Affiliate" means any corporation or trade or business which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Company or is under common control (within the meaning of Section 414(c) of the Code) with the Company.
"Eurodollar", when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans constituting such Borrowing, are bearing interest at a rate determined by reference to (a) in the case of a Revolving Credit Loan or Borrowing or a Term Loan or Borrowing, the applicable Adjusted LIBO Rate, or (b) in the case of a Competitive Loan or Borrowing, the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article VII.
"Exchange Offer" means the exchange offer by the Company for the outstanding Champion Shares (and associated rights to purchase preferred stock) pursuant to the Offer to Exchange.
"Exchange Offer Statements" means, collectively, (i) the Company's Tender Offer Statement, dated May 19, 2000, on Schedule 14D-1 of the Securities and Exchange Commission, as thereafter amended from time to time in accordance with the terms hereof and (ii) the Company's Registration Statement on Form S-4 filed on May 19, 2000 with the Securities and Exchange Commission, in each case together with all schedules, exhibits and annexes attached thereto and all documents incorporated therein by reference, as such Statements may thereafter be amended from time to time in accordance with the terms hereof.
"Excluded Taxes" means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any
obligation of either Borrower hereunder, (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America, or by the
jurisdiction under the laws of which such recipient is organized or in which
its principal office is located or, in the case of any Lender, in which its
applicable lending office is located, (b) any branch profits taxes imposed by
the United States of America or any similar tax imposed by any other
jurisdiction in which such Borrower is located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to a request by the Company under
Section 2.18(b)), any withholding tax that is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement or is attributable to such Foreign Lender's failure or inability to
comply with Section 2.15(e), except to the extent that such Foreign Lender's
assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from such Borrower with respect to such withholding tax
pursuant to Section 2.15(a).
"Federal Funds Effective Rate" means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain letter agreement dated May 22, 2000 between the Company and the Administrative Agent with respect to certain fees due and payable to the Administrative Agent and the other agent banks party hereto.
"Fixed Rate" means, with respect to any Competitive Loan (other than a Competitive Eurodollar Loan), the fixed rate of interest per annum specified by the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed Rate.
"Foreign Jurisdiction" means any jurisdiction other than the United States of America, a State thereof, the District of Columbia or any political subdivision of any of the foregoing.
"Foreign Lender" means any Lender that is organized under the laws of a Foreign Jurisdiction.
"GAAP" means generally accepted accounting principles applied on a basis consistent with those which, in accordance with Section 1.04, are to be used in making the calculations for purposes of determining compliance with the terms of this Agreement.
"Governmental Authority" means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.
"Guarantee" means a guarantee, an endorsement, a contingent agreement to purchase or to furnish funds for the payment or maintenance of, or otherwise to be or become contingently liable under or with respect to, the Indebtedness, other obligations, net worth, working capital or earnings of any Person, or a guarantee of the payment of dividends or other distributions upon the stock of any corporation, or an agreement to purchase, sell or lease (as lessee or lessor) property, products, materials, supplies or services primarily for the purpose of enabling a debtor to make payment of his, her or its obligations or an agreement to assure a creditor against loss, and including causing a bank to open a letter of credit for the benefit of another Person, but excluding endorsements for collection or deposit in the ordinary course of business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a correlative meaning.
"Guaranteed Obligations" shall have the meaning assigned to such term in
Section 4.01(a).
"Guarantor" means the Company in its capacity as the guarantor under Article IV.
"Indebtedness" means, as to any Person: (a) indebtedness created, issued
or incurred by such Person for borrowed money (whether by loan or the issuance
and sale of debt securities); (b) obligations of such Person to pay the
deferred purchase or acquisition price of property or services, other than
trade accounts payable (other than for borrowed money) arising, and accrued
expenses incurred, in the ordinary course of business so long as such trade
accounts payable are payable within 90 days of the date the respective goods
are delivered or the respective services are rendered; (c) Indebtedness of
others secured by a Lien on the property of such Person, whether or not the
respective indebtedness so secured has been assumed by such Person; (d)
obligations of such Person in respect of letters of credit or similar
instruments issued or accepted by banks and other financial institutions for
the account of such Person; (e) Capital Lease Obligations of such Person; and
(f) Indebtedness of others Guaranteed by such Person.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for borrowed money of the Company that is not guaranteed by any other Person or subject to any other credit enhancement.
"Interest Election Request" means a request by either Borrower to convert
or continue any of their respective Syndicated Borrowings in accordance with
Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, each Quarterly Date, (b) with respect to any Eurodollar Loan, the last day of each Interest Period therefor and, in the case of any Interest Period for a Eurodollar Loan that is more than three months long, each day prior to the last day of such Interest Period that occurs at intervals of three months after the first day of such Interest Period and (c) with respect to any Fixed Rate Loan, the last day of the Interest Period therefor and, in the case of any Interest Period for a Fixed Rate Loan that is more than 90 days long (unless otherwise specified in the applicable Competitive Bid Request), each day prior to the last day of such Interest Period that occurs at intervals of 90 days after the first day of such Interest Period, and any other dates that are specified in the applicable Competitive Bid Request as Interest Payment Dates with respect to such Loan.
"Interest Period" means:
(a) for any Borrowing (other than an ABR Borrowing), the Interest Period of the Loan or Loans constituting such Borrowing;
(b) for any Syndicated Eurodollar Loan, the period commencing on the date of such Loan and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as specified in the applicable Borrowing Request or Interest Election Request;
(c) for any Competitive Eurodollar Loan, the period commencing on the date of such Loan and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as specified in the applicable Competitive Bid Request; and
(d) for any Fixed Rate Loan, the period (which shall not be less than 7 days or more than 360 days) commencing on the date of such Loan and ending on the date specified in the applicable Competitive Bid Request;
provided, that (i) if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the immediately preceding Business Day and
(ii) any Interest Period pertaining to a Eurodollar Borrowing that commences on
the last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Loan initially shall be the
date on which such Loan is made and, in the case of a Syndicated Loan,
thereafter shall be the effective date of the most recent conversion or
continuation of such Loan.
"Lenders" means the Persons listed on Schedule I and any other Person that shall have become a party hereto pursuant to an Assignment and Acceptance, other
than any such Person that ceases to be a party hereto pursuant to an Assignment and Acceptance.
"LIBO Rate" means, for the Interest Period for any Eurodollar Borrowing, the rate appearing on Page 3750 of the Dow Jones Markets (Telerate) Service (or on any successor or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to Dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for the offering of Dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the LIBO Rate for such Interest Period shall be the rate at which Dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.
"Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. For purposes of this Agreement, the Company or any of its Subsidiaries shall be deemed to own subject to a Lien any asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.
"Loans" means the loans made by the Lenders to the Borrowers pursuant to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be added to or subtracted from the LIBO Rate to determine the rate of interest applicable to such Loan, as specified by the Lender making such Loan in its related Competitive Bid.
"Margin Stock" means margin stock within the meaning of Regulations U and X.
"Material Adverse Effect" means a material adverse change, or any condition or event that could reasonably be expected to result in a material adverse change, in (i) the business, assets, results of operations or financial condition of the Company and its Consolidated Subsidiaries, or (ii) the validity or enforceability of this Agreement or any of the documents entered into in connection with the Transactions or the rights, remedies and benefits available to the parties hereunder or the ability of the Company, Acquico or Champion to consummate the Transactions.
"Material Subsidiaries" means, at any time, (a) the Subsidiary Borrower and, until the Merger becomes effective, Acquico and (b) any Subsidiary of the Company that has total assets (as shown on the most recent balance sheet of such Subsidiary prepared in accordance with generally accepted accounting principles) of $150,000,000 or more.
"Merger" means the merger of Acquico with and into Champion pursuant to the Merger Agreement, with the surviving entity of the merger being a Wholly Owned Subsidiary of the Company.
"Merger Agreement" means the Agreement and Plan of Merger dated as of May 12, 2000 among Champion, the Company and Acquico.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan defined as such in Section 3(37) of ERISA to which contributions have been made by the Company or any ERISA Affiliate and which is covered by Title IV of ERISA.
"Obligors" means the Borrowers and the Guarantor.
"Offer to Exchange" means the offer to exchange each outstanding Champion Shares (including the associated rights to purchase preferred stock) for shares of common stock of the Company having a value of $25 and $50 in cash, dated May 19, 2000, as thereafter amended from time to time in accordance with the terms thereof.
"Other Taxes" means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.
"Person" means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.
"Plan" means any employee benefit or other plan established or maintained by the Company or any ERISA Affiliate and which is covered by Title IV of ERISA, other than a Multiemployer Plan.
"Prime Rate" means the rate of interest per annum publicly announced from time to time by CSFB as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.
"Project Indebtedness" means Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or development of Project Assets (as defined in Section 6.08(i)); provided that (x) such Indebtedness is non-recourse to any other assets and (y) the aggregate principal amount of such Indebtedness may at no time exceed $425,000,000.
"Quarterly Dates" means the last Business Day of March, June, September and December in each year, the first of which shall be the first such day after the date hereof.
"Refinancing" means the refinancing of existing indebtedness of the Company and Champion required to be repaid by the terms thereof as a result of the Acquisition.
"Register" has the meaning set forth in Section 9.04.
"Regulations D, U and X" means, respectively, Regulations D, U and X of the Board, as the same may be amended or supplemented from time to time.
"Related Parties" means, with respect to any specified Person, such Person's Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Syndicated Loans and unused Commitments representing more than 50% of the sum of the total Syndicated Loans and unused Commitments at such time (provided that, and for all purposes after the Loans become due and payable pursuant to Article VII or the Revolving Credit Commitments expire or terminate, the outstanding Competitive Loans of the Lenders shall be included as Syndicated Loans in determining the Required Lenders).
"Revolving Credit Commitment" shall mean, (a) in the case of each Lender
that is a Lender on the date hereof, the amount set forth opposite such
Lender's name on Schedule I as such Lender's "Revolving Credit Commitment" and
(b) in the case of any Lender that becomes a Lender after the date hereof, the
amount specified as such Lender's " Revolving Credit Commitment" in the
Assignment and Acceptance pursuant to which such Lender assumed a portion of
the Total Revolving Credit Commitment, in each case as the same may be changed
from time to time pursuant to the terms hereof. The initial aggregate amount of
the Lenders' Revolving Credit Commitments is $1,750,000,000.
"Revolving Credit Commitment Termination Date" shall mean a date that is 364 days after the Closing Date, or, if such date is not a Business Day, the immediately preceding Business Day.
"Revolving Credit Exposure" means, with respect to any Lender at any time, the aggregate outstanding principal amount of such Lender's Revolving Credit Loans at such time.
"Revolving Credit Loan" has the meaning assigned to such term in Section 2.01(b).
"Revolving Period" means the period from and including the Closing Date to but excluding the earlier of the Revolving Credit Commitment Termination Date and the date of termination of the Total Revolving Credit Commitment.
"S&P" means Standard & Poor's Ratings Services, a Division of The McGraw-Hill Companies, Inc.
"Solvent" means, as to any Person, that, as of any date of determination,
(i) the amount of the "present fair saleable value" of the assets of such
Person shall, as of such date, exceed the amount of all "liabilities of such
Person, contingent or otherwise", as of such date, as such terms are determined
in accordance with applicable federal and state laws governing determinations
of the insolvency of debtors, (ii) the present fair saleable value of the
assets of such Person shall, as of such date, be greater than the amount that
will be required to pay the liability of such Person on its debts as such debts
become absolute and matured, (iii) such Person will not have, as of such date,
an unreasonably small amount of capital with which to conduct its business, and
(iv) such Person shall be able to pay its debts as they mature. For purposes of
this definition, (a) "debt" means liability on a "claim", and (b) "claim" means
any (A) right to payment, whether or not such a right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed,
undisputed, legal, equitable, secured or unsecured or (B) right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.
"Statutory Reserve Rate" means, for the Interest Period for any Eurodollar Borrowing, a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the arithmetic mean, taken over each day in such Interest Period, of the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject for eurocurrency funding (currently referred to as "Eurocurrency liabilities" in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
"Subsidiary" means, as to any Person, (a) any corporation of which at least a majority of the outstanding shares of stock whose class or classes have by the terms thereof ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person and
(b) any partnership or other entity in which such Person and/or one or more
Subsidiaries of such Person shall have an ownership or controlling interest
(whether in the form of voting or participation in profits or capital
contribution) of more than 50%. For the avoidance of doubt, Champion will be a
Subsidiary of the Company on and after the Term Loan Funding Date.
"Subsidiary Borrower" means International Paper Financial Services, Inc., a Delaware corporation and a Wholly Owned Subsidiary of the Company.
"Syndicated Borrowing" means a Borrowing of Term Loans or Revolving Credit Loans.
"Syndicated Loan" means a Term Loan or a Revolving Credit Loan.
"Tangible Assets" means, at any time, Total Assets minus the sum of the following: cost of treasury shares and the book value of all assets of the Company and its Consolidated Subsidiaries which should be classified as intangibles (without duplication of deductions in respect of items already deducted in arriving at surplus and retained earnings) but in any event including goodwill, research and development costs, trademarks, trade names, copyrights, patents and franchises, unamortized debt discount and expense, and any write-up in the book value of assets resulting from a revaluation thereof subsequent to March 31, 2000 (other than any write-up, at the time of its acquisition, in the book value of any asset acquired subsequent to March 31, 2000).
"Taxes" means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.
"Term Loan" has the meaning assigned to such term in Section 2.01(a).
"Term Loan Funding Date" means the date on which the Term Loans are made hereunder.
"Term Loan Commitment" shall mean, (a) in the case of each Lender that is a Lender on the date hereof, the amount set forth opposite such Lender's name on Schedule I as such Lender's "Term Loan Commitment" and (b) in the case of any Lender that becomes a Lender after the date hereof, the amount specified as such Lender's "Term Loan Commitment" in the Assignment and Acceptance pursuant to which such Lender assumed a portion of the Total Term Loan Commitment, in each case as the same may be changed from time to time pursuant to the terms hereof. The initial aggregate amount of the Lenders' Term Loan Commitments is $1,300,000,000.
"Term Loan Commitment Expiration Date" shall mean the tenth Business Day after the Closing Date.
"Term Loan Maturity Date" shall mean the second anniversary of the Closing Date, or, if such date is not a Business Day, the immediately preceding Business Day.
"Term Loan Period" means the period from and including the Closing Date to and including the earlier of the Term Loan Funding Date and the Term Loan Commitment Expiration Date.
"Total Assets" means, at any time, the total assets of the Company and its Consolidated Subsidiaries at such time determined on a consolidated basis (without duplication) in accordance with GAAP.
"Total Capital" means, at any date, Consolidated Net Worth plus Total Debt
plus (i) the amount of the minority interest in Carter Holt Harvey, Ltd. and
(ii) the amount of the minority interest represented by the Tax Deductible
Convertible Preferred issued by International Paper Capital Trust, each
determined as of such date.
"Total Credit Exposure" means, on any date, the sum of (a) the Total Revolving Credit Commitment, (b) the Total Term Loan Commitment and (c) the outstanding principal amount of all Term Loans on such date. If the Revolving Credit Commitments have terminated or expired, the Total Credit Exposure shall be determined based upon the Revolving Credit Commitments most recently in effect, giving effect to any assignments.
"Total Debt" means, at any time, the aggregate outstanding principal amount of all Indebtedness of the Company and its Consolidated Subsidiaries at such time determined on a consolidated basis (without duplication) in accordance with GAAP.
"Total Revolving Credit Commitment" shall mean the sum of the Revolving Credit Commitments of all Lenders.
"Total Term Loan Commitment" shall mean the sum of the Term Loan Commitments of all Lenders.
"Transactions" means collectively, the Acquisition Transactions, the Refinancing and the other transactions contemplated hereby.
"Type", when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans constituting such Borrowing, is determined by reference to the Adjusted LIBO Rate, the Alternate Base Rate or, in the case of a Competitive Loan or Borrowing, the LIBO Rate or a Fixed Rate.
"Wholly Owned Subsidiary" means, as to any Person, any Subsidiary of such Person all of the shares or ownership interests of which, other than (in the case of a corporation) directors' qualifying shares, are owned or controlled by such Person and/or any of its Wholly Owned Subsidiary.
SECTION 1.02 Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a "Syndicated Loan"), by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a "Syndicated Eurodollar Loan"). Borrowings also may be classified and referred to by Class (e.g., a "Syndicated Borrowing"), by Type (e.g., a "Eurodollar Borrowing") or by Class and Type (e.g., a "Syndicated Eurodollar Borrowing").
SECTION 1.03 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words "include", "includes" and "including" shall be deemed to be followed by the phrase "without limitation". The word "will" shall be construed to have the same meaning and effect as the word "shall". Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person's successors and assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words "asset" and "property" shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
SECTION 1.04 Accounting Terms and Determinations.
(a) Accounting Terms. Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all financial statements
and certificates and reports as to financial matters required to be delivered
to the Lenders hereunder shall (unless otherwise disclosed to the Lenders in
writing at the time of delivery thereof in the manner described in subsection
(b) below) be prepared in accordance with generally accepted accounting
principles applied on a basis consistent with that used in the preparation of
the latest financial statements furnished to the Lenders hereunder (which,
until the first financial statements are delivered under Section 6.01, shall
mean the financial statements referred to in Section 3.02). All calculations
made for the purposes of determining compliance with this Agreement shall
(except as otherwise expressly provided herein) be made by application of
generally accepted accounting principles applied on a basis consistent with
that used in the preparation of the latest annual or quarterly financial
statements furnished to the Lenders pursuant to Section 6.01 unless (i) the
Company shall have objected to determining such compliance on such basis at the
time of delivery of such financial statements or (ii) the Required Lenders
shall so object in writing within 30 days after delivery of such financial
statements, in either of which events such calculations shall be made on a
basis consistent with those used in the preparation of the latest financial
statements as to which such
objection shall not have been made (which, if objection is made in respect of the first financial statements delivered under Section 6.01, shall mean the financial statements referred to in Section 3.02).
(b) Descriptions of Material Variations. The Company shall deliver to the Lenders at the same time as the delivery of any annual or quarterly financial statement under Section 6.01 a description in reasonable detail of any material variation between the application of accounting principles employed in the preparation of such statement and the application of accounting principles employed in the preparation of the immediately preceding annual or quarterly financial statements as to which no objection has been made in accordance with the last sentence of paragraph (a) above and reasonable estimates of the difference between such statements arising as a consequence thereof.
(c) Changes of Fiscal Years. To enable the ready and consistent determination of compliance with the covenants set forth in Article VI, the Company will not change the last day of its fiscal year from December 31 of each year, or the last days of the first three fiscal quarters in each of its fiscal years from March 31, June 30 and September 30 of each year, respectively, without giving prior notice of such change to each Lender and the Administrative Agent.
ARTICLE II
THE CREDITS
SECTION 2.01 The Commitments.
(a) Term Loans. Subject to the terms and conditions set forth herein, each
Lender having a Term Loan Commitment severally agrees to make a term loan in
Dollars (each a "Term Loan" and, collectively, the "Term Loans") to the
Subsidiary Borrower, which Term Loans (i) shall be made at any one time during
the Term Loan Period, (ii) may, at the option of the Subsidiary Borrower, be
incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Term
Loans, provided that all Term Loans made by each of the Lenders pursuant to the
same Type of Borrowing shall, unless otherwise specifically provided herein,
consist entirely of Term Loans of the same Type, (iii) may be repaid in
accordance with the provisions hereof, but once repaid, may not be reborrowed,
(iv) shall not exceed for any such Lender the Term Loan Commitment of such
Lender and (v) shall not exceed in the aggregate the Total Term Loan
Commitment.
(b) Revolving Credit Loans. Subject to the terms and conditions set forth herein, each Lender with a Revolving Credit Commitment agrees to make loan or loans in Dollars (each a "Revolving Credit Loan" and, collectively, the "Revolving Credit Loans") to the Company, which Revolving Credit Loans (i) shall be made at any time and from time to time during the Revolving Period, (ii) may, at the option of the Company, be incurred and maintained as, and/or converted into, ABR Loans or Eurodollar Revolving
Credit Loans; provided that all Revolving Credit Loans made by each of the Lenders pursuant to the same Type of Borrowing shall, unless otherwise specifically provided herein, consist entirely of Revolving Credit Loans of the same Type, (iii) may be repaid and reborrowed in accordance with the provisions hereof, (iv) shall not exceed for any such Lender the Revolving Credit Commitment of such Lender and (v) shall not exceed in the aggregate the Total Revolving Commitment then in effect.
SECTION 2.02 Loans and Borrowings.
(a) Obligations of Lenders. Each Syndicated Loan shall be made as part of a Borrowing consisting of Term Loans or Revolving Credit Loans of the same Type made by the Lenders ratably in accordance with their respective Term Loan Commitments or Revolving Credit Commitments, as applicable. Each Competitive Loan shall be made in accordance with the procedures set forth in Section 2.04. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments and Competitive Bids of the Lenders are several and no Lender shall be responsible for any other Lender's failure to make Loans as required.
(b) Type of Loans. Subject to Section 2.12, (i) each Syndicated Borrowing shall be constituted entirely of ABR Loans or Eurodollar Loans as the respective Borrower may request in accordance herewith, and (ii) each Competitive Borrowing shall be constituted entirely of Eurodollar Loans or Fixed Rate Loans as the Company may request in accordance herewith. Each Lender at its option may make any Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement.
(c) Minimum Amounts; Limitation on Number of Borrowings. At the commencement of the Interest Period for any Syndicated Borrowing, such Borrowing shall be in an aggregate amount of $15,000,000 or a larger multiple of $1,000,000; provided that, in case of Revolving Credit Loans, an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Total Revolving Credit Commitment. Each Competitive Borrowing shall be in an aggregate amount equal to $5,000,000 or a larger multiple of $1,000,000. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time be more than a total of twenty Syndicated Eurodollar Borrowings outstanding under this Agreement.
(d) Limitations on Lengths of Interest Periods. Notwithstanding any other provision of this Agreement, (i) the Company shall not be entitled to request, or to elect to convert to or continue as a Eurodollar Borrowing, any Revolving Credit Borrowing if the Interest Period requested therefor would end after the Revolving Credit Commitment Termination Date and (ii) the Subsidiary Borrower shall not be entitled to request, or to elect to convert to or continue as a Eurodollar Borrowing, any Term Loan
Borrowing if the Interest Period requested therefor would end after the Term Loan Maturity Date.
SECTION 2.03 Requests for Syndicated Borrowings.
(a) To request the Borrowing of Term Loans, the Subsidiary Borrower shall notify the Administrative Agent of such request by telephone (1) in the case of a Syndicated Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (2) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the Subsidiary Borrower. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the Term Loans to be made;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether the Term Loans shall consist of ABR Loans and/or Eurodollar Loans;
(iv) if the Term Loans are to include Eurodollar Loans, the Interest Period therefor, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Syndicated Eurodollar Borrowing, then the Subsidiary Borrower shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing.
(b) To request a Borrowing of Revolving Credit Loans, the Company shall notify the Administrative Agent of such request by telephone (1) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (2) in the case of an ABR Borrowing, not later than 10:00 a.m., New York City time, on the date of the proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Borrowing Request in a form approved by the Administrative Agent and signed by the
Company. Each such telephonic and written Borrowing Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the Revolving Credit Loans to be made;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether the Revolving Credit Loans shall consist of ABR Loans and/or Eurodollar Revolving Credit Loans;
(iv) if the Revolving Credit Loans are to include Eurodollar Revolving Credit Loans, the Interest Period therefor, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing. If no Interest Period is specified with respect to any requested Eurodollar Borrowing, then the Company shall be deemed to have selected an Interest Period of one month's duration. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04 Competitive Bid Procedure.
(a) Requests for Bids by the Company. Subject to the terms and conditions set forth herein, from time to time during the Revolving Period, the Company may request Competitive Bids and may (but shall not have any obligation to) accept Competitive Bids and borrow Competitive Loans; provided that the sum of the total Revolving Credit Exposures plus the aggregate principal amount of outstanding Competitive Loans at any time shall not exceed the Total Revolving Credit Commitment. To request Competitive Bids, the Company shall notify the Administrative Agent of such request by telephone, in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, four Business Days before the date of the proposed Borrowing and, in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing; provided that the Company may in the aggregate submit up to (but not more than) three Competitive Bid Requests on the same day, and a Competitive Bid Request shall not be made within five Business Days after the date of any previous Competitive Bid Request, unless any and all such previous Competitive Bid Requests shall have been withdrawn or all Competitive Bids received in response thereto rejected. Each such telephonic Competitive Bid Request shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Competitive Bid Request in a form approved by the Administrative Agent and
signed by the Company. Each such telephonic and written Competitive Bid Request shall specify the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a Fixed Rate Borrowing;
(iv) the Interest Period for such Borrowing, which shall be a period contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the account to which funds are to be disbursed, which shall comply with the requirements of Section 2.05.
Promptly following receipt of a Competitive Bid Request in accordance with this Section, the Administrative Agent shall notify the Lenders of the details thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Making of Bids by Lenders. Each Lender may (but shall not have any obligation to) make one or more Competitive Bids in response to a Competitive Bid Request. Each Competitive Bid by a Lender must be in a form approved by the Administrative Agent and must be received by the Administrative Agent by telecopy, in the case of a Competitive Eurodollar Borrowing, not later than 9:30 a.m., New York City time, three Business Days before the proposed date of such Competitive Borrowing, and in the case of a Fixed Rate Borrowing, not later than 9:30 a.m., New York City time, on the proposed date of such Competitive Borrowing. Competitive Bids that do not conform substantially to the form approved by the Administrative Agent may be rejected by the Administrative Agent, and the Administrative Agent shall notify the applicable Lender of such rejection as promptly as practicable. Each Competitive Bid shall specify (i) the principal amount (which shall be $10,000,000 or a larger multiple of $1,000,000 and which may equal the entire principal amount of the Competitive Borrowing requested by the Company) of the Competitive Loan or Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Competitive Bid Rates at which the Lender is prepared to make such Loan or Loans (expressed as a percentage rate per annum in the form of a decimal to no more than four decimal places) and (iii) the Interest Period for each such Loan and the last day thereof.
(c) Notification of Bids by Administrative Agent. The Administrative Agent shall promptly notify the Company by telecopy of the Competitive Bid Rate and the principal amount specified in each Competitive Bid and the identity of the Lender that shall have made such Competitive Bid.
(d) Acceptance of Bids by the Company. Subject only to the provisions of this paragraph, the Company may accept or reject any Competitive Bid, and shall notify the Administrative Agent by telephone, confirmed by telecopy in a form
approved by the Administrative Agent, whether and to what extent the Company
has decided to accept or reject each Competitive Bid, in the case of a
Competitive Eurodollar Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before the date of the proposed Competitive
Borrowing, and in the case of a Fixed Rate Borrowing, not later than 10:30
a.m., New York City time, on the proposed date of the Competitive Borrowing;
provided, that (i) the failure of the Company to give such notice shall be
deemed to be a rejection of each Competitive Bid, (ii) the Company shall not
accept a Competitive Bid made at a particular Competitive Bid Rate if the
Company rejects a Competitive Bid made at a lower Competitive Bid Rate, (iii)
the aggregate amount of the Competitive Bids accepted by the Company shall not
exceed the aggregate amount of the requested Competitive Borrowing specified in
the related Competitive Bid Request, (iv) to the extent necessary to comply
with clause (iii) of this proviso, the Company may accept Competitive Bids at
the same Competitive Bid Rate in part, which acceptance, in the case of
multiple Competitive Bids at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such Competitive Bid, and (v) except
pursuant to clause (iv) of this proviso, no Competitive Bid shall be accepted
for a Competitive Loan unless such Competitive Loan is in a principal amount of
$10,000,000 or a larger multiple of $1,000,000; provided further that if a
Competitive Loan must be in an amount less than $10,000,000 because of the
provisions of clause (iv) of the first proviso of this paragraph, such
Competitive Loan may be in an amount of $1,000,000 or any multiple thereof, and
in calculating the pro rata allocation of acceptances of portions of multiple
Competitive Bids at a particular Competitive Bid Rate pursuant to such clause
(iv) the amounts shall be rounded to multiples of $1,000,000 in a manner
determined by the Company. A notice given by the Company pursuant to this
paragraph shall be irrevocable.
(e) Notification of Acceptances by the Administrative Agent. The Administrative Agent shall promptly notify each bidding Lender by telecopy whether or not its Competitive Bid has been accepted (and, if so, the amount and Competitive Bid Rate so accepted), and each successful bidder will thereupon become bound, subject to the terms and conditions hereof, to make the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) Bids by the Administrative Agent. If the Administrative Agent shall elect to submit a Competitive Bid in its capacity as a Lender, it shall submit such Competitive Bid directly to the Company at least one quarter of an hour earlier than the time by which the other Lenders are required to submit their Competitive Bids to the Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05 Funding of Borrowings.
(a) Funding by Lenders. Each Lender shall make each Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 12:00 noon, New York City time, to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the respective Borrower by
promptly crediting the amounts so received, in like funds, to an account maintained with the Administrative Agent in New York City and designated by such Borrower in the applicable Borrowing Request or Competitive Bid Request.
(b) Presumption by the Administrative Agent. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the respective Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and such Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the Federal Funds Effective Rate or (ii) in the case of such Borrower, the interest rate applicable to ABR Loans for such Borrowing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in such Borrowing.
SECTION 2.06 Interest Elections.
(a) Elections by the Borrowers for Syndicated Borrowings. Each Syndicated Borrowing initially shall be of the Type specified in the applicable Borrowing Request and, in the case of a Syndicated Eurodollar Borrowing, shall have the Interest Period specified in such Borrowing Request. Thereafter, the applicable Borrower may elect to convert such Borrowing to a Borrowing of a different Type or to continue such Borrowing as a Borrowing of the same Type and, in the case of a Syndicated Eurodollar Borrowing, may elect the Interest Period therefor, all as provided in this Section. A Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans constituting such Borrowing, and the Loans constituting each such portion shall be considered a separate Borrowing. This Section shall not apply to Competitive Borrowings, which may not be converted or continued.
(b) Notice of Elections. To make an election pursuant to this Section, a Borrower shall notify the Administrative Agent of such election by telephone by the time that a Borrowing Request would be required under Section 2.03 if such Borrower were requesting a Syndicated Borrowing of the Type resulting from such election to be made on the effective date of such election. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by such Borrower.
(c) Information in Interest Election Requests. Each telephonic and written Interest Election Request shall specify the following information in compliance with Section 2.02:
(i) the Borrower and the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) of this paragraph shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest Period therefor after giving effect to such election, which shall be a period contemplated by the definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does not specify an Interest Period, then the respective Borrower shall be deemed to have selected an Interest Period of one month's duration.
(d) Notice by the Administrative Agent to Lenders. Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each Lender of the details thereof and of such Lender's portion of each resulting Borrowing.
(e) Failure to Elect; Events of Default. If the respective Borrower fails to deliver a timely Interest Election Request with respect to a Syndicated Eurodollar Borrowing prior to the end of the Interest Period therefor, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the respective Borrower, then, so long as an Event of Default is continuing (i) no outstanding Syndicated Borrowing may be converted to or continued as a Syndicated Eurodollar Borrowing and (ii) unless repaid, each Syndicated Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of the Interest Period therefor.
SECTION 2.07 Termination and Changes of Commitments.
(a) Scheduled Termination. The Term Loan Commitments shall terminate at 5:00 PM (New York City time) on the earlier of the Term Loan Funding Date and the Term Loan Commitment Expiration Date. Unless previously terminated,
the aggregate amount of the Revolving Credit Commitments shall terminate on the Revolving Credit Commitment Termination Date.
(b) Voluntary Termination or Reduction. The Company may at any time terminate or from time to time reduce the Revolving Credit Commitments; provided that (i) each reduction of the Revolving Credit Commitments shall be in an amount that is $20,000,000 or a larger multiple of $1,000,000 and (ii) the Company shall not terminate or reduce the Revolving Credit Commitments if, after giving effect to any concurrent prepayment of the Loans in accordance with Section 2.09, the sum of the total Revolving Credit Commitments plus the aggregate principal amount of outstanding Competitive Loans would exceed the Total Revolving Credit Commitments.
(c) Notice of Voluntary Termination or Reduction. The Company shall notify the Administrative Agent of any election to terminate or reduce the Revolving Credit Commitments under paragraph (b) of this Section at least three Business Days prior to the effective date of such termination or reduction, specifying such election and the effective date thereof. Promptly following receipt of any such notice, the Administrative Agent shall advise the Lenders of the contents thereof. Each notice delivered by the Company pursuant to this Section shall be irrevocable; provided that a notice of termination of the Revolving Credit Commitments delivered by the Company may state that such notice is conditioned upon the effectiveness of other credit facilities, in which case such notice may be revoked by the Company (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.
(d) Effect of Termination or Reduction. Any termination or reduction of the Commitments shall be permanent. Each reduction of the Revolving Credit Commitments shall be made ratably among the Lenders in accordance with their respective Revolving Credit Commitments.
SECTION 2.08 Repayment of Loans; Evidence of Debt.
(a) Repayment of Loans.
(i) The Company hereby unconditionally promises to pay to the Administrative Agent (x) for account of the Lenders, on the Revolving Credit Commitment Termination Date, the outstanding principal amount of the Revolving Credit Loans, and (y) for account of the respective Lender the then unpaid principal amount of each Competitive Loan of such Lender on the last day of the Interest Period therefor.
(ii) The Subsidiary Borrower hereby unconditionally promises to pay to the Administrative Agent for account of the Lenders, on the Term Loan Maturity Date, the outstanding principal amount of the Term Loans.
(b) Manner of Payment. Prior to any repayment or prepayment of any Borrowings hereunder, the respective Borrower shall select the Borrowing or Borrowings
to be paid and shall notify the Administrative Agent by telephone (confirmed by telecopy) of such selection not later than 11:00 a.m., New York City time, three Business Days before the scheduled date of such repayment. If a Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid or prepaid, such payment shall be applied, first, to pay any outstanding ABR Borrowings of such Borrower and, second, to other Borrowings of such Borrower in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid first), and for these purposes, Competitive Loans shall be deemed to be in the same Class as Loans. Each payment of a Borrowing shall be applied ratably to the Loans included in such Borrowing.
(c) Maintenance of Loan Accounts by Lenders. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrowers to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
(d) Maintenance of Loan Accounts by the Administrative Agent. The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and each Interest Period therefor, (ii) the amount of any principal or interest due and payable or to become due and payable from each Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for account of the Lenders and each Lender's share thereof.
(e) Effect of Entries. The entries made in the accounts maintained pursuant to paragraph (c) or (d) of this Section shall be prima facie evidence of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of a Borrower to repay the Loans in accordance with the terms of this Agreement.
(f) Promissory Notes. Any Lender may request that Loans made by it to a Borrower be evidenced by a promissory note. In such event, such Borrower shall prepare, execute and deliver to such Lender a promissory note payable to the order of such Lender (or, if requested by such Lender, to such Lender and its registered assigns) and in a form approved by the Administrative Agent. Thereafter, the Loans evidenced by such promissory note and interest thereon shall at all times (including after assignment pursuant to Section 9.04) be represented by one or more promissory notes in such form payable to the order of the payee named therein (or, if such promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.09 Prepayment of Loans.
(a) Mandatory Prepayments. The Company shall prepay any Revolving Credit Loans made to it, to the extent, at any time, that the outstanding
Revolving Credit Loans exceed the amount of the aggregate Revolving Credit Commitments of the Lenders.
(b) Optional Prepayments; Right to Prepay Borrowings. Each Borrower shall
have the right at any time and from time to time to prepay any Borrowing made
to it in whole or in part, subject to the requirements of this Section and
Section 2.14; provided that the Company shall not have the right to prepay any
Competitive Loan without the prior consent of the Lender thereof.
(c) Notices, Etc. Each Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any optional prepayment to be made by it
hereunder (i) in the case of prepayment of a Syndicated Eurodollar Borrowing or
of a Competitive Borrowing, not later than 11:00 a.m., New York City time,
three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 5:00 p.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
prepayment is given in connection with a conditional notice of termination of
the Revolving Credit Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such notice
relating to a Syndicated Borrowing or Competitive Borrowing, the Administrative
Agent shall advise the relevant Lenders of the contents thereof. Each partial
prepayment of any Borrowing shall be in an amount that would be permitted in
the case of a Borrowing of the same Type as provided in Section 2.02; provided
that no partial prepayment of any Eurodollar Borrowing shall reduce the
remaining aggregate principal amount of the Eurodollar Loans made pursuant to
such Borrowing to an amount less than $15,000,000. Each prepayment of a
Syndicated Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11 and shall be made in the manner specified in
Section 2.08(b).
SECTION 2.10 Fees.
(a) Facility Fee. The Company agrees to pay to the Administrative Agent for account of each Lender a facility fee, which shall accrue at the Applicable Rate on the daily amount of the Revolving Credit Commitment of such Lender (whether used or unused) during the period from and including the Closing Date to but excluding the earlier of the date such Revolving Credit Commitment terminates and the Revolving Credit Commitment Termination Date; provided that, if such Lender continues to have any Revolving Credit Exposure after its Revolving Credit Commitment terminates, then such facility fee shall continue to accrue on the daily amount of such Lender's Revolving Credit Exposure from and including the date on which its Revolving Credit Commitment terminates to but excluding the date on which such Lender ceases to have any Revolving Credit Exposure. Accrued facility fees shall be payable on each Quarterly Date and on the earlier of the date the Revolving
Credit Commitment terminates and the Revolving Credit Commitment Termination Date, commencing on the first such date to occur after the date hereof; provided that any facility fees accruing after the date on which the Revolving Credit Commitments terminate shall be payable on demand. All facility fees shall be computed on the basis of a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day).
(b) Administrative Agent Fees. The Company agrees to pay to the Administrative Agent, for its own account, fees payable in the amounts and at the times separately agreed upon between the Company and the Administrative Agent.
(c) Utilization Fee. At any time (i) any Term Loans or any Term Loan
Commitments are then outstanding or (ii) the aggregate principal amount of
Revolving Credit Loans then outstanding exceeds 25% of the Total Revolving
Credit Commitment, the Company agrees to pay to the Administrative Agent for
account of each Lender a utilization fee, which shall accrue at the Applicable
Rate on the aggregate outstanding principal balance of all Revolving Credit
Loans and Competitive Bid Loans made by the Lenders hereunder. Accrued
utilization fees shall be payable on each Quarterly Date and on the earlier of
(x) the date the Revolving Credit Commitments terminate and (y) the Revolving
Credit Commitment Termination Date, commencing on the first such date to occur
after the date hereof; provided that any utilization fees accruing after the
date on which the Revolving Credit Commitments terminate shall be payable on
demand. All utilization fees shall be computed on the basis of a year of 360
days and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(d) Other Fees. The Company agrees to pay such other fees at such times and in such amounts as have or may be agreed upon between or among the Company, the Administrative Agent and the Arranger from time to time, including, without limitation, the Fee Letter.
(e) Payment of Fees. All fees payable hereunder shall be paid on the dates due, in immediately available funds, to the Administrative Agent for distribution, in the case of facility fees, to the Lenders entitled thereto. Fees paid shall not be refundable under any circumstances.
SECTION 2.11 Interest.
(a) ABR Loans. The Loans constituting each ABR Borrowing shall bear interest at a rate per annum equal to the Alternate Base Rate plus the Applicable Rate for such Borrowing (if any).
(b) Eurodollar Loans. The Loans constituting each Eurodollar Borrowing shall bear interest at a rate per annum equal to (i) in the case of a Syndicated Borrowing, the Adjusted LIBO Rate for the Interest Period for such Borrowing plus the Applicable Rate for such Borrowing, or (ii) in the case of a Competitive Eurodollar Borrowing, the LIBO Rate for the Interest Period for such Borrowing plus (or minus, as applicable) the Margin applicable to such Loan.
(c) Fixed Rate Loans. Each Fixed Rate Loan shall bear interest at a rate per annum equal to the Fixed Rate applicable to such Loan.
(d) Default Interest. Notwithstanding the foregoing, if any principal of or interest on any Loan or any fee or other amount payable by a Borrower hereunder is not paid when due, whether at stated maturity, upon acceleration or otherwise, such overdue amount shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the rate otherwise applicable to such Loan as provided above or (ii) in the case of any other amount, 2% plus the Alternate Base Rate.
(e) Payment of Interest. Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan, in the case of Term Loans,
on the Term Loan Maturity Date and, in the case of Revolving Credit Loans, upon
termination of the Revolving Credit Commitments; provided that (i) interest
accrued pursuant to paragraph (d) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Credit Loan prior to the Revolving Credit
Commitment Termination Date), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Syndicated Eurodollar Borrowing prior to
the end of the Interest Period therefor, accrued interest on such Borrowing
shall be payable on the effective date of such conversion.
(f) Computation. All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.12 Alternate Rate of Interest. If prior to the commencement of the Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or, in the case of a Competitive Eurodollar Loan, the Lender that is required to make such Loan) that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrowers and the Lenders by telephone or telecopy as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Syndicated Borrowing as, a Syndicated Eurodollar Borrowing shall be ineffective, (ii) if any Borrowing Request requests a Syndicated Eurodollar Borrowing, such Borrowing shall be made as an ABR Borrowing and (iii) any request by a Borrower for a Competitive Eurodollar Borrowing shall be ineffective; provided that if the circumstances giving rise to such notice do not affect all the Lenders, then requests by the Company for Competitive Eurodollar Borrowings may be made to Lenders that are not affected thereby.
SECTION 2.13 Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar requirement against assets of, deposits with or for account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any other condition affecting this Agreement or Eurodollar Loans or Fixed Rate Loans made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such Lenders of making or maintaining any Eurodollar Loan or Fixed Rate Loan to either Borrower (or of maintaining its obligation to make any such Loan) or to reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal, interest or otherwise), then the respective Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for such additional costs incurred or reduction suffered.
(b) Capital Requirements. If any Lender determines that any Change in Law regarding capital requirements has or would have the effect of reducing the rate of return on such Lender's capital or on the capital of such Lender's holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender's holding company could have achieved but for such Change in Law (taking into consideration such Lender's policies and the policies of such Lender's holding company with respect to capital adequacy), then from time to time the Company will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender's holding company for any such reduction suffered.
(c) Certificates from Lenders. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as
the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Company and shall be conclusive absent manifest error. The respective Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender's right to demand such compensation; provided that no Borrower shall be required to compensate a Lender pursuant to this Section for any increased costs or reductions incurred more than six months prior to the date that such Lender notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender's intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the six-month period referred to above shall be extended to include the period of retroactive effect thereof.
(e) Competitive Loans. Notwithstanding the foregoing provisions of this
Section, a Lender shall not be entitled to compensation pursuant to this
Section in respect of any Competitive Loan if the Change in Law that would
otherwise entitle it to such compensation shall have been publicly announced
prior to submission of the Competitive Bid pursuant to which such Loan was
made.
SECTION 2.14 Break Funding Payments. In the event of (a) the payment of any principal of any Eurodollar Loan or Fixed Rate Loan of either Borrower other than on the last day of an Interest Period therefor (including as a result of an Event of Default), (b) the conversion of any Eurodollar Loan of either Borrower other than on the last day of an Interest Period therefor, (c) the failure to borrow, convert, continue or prepay any Syndicated Loan of either Borrower on the date specified in any notice delivered pursuant hereto (regardless of whether such notice is permitted to be revocable under Section 2.09(b) and is revoked in accordance herewith), (d) the failure by the Company to borrow any Competitive Loan after accepting the Competitive Bid to make such Loan or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan of either Borrower other than on the last day of an Interest Period therefor as a result of a request by such Borrower pursuant to Section 2.18, then, in any such event, the respective Borrower shall compensate each Lender for the loss, cost and expense attributable to such event.
In the case of a Eurodollar Loan, the loss to any Lender attributable to any such event shall be deemed to include an amount determined by such Lender to be equal to the excess, if any, of (i) the amount of interest that such Lender would pay for a deposit equal to the principal amount of such Loan for the period from the date of such payment, conversion, failure or assignment to the last day of the then current Interest Period for such Loan (or, in the case of a failure to borrow, convert or continue, the duration of the Interest Period that would have resulted from such borrowing, conversion or continuation) if the interest rate payable on such deposit were equal to the Adjusted LIBO Rate (in the case of a Syndicated Eurodollar Loan) or the LIBO Rate (in the case of a Competitive Eurodollar Loan) for such Interest Period, over (ii) the amount of interest
that such Lender would earn on such principal amount for such period if such Lender were to invest such principal amount for such period at the interest rate that would be bid by such Lender (or an affiliate of such Lender) for Dollar deposits from other banks in the eurodollar market at the commencement of such period. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Company and shall be conclusive absent manifest error. The respective Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.15 U.S. Taxes.
(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the Borrowers hereunder shall be made free and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that if either Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. In addition, each Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Indemnification by the Company. The Company shall indemnify the Administrative Agent and each Lender, within 10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by the Administrative Agent or such Lender, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to the Company by a Lender, or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by either Borrower to a Governmental Authority, such Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(e) Foreign Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the United States of America, or any treaty to which the United States of America is a party, with respect to payments under this Agreement shall deliver to the Company (with a copy to the Administrative Agent), at the time or times prescribed by applicable law or reasonably requested by the Company, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate.
SECTION 2.16 [Intentionally omitted.]
SECTION 2.17 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Payments by the Borrowers. Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest or fees, or under Section 2.13, 2.14 or 2.15, or otherwise) prior to 12:00 noon, New York City time, on the date when due, in immediately available funds, without set-off, counterclaim or other deduction. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at Eleven Madison Avenue, New York, New York 10010, except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b) Application of Insufficient Payments. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(c) Pro Rata Treatment. Except to the extent otherwise provided herein:
(i) each Revolving Credit Borrowing shall be made from the Lenders, each
payment of facility fee or utilization fee, if applicable, under Section 2.10
shall be made for account of the Lenders, and each termination or reduction of
the amount of the Revolving Credit Commitments under Section 2.07 shall be
applied to the respective Revolving Credit Commitments of the Lenders, pro rata
according to the amounts of their respective Revolving Credit Commitments; (ii)
each Term Loan Borrowing shall be
made from the Lenders pro rata according to the amounts of their respective Term Loan Commitments, (iii) each Syndicated Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments of the applicable Class (in the case of the making of Syndicated Loans) or their respective Loans of the applicable Class (in the case of conversions and continuations of Syndicated Loans); (iv) each payment or prepayment of principal of Syndicated Loans by either Borrower shall be made for account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Syndicated Loans of the respective Borrower held by them; and (v) each payment of interest on Syndicated Loans by the respective Borrower shall be made for account of the Lenders pro rata in accordance with the amounts of interest on such Loans of the respective Borrower then due and payable to the respective Lenders.
(d) Sharing of Payments by Lenders. If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Syndicated Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Syndicated Loans and accrued interest thereon then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Syndicated Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Syndicated Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Company or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). Each Borrower consents to the foregoing and agree, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(e) Presumptions of Payment. Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Administrative Agent for account of the Lenders hereunder that such Borrower will not make such payment, the Administrative Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the Federal Funds Effective Rate.
(f) Certain Deductions by the Administrative Agent. If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.17(e), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for account of such Lender to satisfy such Lender's obligations under such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18 Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 2.13, or if either Borrower is required to pay any additional amount to any Lender or any Governmental Authority for account of any Lender pursuant to Section 2.15, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Each Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.13, or if either Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for account of any Lender pursuant to
Section 2.15, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Company may, at its sole expense and effort, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04), all its interests, rights and obligations under
this Agreement (other than any outstanding Competitive Loans held by it) to an
assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Company
shall have received the prior written consent of the Administrative Agent,
which consent shall not unreasonably be withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal of its Loans
(other than Competitive Loans), accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender shall not be required to make any
such assignment and delegation if, prior thereto, as a result of a waiver by
such Lender or otherwise, the circumstances entitling the Company to require
such assignment and delegation cease to apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each of the Company and the Subsidiary Borrower hereby represents and warrants to the Lenders that:
SECTION 3.01 Corporate Existence. Each of the Company and its Material Subsidiaries (a) is a corporation duly organized and validly existing under the laws of the jurisdiction of its incorporation (or in the case of a Subsidiary that is not a corporation, is a partnership or other entity duly organized and validly existing under the laws of its jurisdiction of organization); (b) has all requisite legal power, and has all material governmental licenses, authorizations, consents and approvals, necessary to own its assets and carry on its business as now being or as proposed to be conducted; and (c) is qualified to do business in all jurisdictions in which the nature of the business conducted by it makes such qualification necessary and where failure so to qualify would have a material adverse effect on the consolidated financial condition, operations, business or prospects taken as a whole of the Company and its Consolidated Subsidiaries. The Subsidiary Borrower and Acquico are Wholly Owned Subsidiaries of the Company.
SECTION 3.02 Financial Condition. (a) The consolidated balance sheet of the Company and its Consolidated Subsidiaries as at December 31, 1999 and the related consolidated statements of earnings, cash flow and common shareholders' equity of the Company and its Consolidated Subsidiaries for the fiscal year ended on said date, with the opinion thereon of Arthur Andersen & Co., and the unaudited consolidated balance sheet of the Company and its Consolidated Subsidiaries as at March 31, 2000 and the related consolidated statements of earnings and cash flow of the Company and its Consolidated Subsidiaries for the three-month period ended on said date, in each case heretofore furnished to each of the Lenders, are complete and correct and fairly present the consolidated financial condition of the Company and its Consolidated Subsidiaries as at said dates and the consolidated results of their operations for the fiscal year, and three-month period ended on said dates (subject, in the case of such financial statements as at March 31, 2000, to normal year-end audit adjustments), all in accordance with generally accepted accounting principles and practices applied on a consistent basis. Neither the Company nor any of its Subsidiaries had, on said dates, any material contingent liabilities, liabilities for taxes, unusual forward or long-term commitments or unrealized or anticipated losses from any unfavorable commitments, except as referred to or reflected or provided for in said balance sheets as at said dates. Since March 31, 2000, there has been no material adverse change in the consolidated financial condition, operations, business or prospects taken as a whole of the Company and its Consolidated Subsidiaries from that set forth in said financial statements as at said date.
(b) The statements of earnings, cash flow and common shareholders' equity (if any) of the Subsidiary Borrower for each of the fiscal quarter ended March 31, 2000 and the fiscal year ended December 31, 1999 and the related balance sheets as at the end of such quarter and such year, respectively, fairly present the financial condition and
results of the operations of the Subsidiary Borrower in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such quarter and such year, respectively.
SECTION 3.03 Litigation. Except as disclosed to the Lenders in writing prior to the date of this Agreement, the legal or arbitral proceedings, and proceedings by or before any governmental or regulatory authority or agency, now pending or (to the knowledge of the Company) threatened against the Company and/or any of its Subsidiaries will not, in the opinion of the General Counsel of the Company, result in imposition of liability or assessment against (including seizure of) property in an aggregate amount as to all such proceedings exceeding 10% of Consolidated Net Worth.
SECTION 3.04 No Breach. None of the execution and delivery of this Agreement, the consummation of the transactions herein contemplated and compliance with the terms and provisions hereof will conflict with or result in a breach of, or require any consent under, the charter or by-laws of either Borrower, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which the Company and/or any of its Subsidiaries is a party or by which any of them is bound or to which any of them is subject, or constitute a default under any such agreement or instrument.
SECTION 3.05 Corporate Action of the Borrowers. Each Borrower has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by such Borrower of this Agreement have been duly authorized by all necessary corporate action on its part; and this Agreement has been duly and validly executed and delivered by such Borrower and constitutes the legal, valid and binding obligation of such Borrower, enforceable in accordance with its terms.
SECTION 3.06 Approvals. No authorizations, approvals or consents of, and no filings or registrations with, any governmental or regulatory authority or agency are necessary for the execution, delivery or performance by the Company and/or the Subsidiary Borrower of this Agreement or for the validity or enforceability thereof.
SECTION 3.07 Use of Loans. The proceeds of the Loans made hereunder shall be used by the Borrowers (i) on or after the Closing Date, to finance the Exchange Offer, the Refinancing and the payment of fees and expenses in connection therewith, (ii) on and after the date of the Merger, to finance any remaining cash consideration with respect to the Acquisition, and (iii) on and after the Closing Date, for general corporate purposes of the Company and its Subsidiaries (in compliance with all applicable legal and regulatory requirements).
SECTION 3.08 ERISA. The Company and the ERISA Affiliates have fulfilled their respective obligations under the minimum funding standards of ERISA and the Code with respect to each Plan and are in compliance in all material respects with the presently applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or any Plan or Multiemployer Plan (other than to make contributions in the ordinary course of business).
SECTION 3.09 Taxes. United States Federal income tax returns of the Company have been examined and closed through the fiscal year of the Company ended December 31, 1993. The Company and its Subsidiaries have filed all United States Federal income tax returns and all other material tax returns which are required to be filed by them and have paid all taxes due pursuant to such returns or pursuant to any assessment received by the Company or any of its Subsidiaries. The charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of taxes and other governmental charges are, in the opinion of the Company, adequate. If the Company is a member of an affiliated group of corporations filing consolidated returns for United States Federal income tax purposes, it is the "common parent" of such group.
SECTION 3.10 Investment Company Act. Neither the Company nor the Subsidiary Borrower is an "investment company", or a company "controlled" by an "investment company", within the meaning of the Investment Company Act of 1940, as amended.
SECTION 3.11 Public Utility Holding Company Act. Neither the Company nor the Subsidiary Borrower is a "holding company", or an "affiliate" of a "holding company" or a "subsidiary company" of a "holding company", within the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 3.12 Credit Agreements. Schedule II is a complete and correct list, as of the date of this Agreement, of each credit agreement, loan agreement, indenture, purchase agreement, guarantee or other arrangement providing for or otherwise relating to any Indebtedness or any extension of credit (or commitment for any extension of credit) to, or guarantee by, the Company or any of its Subsidiaries the aggregate principal or face amount of which equals or exceeds (or may equal or exceed) $150,000,000 and the aggregate principal or face amount outstanding or which may become outstanding under each such arrangement is correctly described in Schedule II.
SECTION 3.13 Hazardous Materials and Environmental Matters.
(a) Licenses and Permits, Etc. The Company and each of its Subsidiaries have obtained all permits, licenses and other authorizations which are required under all Environmental Laws, except to the extent failure to have any such permit, license or authorization could not in the aggregate reduce by more than 25% the annual tonnage capacity of the paper processing operations of the Company and its Consolidated Subsidiaries. The Company and each of its Subsidiaries are in compliance with the terms and conditions of all such permits, licenses and authorizations, and are also in compliance with all other limitations, restrictions, conditions, standards, prohibitions, requirements, obligations, schedules and timetables contained in any applicable Environmental Law or in any regulation, code, plan, order, decree, judgment, injunction, notice or demand letter issued, entered, promulgated or approved thereunder,
except to the extent failure to comply could not in the aggregate reduce by more than 25% the annual tonnage capacity of the paper processing operations of the Company and its Consolidated Subsidiaries.
(b) Compliance Review. In the ordinary course of its business, the Company conducts an ongoing review of the effect of Environmental Laws on the business, operations and properties of the Company and its Subsidiaries, in the course of which it identifies and evaluates associated liabilities and costs (including any capital or operating expenditures required for clean-up or closure of properties presently or previously owned, any capital or operating expenditures required to achieve or maintain compliance with environmental protection standards imposed by law or as a condition of any license, permit or contract, any related constraints on operating activities, including any periodic or permanent shutdown of any facility or reduction in the level of or change in the nature of operations conducted thereat, any costs or liabilities in connection with off-site disposal of wastes or hazardous substances, and any actual or potential liabilities to third parties, including employees, and any related costs and expenses). On the basis of this review, the Company has reasonably concluded that such associated liabilities and costs, including the costs of compliance with Environmental Laws, are unlikely to have a material adverse effect on the financial condition, operations, business or prospects, taken as a whole, of the Company.
SECTION 3.14 Full Disclosure. The Company has heretofore furnished to each of the Lenders a true copy of (I) the Company's annual report to shareholder for 1999 setting forth consolidated audited financial statements for the year ended December 31, 1999 and (ii) the Company's quarterly report on Form 10-Q for the quarter ended March 31, 2000 as filed with the Securities and Exchange Commission. Except as disclosed in writing to the Lenders, the Confidential Information Memorandum and the annual, quarterly and other periodic reports most recently delivered to the Lenders pursuant to this Section or Section 3.02 do not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, it being understood and agreed that for purposes of this Section 3.14(a) , such factual information and data shall not include projections and pro forma financial information.
(a) The projections and pro forma financial information contained in the information and data referred to in paragraph (a) above were based on good faith estimates and assumptions believed by such Persons to be reasonable at the time made, it being recognized by the Lenders that such projections as to future events are not to be viewed as facts and that actual results during the period or periods covered by any such projections may differ from the projected results.
SECTION 3.15 Federal Margin Regulations.
(a) Neither Borrower is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loans shall be used for "purchasing" or "carrying" any "margin stock" within the respective meanings of each of the quoted terms under Regulation U as now and from time to time hereafter in effect, or for any other purpose, in any case in a manner which violates or is inconsistent with the provisions of Regulations U and X or any similar rule of any other governmental authority. If a Borrower is requested by any Lender or the Administrative Agent, such Borrower shall furnish to the Administrative Agent and each Lender a statement to the foregoing effect in conformity with the requirements of Form FR U-1 referred to in said Regulation U.
SECTION 3.16 Solvency. On the Closing Date and on the Term Loan Funding Date, after giving effect to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, each of the Borrowers is Solvent.
SECTION 3.17 Exchange Offer and Merger. (a) The Company, the Subsidiary Borrower and Acquico have all necessary corporate power and authority (and all necessary corporate authority has been obtained) (i) for the Company to issue (and incur the obligations with respect to) the debt securities under the Debt Issuance, (ii) for the Company and the Subsidiary Borrower to make equity contributions to or extend credit to Acquico in the amounts necessary for Acquico to consummate the Acquisition (and for Acquico to borrow such funds or receive such equity contribution), (iii) for the Company and Acquico to consummate the Exchange Offer as described in the Offer to Exchange, (iv) for Acquico to effect the Merger and (v) for each to consummate all of the other transactions to be consummated by such Person as contemplated by the Offer to Exchange and the Merger Agreement or as is otherwise necessary to consummate the Acquisition (the foregoing transactions, the "Acquisition Transactions"); other than, in the case of clauses (iv) and (v) above, the approval of the shareholders of Champion to consummate the Merger.
(b) From and after the Term Loan Funding Date, consummation of the Acquisition Transactions will not conflict with or result in a breach of, or require any consent under, the charter or by-laws of the Company or Acquico, or any applicable law or regulation, or any order, writ, injunction or decree of any court or governmental authority or agency, or any agreement or instrument to which the Company and/or any of its Subsidiaries is a party or by which any of them is bound or to which any of them is subject, or constitute a default under any such agreement or instrument (other than any such breaches that have been waived or consents that have been obtained and other than any law, regulation, order, writ, injunction, decree, agreement or other instrument the failure to comply with which, individually or collectively, would not reasonably be expected to have a Material Adverse Effect);
(c) From and after the Term Loan Funding Date, no authorizations, approvals or consents of, and no filings or registrations with, any governmental or regulatory authority or agency are necessary for the consummation of the Acquisition Transactions, except for (x) the filing of the merger certificate in relation to the Merger
which shall be effected upon the consummation of the Merger, and (y) those governmental approvals which have been duly obtained or made, have been accepted by the Company, the Subsidiary Borrower or Acquico, are in full force and effect, are not the subject of any pending judicial or administrative proceedings, and if the applicable statute, rule or regulation provides for a fixed period for judicial or administrative appeal or review thereof, such periods have expired and no petition for administrative or judicial appeal or review has been filed other than those governmental approval and other consents or approvals of third parties the failure of which, individually or collectively, would not reasonably be expected to have a Material Adverse Effect;
(d) Except as disclosed to the Lenders in writing prior to the date of this Agreement, as of the Closing Date and as of the Term Loan Funding Date, no legal or arbitral proceedings, proceedings by or before any governmental or regulatory authority or agency, is now pending or (to the knowledge of the Company) threatened against the Company, the Subsidiary Borrower, Aqcuico or Champion with respect to any Acquisition Transaction which is reasonably likely to have a Material Adverse Effect;
(e) As of the Term Loan Funding Date, the Exchange Offer has expired and
no less than 66 2/3% of the Champion Shares outstanding on a fully diluted
basis (together with all options or other securities convertible into or
exercisable or exchangeable for Champion Shares being deemed to have been so
converted, exercised or exchanged) have been validly tendered to Acquico
pursuant to the Exchange Offer, free and clear of all Liens and restrictions to
purchase imposed by Applicable Law or otherwise, and such shares have not been
withdrawn and have been accepted for purchase in accordance with the terms and
conditions set forth in the Offer to Exchange, and after acquiring such shares,
Acquico shall own free and clear of any Lien such Champion Shares and shall be
entitled to vote such shares in any meeting called for a vote of the holders of
Champion Shares without any restriction (including any restriction set forth in
Section 912 of the New York Business Corporation Law); and
(f) No provision of law or regulation, or of the certificate of incorporation or by-laws of Champion or of any shareholder agreement or shareholder rights program of Champion or of any other agreement, shall prevent or materially impede the consummation of the Exchange Offer or the Merger (or the ability of Acquico to vote the Champion Shares in favor of the Merger).
ARTICLE IV
GUARANTEE
SECTION 4.01 Guarantee. The Guarantor hereby guarantees to each Lender and the Administrative Agent and their respective successors and assigns the prompt payment in full when due (whether at stated maturity, by acceleration or otherwise) of the principal of and interest on the Loans made by the Lenders to the Subsidiary Borrower and all other amounts from time to time owing to the Lenders or the
Administrative Agent by the Subsidiary Borrower under this Agreement (such obligations being herein collectively called the "Guaranteed Obligations"). The Guarantor hereby further agrees that if the Subsidiary Borrower shall fail to pay in full when due (whether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, the Guarantor will promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration or otherwise) in accordance with the terms of such extension or renewal.
SECTION 4.02 Obligations Unconditional. The Obligations of the Guarantor under Section 4.01 are absolute, irrevocable and unconditional irrespective of the value, genuineness, validity, regularity, legality or enforceability of the obligations of the Subsidiary Borrower under this Agreement or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (including any immunity, sovereign or otherwise, to which the Subsidiary Borrower may be entitled), it being the intent of this Section that the obligations of the Guarantor hereunder shall be absolute, irrevocable and unconditional under any and all circumstances. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not affect the liability of the Guarantor hereunder:
(i) at any time or from time to time, without notice to the Guarantor, the time for any performance of or compliance with any of the Guaranteed Obligations shall be extended, or such performance or compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of this Agreement or any other agreement or instrument referred to herein or therein shall be done or omitted; or
(iii) the maturity of any of the Guaranteed Obligations shall be accelerated, or any of the Guaranteed Obligations shall be modified, supplemented, or amended in any respect, or any right under this Agreement or any other agreement or instrument referred to herein or therein shall be waived or any other guarantee of any of the Guaranteed Obligations or any security therefor shall be released or exchanged, or shall be or become unperfected, in whole or in part or otherwise dealt with.
The Guarantor hereby expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever, and any requirement that the Administrative Agent or any Lender exhaust any right, power or remedy or proceed against the Subsidiary Borrower under this Agreement or any other agreement or instrument referred to herein
or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.
SECTION 4.03 Reinstatement. The obligations of the Guarantor under this Article IV shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of the Subsidiary Borrower in respect of the Guaranteed Obligations is rescinded or must be otherwise restored by any holder of any of the Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise and the Guarantor agrees that it will indemnify the Administrative Agent and each Lender on demand for all reasonable costs and expenses (including fees of counsel) incurred by the Administrative Agent or such Lender in connection with such rescission or restoration.
SECTION 4.04 Subrogation. The Guarantor hereby waives all rights of subrogation or contribution, whether arising by operation of law (including any such right arising under the Federal Bankruptcy Code) or otherwise, by reason of any payment by it pursuant to the provisions of this Article IV and further agrees that for the benefit of each of its creditors (including each Lender and the Administrative Agent) that any such payment by it of the Guaranteed Obligations of the Subsidiary Borrower shall constitute a contribution of capital by the Guarantor to the Subsidiary Borrower or, if evidenced by an instrument in form and substance (and containing terms of subordination) satisfactory to the Required Lenders, indebtedness subordinated in right of payment to the principal of and interest (including post-petition interest) on the Loans owing by the Subsidiary Borrower.
SECTION 4.05 Remedies. The Guarantor agrees that, as between the Guarantor and the Lenders, the obligations of the Subsidiary Borrower under this Agreement may be declared to be forthwith due and payable as provided in Article VII (and shall be deemed to have become automatically due and payable in the circumstances provided in Article VII) for purposes of Section 4.01 notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against the Subsidiary Borrower and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by the Subsidiary Borrower) shall forthwith become due and payable by the Guarantor for purposes of said Section 4.01.
SECTION 4.06 Continuing Guarantee. The guarantee in this Article IV is a continuing guarantee, and shall apply to all Guaranteed Obligations whenever arising.
ARTICLE V
CONDITIONS
SECTION 5.01 Closing Date. The obligations of the Lenders to make any
Loans hereunder are subject to the satisfaction (or waiver in accordance with
Section 9.02) of the following conditions precedent:
(a) Documents. The Administrative Agent shall have received each of the following documents, each of which shall be satisfactory to the Administrative Agent (and to the extent specified below, to each Lender) in form and substance:
(i) Executed Counterparts. From each party hereto either (i) a counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy transmission of a signed signature page to this Agreement) that such party has signed a counterpart of this Agreement;
(ii) Opinion of Counsel to the Company. A favorable written opinion (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of James W. Guedry, counsel for the Company substantially in the form of Exhibit B-1 (and the Company hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent);
(iii) Opinion of Special New York Counsel to the Company. An opinion, dated the Closing Date, of Davis, Polk & Wardwell, special New York counsel to the Company, substantially in the form of Exhibit B-2 (and the Company hereby instructs such counsel to deliver such opinion to the Lenders and the Administrative Agent);
(iv) Corporate Documents. Such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to (i) the organization, existence and good standing of each Borrower, (ii) the authorization of the execution, delivery and performance by each Borrower of this Agreement, and of the borrowings hereunder by each Borrower, in form and substance satisfactory to the Administrative Agent and its counsel, and (iii) certificates as to the incumbency and signature of each individual signing this Agreement and any other agreement or document contemplated hereby on behalf of the Borrowers;
(v) Financial Statements. Copies of (i) the audited consolidated balance sheets of the Company and its Consolidated Subsidiaries as of December 31, 1999, and the related audited statement of earnings and cash flows for the period ending as of such date, (ii) the unaudited consolidated balance sheets of the Company and its Consolidated Subsidiaries as of March 31, 2000, and the related unaudited statement of earnings and cash flows for the period ending as of such date, (iii) the audited consolidated balance sheets of
Champion and its Consolidated Subsidiaries as of December 31, 1999, and the related audited statement of earnings and cash flows for the period ending as of such date, (iv) the unaudited consolidated balance sheets of Champion and its Consolidated Subsidiaries as of March 31, 2000, and the related unaudited statement of earnings and cash flows for the period ending as of such date and (v) the statements of earnings, cash flow and common shareholders' equity (if any) of the Subsidiary Borrower for each of the fiscal quarter ended March 31, 2000 and the fiscal year ended December 31, 1999 and the related balance sheets as at the end of such quarter and such year, respectively;
(vi) Acquisition Documents. Certified copies of each of the then existing Exchange Offer Statements and the Merger Agreement (and any existing amendments to the originally filed statements or executed agreement, as applicable, shall be in form and substance satisfactory to the Administrative Agent and the Lenders); and
(vii) Other Documents. Such other documents as the Administrative Agent or any Lender or special New York counsel to CSFB may reasonably request;
(b) Representations and Warranties; No Default. The Administrative Agent shall have received, with a copy for each Lender, a certificate of the Company, signed by an authorized officer of the Company and the Subsidiary Borrower, dated as of the Closing Date indicating that (i) the representations and warranties of the Company and the Subsidiary Borrower in Article III hereto are true and correct on and as of the Closing Date, and (ii) no Default has occurred and is continuing.
(c) Approvals. The Administrative Agent shall have received copies, certified by the Company, of all filings made with any governmental authority in connection with the Transactions, that are reasonably requested by the Administrative Agent.
(d) Borrowing Request. The Administrative Agent shall have received pursuant to Sections 2.3 and 2.4, written Borrowing Requests with respect to Loans requested to be made on such date.
(e) Fees. The Company shall have paid such fees as it shall have agreed to pay to any Lender or the Administrative Agent in connection herewith, including the reasonable fees and expenses of Dewey Ballantine LLP, special New York counsel to CSFB, in connection with the negotiation, preparation, execution and delivery of this Agreement and the Loans hereunder (to the extent that statements for such fees and expenses have been delivered to the Company).
The Administrative Agent shall notify the Company and the Lenders of the Closing Date, and such notice shall be conclusive and binding. Notwithstanding the foregoing, the obligations of the Lenders to make Loans hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived pursuant to Section 9.02) on or prior to 3:00 p.m., New York City time, on June 30, 2000 (and, in the event such conditions are not so satisfied or waived, the Commitments shall terminate at such time).
SECTION 5.02 Term Loan Borrowing Conditions. The Borrowing of Term Loans under this Agreement is subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions precedents on or prior to the Term Loan Commitment Expiration Date:
(a) Each of the conditions set forth in the Offer to Exchange, and to the extent required at such time to be satisfied, the Merger Agreement, shall have been satisfied and not waived.
(b) The Administrative Agent and the Lenders shall be satisfied that the Company has sufficient sources (including amounts from any Debt Issuance and cash on hand) of funds to consummate the Acquisition Transactions. The terms, conditions and structure of any Debt Issuance to be effected to finance, in part, the Acquisition Transactions shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lenders;
(c) The Administrative Agent shall have received copies, certified by the Company, of all filings made with any governmental authority in connection with the Transactions, that are reasonably requested by the Administrative Agent;
(d) On or prior to the Term Loan Funding Date, the Indebtedness set forth on Schedule II (and any Indebtedness of Champion) required to be refinanced at such time as a result of the Acquisition shall have been repaid in full;
(e) The Administrative Agent shall have received, with a copy for each Lender, a certificate of the Company signed by an authorized officer of the Company and the Subsidiary Borrower, dated as of the Term Loan Funding Date indicating that (i) the representations and warranties of the Company and the Subsidiary Borrower in Article III hereto are true and correct on and as of the Term Loan Funding Date, and (ii) no Default has occurred;
(f) The Administrative Agent shall have received certified copies of amendments, if any, to the Exchange Offer Statements and the Merger Agreement, which shall be in form and substance satisfactory to the Administrative Agent and the Lenders; and
(g) The Company shall have paid such fees (to the extent not previously paid) as it shall have agreed to pay to any Lender or the Administrative Agent in connection herewith, including the reasonable fees and expenses of Dewey Ballantine LLP, special New York counsel to CSFB, in connection with the negotiation, preparation, execution and delivery of this Agreement and the Loans hereunder (to the extent that statements for such fees and expenses have been delivered to the Company).
SECTION 5.03 Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Company and the Subsidiary Borrower in Article III (other than the last sentence of Section 3.02(a)) shall be true and correct on and as of the date of such Borrowing; and
(b) at the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in the preceding sentence.
ARTICLE VI
COVENANTS OF THE COMPANY
The Company agrees that, so long as any of the Commitments are in effect and until payment in full of all Loans hereunder, all interest thereon and all other amounts payable by any Obligor hereunder:
Part A. Affirmative Covenants.
SECTION 6.01 Financial Statements. The Company shall deliver to each of the Lenders:
(a) as soon as available and in any event within 55 days after the end of each of the first three quarters of each fiscal year of the Company, consolidated statements of earnings and cash flow of the Company and its Consolidated Subsidiaries for such period and for the period from the beginning of the respective fiscal year to the end of such period, and the related consolidated balance sheet as at the end of such period, setting forth in each case in comparative form the corresponding consolidated figures for the corresponding period in the preceding fiscal year, accompanied by a certificate of a senior financial officer of the Company, which certificate shall state that said financial statements fairly present the consolidated financial condition and results of operations, as the case may be, of the Company and its Consolidated Subsidiaries in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments);
(b) as soon as available and in any event within 100 days after the end of each fiscal year of the Company, consolidated statements of earnings, cash flow and common shareholders' equity of the Company and its Consolidated Subsidiaries for such year and the related consolidated balance sheet as at the end of such year, setting forth in each case in comparative form the corresponding consolidated figures for the preceding fiscal year, and accompanied by an unqualified opinion thereon of Arthur Andersen & Co.
or any other independent certified public accountants of recognized national standing, which opinion shall state that said consolidated financial statements fairly present the consolidated financial condition and results of operations of the Company and its Consolidated Subsidiaries as at the end of, and for, such fiscal year, and a certificate of such accountants stating that, in making the examination necessary for their opinion, they obtained no knowledge, except as specifically stated, of any Default;
(c) promptly upon their becoming available, copies of all registration statements and regular periodic reports (other than registration statements filed on Form S-8 and pricing supplements), if any, which the Company shall have filed with the Securities and Exchange Commission (or any governmental agency substituted therefor) or any national securities exchange;
(d) promptly upon the mailing thereof to the shareholders of the Company generally, copies of all financial statements, reports and proxy statements so mailed;
(e) as soon as possible, and in any event within ten days after the Company knows or has reason to know that any of the events or conditions specified below with respect to any Plan or Multiemployer Plan have occurred or exist, a statement signed by a senior financial officer of the Company setting forth details respecting such event or condition and the action, if any, which the Company or its ERISA Affiliate proposes to take with respect thereto (and a copy of any report or notice required to be filed with or given to PBGC by the Company or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in subsections (c)(1), (2), (5) and (6), and subsection (d)(2) of Section 4043 of ERISA and the regulations issued thereunder, with respect to a Plan;
(ii) the filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan under a distress termination or the distress termination of any Plan;
(iii) the institution by PBGC of proceedings under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by PBGC with respect to such Multiemployer Plan;
(iv) the receipt by the Company or any ERISA Affiliate of notice from a Multiemployer Plan that the Company or such ERISA Affiliate has incurred withdrawal liability under Section 4201 of ERISA in excess of $150,000,000 or that such Multiemployer Plan is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated under Section 4041A of
ERISA whereby a deficiency or additional assessment is levied or threatened to be levied against the Company; and
(v) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days;
(f) promptly after the Company knows or has reason to know that any Default has occurred, a notice of such Default describing the same in reasonable detail and, together with such notice or as soon thereafter as possible, a description of the action that the Company has taken and proposes to take with respect thereto;
(g) as soon as available and in any event within 100 days after the end of each fiscal year of the Subsidiary Borrower, statement of earnings, cash flow and common shareholders' equity (if any) of the Subsidiary Borrower for such year and the related balance sheet as at the end of such fiscal year, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, accompanied by a certificate of a senior financial officer of the Company, which certificate shall state that said financial statements fairly present the financial condition and results of operations of the Subsidiary Borrower in accordance with generally accepted accounting principles, consistently applied, as at the end of, and for, such fiscal year;
(h) from time to time such other information regarding the business, affairs or financial condition of the Company or any of its Subsidiaries (including any Plan or Multiemployer Plan and any reports or other information required to be filed under ERISA) as any Lender or the Administrative Agent may reasonably request; and
(i) prompt notice if, at any time, 25% or more of the value of the assets of the Company, of the Subsidiary Borrower or of the Company and its Subsidiaries on a consolidated basis consists of Margin Stock.
The Company will furnish to each Lender, at the time it furnishes each set of financial statements pursuant to paragraph (a) or (b) above, a certificate of a senior financial officer of the Company (i) to the effect that no Default has occurred and is continuing (or, if any Default has occurred and is continuing, describing the same in reasonable detail and describing the action that the Company has taken and proposes to take with respect thereto) and (ii) setting forth in reasonable detail the computations necessary to determine whether the Company is in compliance with Sections 6.08 and 6.09 as of the end of the respective quarterly fiscal period or fiscal year.
SECTION 6.02 Litigation. The Company will promptly give to each Lender notice of all legal or arbitral proceedings, and of all proceedings by or before any governmental or regulatory authority or agency, and any material development in respect of such legal or other proceedings, affecting the Company or any of its Subsidiaries, except any proceeding which, if adversely determined, would not have a material adverse
effect on the consolidated financial condition, operations, business or prospects taken as a whole of the Company and its Consolidated Subsidiaries.
SECTION 6.03 Corporate Existence, Etc. The Company will, and will cause each of its Material Subsidiaries to: preserve and maintain its legal existence and all of its material rights, privileges and franchises (provided that nothing in this Section shall prohibit any transaction expressly permitted under Section 6.05); comply with the requirements of all applicable laws, rules, regulations and orders of governmental or regulatory authorities if failure to comply with such requirements (i) will in the opinion of the General Counsel of the Company result in imposition of liability or assessment against (including seizure of) property in an aggregate amount (as to all such failures to comply) exceeding 10% of Consolidated Net Worth or (ii) could in the aggregate (as to all such failures to comply) reduce by more than 25% the annual tonnage capacity of the paper processing operations of the Company and its Consolidated Subsidiaries; pay and discharge all taxes, assessments and governmental charges or levies imposed on it or on its income or profits or on any of its property prior to the date on which penalties attach thereto, except for any such tax, assessment, charge or levy the payment of which is being contested in good faith and by proper proceedings and against which adequate reserves are being maintained; maintain all of its properties used or useful in its business in good working order and condition, ordinary wear and tear excepted; and upon notice of at least 24 hours, permit representatives of any Lender or the Administrative Agent, during normal business hours, to examine, copy and make extracts from its books and records, to inspect its properties, and to discuss its business and affairs with its officers, all to the extent reasonably requested by such Lender or the Administrative Agent.
SECTION 6.04 Insurance. The Company will maintain, and will cause each of its Subsidiaries to maintain, insurance underwritten by financially sound and reputable insurers, or self insurance (in accordance with normal industry practice) in such amounts and against such risks as ordinarily is carried or maintained by owners of like businesses and properties in similar circumstances.
SECTION 6.05 Use of Proceeds. The Company will, and will cause the Subsidiary Borrower to, use the proceeds of the Loans made to it hereunder solely for the purposes set forth and permitted in Section 3.07 hereof; provided that neither the Administrative Agent nor any Lender shall have any responsibility as to the use of any of such proceeds.
SECTION 6.06 Consummation of the Merger. The Company will obtain when required, maintain in full force and effect, and comply with, all governmental approvals and other consents and approvals of third parties necessary or desirable for the consummation of the Merger. The Company shall cause the Merger to be consummated (on the terms set forth in the Merger Agreement or such other terms as shall be reasonably satisfactory to the Administrative Agent and the Lenders) as soon as practicable and in any event within 180 days after the Closing Date.
Part B. Negative Covenants.
SECTION 6.07 Prohibition of Fundamental Changes. The Company will not, nor will it permit any of its Subsidiaries to, enter into any transaction of merger or consolidation or amalgamation, or liquidate, wind up or dissolve itself (or suffer any liquidation or dissolution). The Company will not, and will not permit any of its Subsidiaries to, convey, sell, lease, transfer or otherwise dispose of, in one transaction or a series of transactions, all or a substantial part of its business or assets, whether now owned or hereafter acquired (including receivables and leasehold interests, but excluding any inventory or other assets sold or disposed of in the ordinary course of business). Notwithstanding the foregoing provisions of this Section:
(a) Acquico may merge with and into Champion in accordance with the Merger Agreement;
(b) any Subsidiary of the Company may be merged or consolidated with or into: (i) the Company if the Company shall be the continuing or surviving corporation or (ii) any other such Subsidiary; provided that if any such transaction shall be between a Subsidiary and a Wholly Owned Subsidiary, the Wholly Owned Subsidiary shall be the continuing or surviving corporation;
(c) any such Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Company or a Wholly Owned Subsidiary of the Company;
(d) the Company or any Subsidiary of the Company may merge or consolidate with any other Person if (i) in the case of a merger or consolidation of the Company, the Company is the surviving corporation and, in any other case, the surviving corporation is a Wholly Owned Subsidiary of the Company and (ii) after giving effect thereto no Default would exist hereunder; and
(e) in addition to the dispositions permitted pursuant to clauses (a) through (f) of this Section, the Company or any Subsidiary of the Company may sell or otherwise dispose of assets (including by merger or consolidation) if, after giving effect to any such sale or disposition, the book value of such assets, together with the aggregate book value of the assets so sold or disposed of since March 31, 2000, does not exceed 20% of Total Assets at March 31, 2000 (after the conditions in Section 5.02 shall have been met, as adjusted to give pro forma effect to the Acquisition Transactions).
SECTION 6.08 Limitation on Liens. The Company will not, nor will it permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, except:
(a) Liens imposed by any governmental authority for taxes, assessments or charges not yet due or which are being contested in good faith and by appropriate proceedings if, unless the amount thereof is not material with respect to it or its financial condition, adequate reserves with
respect thereto are maintained on the books of the Company or any of its Subsidiaries, as the case may be, in accordance with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings;
(c) pledges or deposits under worker's compensation, unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other than for borrowed money), leases, statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar encumbrances incurred in the ordinary course of business and encumbrances consisting of zoning restrictions, easements, licenses, restrictions on the use of property or minor imperfections in title thereto which, in the aggregate, are not material in amount, and which do not in any case materially detract from the value of the property subject thereto or interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries;
(f) Liens on assets of corporations which become Subsidiaries of the Company after the date of this Agreement; provided that such Liens are in existence at the time the respective corporations become Subsidiaries of the Company and were not created in anticipation thereof;
(g) Liens upon real and/or tangible personal property acquired after the date hereof (by purchase, construction or otherwise) by the Company or any of its Subsidiaries, each of which Liens either (A) existed on such property before the time of its acquisition and was not created in anticipation thereof, or (B) was created solely for the purpose of securing Indebtedness representing, or incurred to finance, refinance or refund, the cost (including the cost of construction) of the respective property; provided in the case of clause (B) that such Lien attaches to such asset within 270 days after the acquisition or completion of construction and commencement of full operations thereof; provided, further that no such Lien shall extend to or cover any property of the Company or such Subsidiary other than the respective property so acquired and improvements thereon; and provided, further, that the principal amount of Indebtedness secured by any such Lien shall at no time exceed 95% of the fair market value (as determined in good faith by a senior financial officer of the Company) of the respective property at the time it was acquired (by purchase, construction or otherwise);
(h) [Intentionally Omitted];
(i) Liens on assets consisting of a capital project and rights related
thereto ("Project Assets") securing Indebtedness incurred to finance the
acquisition, construction or development of such Project Assets; provided that
(x) such Indebtedness is non-recourse to any other assets; (y) the aggregate
principal amount of Indebtedness secured by Liens permitted by this paragraph
(i) may at no time exceed $425,000,000 and (z) such Liens attach to such
Project Assets within two years after the initial acquisition or completion of
construction or development of such Project Assets;
(j) Liens upon real and/or personal property of the Company or any Subsidiary of the Company in favor of the United States of America or any State thereof, or any department, agency or instrumentality or political subdivision of the United States or any State thereof, to secure partial, progress, or advance or other payments pursuant to any contract or statute or to secure Indebtedness incurred for the purpose of refinancing all or any part of the purchase price or cost of constructing or improving such property;
(k) additional Liens upon real and/or personal property created after the date hereof; provided that the aggregate outstanding Indebtedness secured thereby and incurred on and after the date hereof shall not at any time exceed 10% of Tangible Assets; and
(l) any extension, renewal or replacement of the foregoing; provided, however, that the Liens permitted hereunder shall not be spread to cover any additional Indebtedness or property (other than a substitution of like property); provided that the sale, mortgage or other transfer of timber in connection with an arrangement under which the Company or any of its Subsidiaries is obligated to cut such timber (or any portion thereof) in order to provide the transferee with a specified amount of money (however determined) shall not be deemed to create Indebtedness secured by a Lien hereunder.
SECTION 6.09 Amendments to Merger Agreement and the Exchange Offer Documents. The Company shall not, and shall not permit Acquico to, amend any provision of the Merger Agreement or any provision of the Offer to Exchange or any Exchange Offer Statement unless the Company shall have obtained the prior written consent of the Administrative Agent and all of the Lenders with respect to any such amendment (other than any amendment which is not material to the Company and its Subsidiaries taken as a whole and which does not materially impede the consummation of the Merger).
SECTION 6.10 Total Debt to Total Capital Ratio. The Company will not at any time permit the ratio of Total Debt to Total Capital to exceed 0.60 to 1.
SECTION 6.11 Minimum Consolidated Net Worth. The Company will not at any time permit Consolidated Net Worth to be less than $9,000,000,000.
ARTICLE VII
EVENTS OF DEFAULT
If one or more of the following events (herein called "Events of Default")
shall occur and be continuing:
(a) Either Borrower shall default in the payment when due of any principal
of any Loan; or either Borrower shall default in the payment when due of any
interest on any Loan or any other amount payable by it hereunder and such
default shall continue unremedied for three or more Business Days; or
(b) The Company or any of its Subsidiaries shall default in the payment
when due of any principal of or interest on any of its Indebtedness (other than
(i) Indebtedness hereunder and (ii) Project Indebtedness) aggregating
$200,000,000 or more; or any event specified in any note, agreement, indenture
or other document evidencing or relating to any such Indebtedness aggregating
$200,000,000 or more shall occur if the effect of such event is (i) to cause,
or (with the giving of any notice or the lapse of time or both) to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause, such Indebtedness to become due, or to be prepaid
in full (whether by redemption, purchase or otherwise), prior to its stated
maturity or (ii) to cause cancellation of commitments thereunder; or
(c) Any representation, warranty or certification made or deemed made herein (or in any modification or supplement hereto or thereto) by any Obligor, or any certificate furnished to any Lender or the Administrative Agent pursuant to the provisions hereof, shall prove to have been false or misleading as of the time made or furnished in any material respect; or
(d) The Company shall default in the performance of any of its obligations under any of Sections 6.01(f), 6.06, 6.07, 6.08, 6.09, 6.10 or 6.11; or any Obligor shall default in the performance of any of its other obligations in this Agreement and such default shall continue unremedied for a period of thirty days after notice thereof to such Obligor (through notification to the Company) by the Administrative Agent or any Lender (through the Administrative Agent); or
(e) The Company or any of its Material Subsidiaries shall admit in writing its inability to, or be generally unable to, pay its debts as such debts become due; or
(f) The Company or any of its Material Subsidiaries shall (i) apply for or consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all or a substantial part of
its property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code (as now or hereafter
in effect), (iv) file a petition seeking to take advantage of any other law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any corporate action
for the purpose of effecting any of the foregoing; or
(g) A proceeding or case shall be commenced, without the application or
consent of the Company or any of its Material Subsidiaries, in any court of
competent jurisdiction, seeking (i) its liquidation, reorganization,
dissolution or winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like
of the Company or such Subsidiary or of all or any substantial part of its
assets, or (iii) similar relief in respect of the Company or such Subsidiary
under any law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts, and such proceeding or case shall
continue undismissed, or an order, judgment or decree approving or ordering any
of the foregoing shall be entered and continue unstayed and in effect, for a
period of 60 or more days; or an order for relief against the Company or such
Subsidiary shall be entered in an involuntary case under the Bankruptcy Code;
or
(h) A final judgment or judgments for the payment of money in excess of $200,000,000 in the aggregate shall be rendered by a court or courts against the Company and/or any of its Subsidiaries and the same shall not be discharged (or provision shall not be made for such discharge), or a stay of execution thereof shall not be procured, within 30 days from the date of entry thereof and the Company or the relevant Subsidiary shall not, within said period of 30 days, or such longer period during which execution of the same shall have been stayed, appeal therefrom and cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 6.01(e) shall occur or exist with respect to any Plan or Multiemployer Plan and, as a result of such event or condition, together with all other such events or conditions, the Company or any ERISA Affiliate shall be reasonably likely in the opinion of the General Counsel of the Company to incur a liability to a Plan, a Multiemployer Plan or PBGC (or any combination of the foregoing) which is in excess of 10% of Consolidated Net Worth; or
(j) Any person or group of persons (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as amended, it being agreed that an employee of the Company or any Consolidated Subsidiary for whom shares are held under an employee stock ownership, employee retirement, employee savings
or similar plan and whose shares are voted in accordance with the instructions of such employee shall not be a member of a group of persons within the meaning of said Section 13 or 14 solely because such employee's shares are held by a trustee under said plan) shall acquire, directly or indirectly, beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under said Act, as amended) of 20% or more of the outstanding shares of stock of the Company having by the terms thereof ordinary voting power to elect (whether immediately or ultimately) a majority of the board of directors of the Company (irrespective of whether or not at the time stock of any other class or classes of stock of the Company shall have or might have voting power by reason of the happening of any contingency);
(k) During any period of 25 consecutive calendar months, a majority of the
board of directors of the Company shall no longer be composed of individuals
(i) who were members of said board or directors on the first day of such period
or (ii) whose election or nomination to said board of directors was approved by
individuals referred to in clause (i) above constituting at the time of such
election or nomination at least a majority of said board of directors; or
(l) The Merger shall not have been consummated on the terms set forth in the Merger Agreement within 180 days after the Closing Date;
THEREUPON: (1) in the case of an Event of Default other than one referred to in
clause (f) or (g) of this Article VII with respect to any Obligor, (A) the
Administrative Agent may and, upon request of the Required Lenders, shall, by
notice to the Company, cancel the Commitments and they shall thereupon
terminate, and (B) the Administrative Agent may and, upon request of Lenders
holding more than 50% of the aggregate unpaid principal amount of the Loans
(including Competitive Loans) shall, by notice to the Company, declare the
principal amount then outstanding of, and the accrued interest on, the Loans and
all other amounts payable by the Obligors hereunder (including any amounts
payable under Section 2.14) to be forthwith due and payable, whereupon such
amounts shall be immediately due and payable without presentment, demand,
protest or other formalities of any kind, all of which are hereby expressly
waived by each Obligor; and (2) in the case of the occurrence of an Event of
Default referred to in clause (f) or (g) of this Article VII with respect to any
Obligor, the Commitments shall automatically be canceled and the principal
amount then outstanding of, and the accrued interest on, the Loans and all other
amounts payable by the Obligors hereunder (including any amounts payable under
Section 2.14) shall automatically become immediately due and payable without
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by each Obligor.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and such Person and its Affiliates may accept deposits from, lend money to and generally engage in any kind of business with the Company or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent is required to exercise in writing by the Required Lenders, and (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the bank serving as Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall be deemed not to have knowledge of any Default unless and until written notice thereof is given to the Administrative Agent by the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article V or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to be made by the proper
Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent.
The Administrative Agent may resign at any time by notifying the Lenders and the Company. Upon any such resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent's resignation shall nonetheless become effective and (1) the retiring Administrative Agent shall be discharged from its duties and obligations hereunder and (2) the Required Lenders shall perform the duties of the Administrative Agent (and all payments and communications provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly) until such time as the Required Lenders appoint a successor agent as provided for above in this paragraph. Upon the acceptance of its appointment as Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring (or retired) Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder (if not already discharged therefrom as provided above in this paragraph). The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the Administrative Agent's resignation hereunder, the provisions of this Article VIII and Section 9.03 shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. Except in the case of notices and other communications expressly permitted to be given by telephone, all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a) if to the Company or the Subsidiary Borrower, to the Company at Office of the Treasurer, Two Manhattanville Road, Purchase, New York 10577, Attention of Vice President - Finance (Telecopy No. (914) 397-1909; Telephone No. (914) 397-1500);
(b) if to the Administrative Agent, to Credit Suisse First Boston, Eleven Madison Avenue, New York, New York 10010, Attention of David Kratovil, (Telecopy No. (212) 325-8615; Telephone No. (212) 325-9155; and
(c) if to a Lender, to it at its address (or telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto (or, in the case of any such change by a Lender, by notice to the Company and the Administrative Agent). All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02 Waivers; Amendments.
(a) No Deemed Waivers; Remedies Cumulative. No failure or delay by the Administrative Agent or any Lender in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any Obligor therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default at the time.
(b) Amendments. Neither this Agreement nor any provision hereof may be waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by each Obligor and the Required Lenders or by each
Obligor and the Administrative Agent with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the scheduled date of payment of the principal amount of any Loan, or
any interest thereon, or any fees payable hereunder, or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date of expiration
of any Commitment, without the written consent of each Lender affected thereby,
(iv) alter the manner in which payments or prepayments of principal, interest
or other amounts hereunder shall be applied as among the Lenders or Types or
Classes of Loans, without the written consent of each Lender, or (v) change any
of the provisions of this Section or the percentage in the definition of the
term "Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to waive, amend or modify any rights hereunder
or make any determination or grant any consent hereunder or release the
Guarantor's obligations in respect of the Subsidiary Borrower, without the
written consent of each Lender; and provided further that no such agreement
shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent hereunder without the prior written consent of the
Administrative Agent.
SECTION 9.03 Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the Administrative Agent and its Affiliates, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent, in connection with the syndication of the credit facilities provided for herein, the preparation and administration of this Agreement or any amendments, modifications or waivers of the provisions hereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (ii) all out-of-pocket expenses incurred by the Administrative Agent or any Lender, including the fees, charges and disbursements of any counsel for the Administrative Agent, or any Lender, in connection with the enforcement or protection of its rights in connection with this Agreement, including its rights under this Section, or in connection with the Loans made hereunder, including in connection with any workout, restructuring or negotiations in respect thereof.
(b) Indemnification by the Company. The Company shall indemnify the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an "Indemnitee") against, and to hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement or any agreement or instrument contemplated hereby, the performance by the parties hereto of their respective obligations hereunder or the consummation of the transactions contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, (iii) any actual or alleged presence or release of hazardous materials on or from any property owned or operated by the
Company or any of its Subsidiaries, or any environmental liability related in any way to the Company or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee.
(c) Reimbursement by Lenders. To the extent that the Company fails to pay any amount required to be paid by it to the Administrative Agent under paragraph (a) or (b) of this Section, each Lender severally agrees to pay to the Administrative Agent such Lender's pro rata portion of such unpaid amount (determined according to their respective portions of the Total Credit Exposure in effect as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such.
(d) Waiver of Consequential Damages, Etc. To the extent permitted by applicable law, no Obligor shall assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the transactions contemplated hereby, any Loan or the use of the proceeds thereof.
(e) Payments. All amounts due under this Section shall be payable promptly after written demand therefor.
SECTION 9.04 Successors and Assigns.
(a) Assignments Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that no Obligor may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by any Obligor without such consent shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the case of an assignment to a Lender or an Affiliate of a Lender, each of the Company and the Administrative Agent must give their prior written consent to such assignment (which consent shall not be unreasonably withheld or delayed),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender's Commitment, the amount of the Commitment of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Acceptance with respect to such assignment is delivered to the Administrative Agent) shall be not less than $20,000,000 unless each of the Company and the Administrative Agent otherwise consent,
(iii) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender's rights and obligations under this Agreement, except that this clause (iii) shall not apply to rights in respect of outstanding Competitive Loans,
(iv) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire;
provided further that any consent of the Company otherwise required under this paragraph shall not be required if an Event of Default under clause (f) or (g) of Article VII has occurred and is continuing. Upon acceptance and recording pursuant to paragraph (d) of this Section, from and after the effective date specified in each Assignment and Acceptance, the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Acceptance, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Acceptance, be released from its obligations under this Agreement (and, in the case of an Assignment and Acceptance covering all of the assigning Lender's rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 9.03). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (e) of this Section.
Notwithstanding anything to the contrary contained herein, any Lender (a "Granting Bank") may grant to a special purpose funding vehicle (an "SPC"), identified as such in writing from time to time by the Granting Bank to the Administrative Agent and the Borrowers, the option to provide to the Borrowers all or any part of any Loan that
such Granting Bank would otherwise be obligated to make to the Borrowers
pursuant to this Agreement; provided, that (i) nothing herein shall constitute
a commitment by any SPC to make any Loan and (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Loan, the Granting Bank shall be obligated to make such Loan pursuant to the
terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Bank to the same extent, and as if, such Loan were
made by such Granting Bank. Each party hereto hereby agrees that no SPC shall
be liable for any indemnity or similar payment obligation under this Agreement
(all liability for which shall remain with the Granting Bank). In furtherance
of the foregoing, each party hereto hereby agrees (which agreement shall
survive the termination of this Agreement) that, prior to the date that is one
year and one day after the payment in full of all outstanding commercial paper
or other senior indebtedness of any SPC, it will not institute against, or join
any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 9.04, any SPC may (i) with
notice to, but without the prior written consent of, the respective Borrower
and the Administrative Agent and without paying any processing fee therefor,
(x) assign all or any portion of its interest in any Loans to the Granting Bank
and (y) pledge all or a portion of its interests in any Loans to the Granting
Bank or to any financial institutions (consented to by the respective Borrower
and Administrative Agent) providing liquidity and/or credit support to or for
the account of such SPC to support the funding or maintenance of Loans (and
assign to the Granting Bank and to any such financial institution any such
Loans upon a realization in respect of such pledge or in connection with the
performance by such financial institution of its liquidity or credit support
obligations) and (ii) disclose on a confidential basis any non-public
information relating to its Loans to any rating agency, commercial paper dealer
or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC, subject to the requirements of Section 9.13(b)(vi).
(c) Maintenance of Register by the Administrative Agent. The Administrative Agent, acting for this purpose as an agent of the Borrowers, shall maintain at one of its offices in New York City a copy of each Assignment and Acceptance delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the "Register"). The entries in the Register shall be conclusive, and the Borrowers, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(d) Effectiveness of Assignments. Upon its receipt of a duly completed Assignment and Acceptance executed by an assigning Lender and an assignee, the assignee's completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Participations. Any Lender may, without the consent of either Borrower or the Administrative Agent, sell participations to one or more banks or other entities (a "Participant") in all or a portion of such Lender's rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans owing to it); provided that (i) such Lender's obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the respective Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender's rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 9.02(b) that affects such Participant. Subject to paragraph (f) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.13, 2.14, 2.15 and 2.16 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section.
(f) Limitations on Rights of Participants. A Participant shall not be entitled to receive any greater payment under Section 2.13, 2.15 or 2.16 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the respective Borrower's prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.15 unless the Borrowers are notified of the participation sold to such Participant and such Participant agrees, for the benefit of the respective Borrower, to comply with Section 2.15(e) as though it were a Lender.
(g) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including any such pledge or assignment to a Federal Reserve Bank, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such assignee for such Lender as a party hereto.
(h) No Assignments to the Borrowers or Affiliates. Anything in this
Section to the contrary notwithstanding, no Lender may assign or participate
any interest
in any Loan held by it hereunder to either Borrower or any of its Affiliates or Subsidiaries without the prior consent of each Lender.
SECTION 9.05 Survival. All covenants, agreements, representations and warranties made by any Obligor herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of Sections 2.13, 2.14, 2.15, 2.16 and 9.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06 Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract between and among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 5.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page to this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
SECTION 9.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender to or for the credit or the account of any Obligor against any of and all the obligations of such Obligor now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations may be unmatured. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have.
SECTION 9.09 Governing Law; Jurisdiction; Etc.
(a) Governing Law. This Agreement shall be construed in accordance with and governed by the law of the State of New York.
(b) Submission to Jurisdiction. Each Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to this Agreement against any Obligor or its properties in the courts of any jurisdiction.
(c) Waiver of Venue. Each Obligor hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(d) Service of Process. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 9.01. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10 Judgment Currency. This is an international loan transaction in which the specification of Dollars and payment in New York, New York is of the essence and with respect to all Loans, Dollars shall be the currency of account in all events. The payment obligations of the Obligors with respect to any Loans under this Agreement shall not be discharged by an amount paid in a currency other than Dollars or in a place other than New York, New York, whether pursuant to a judgment or otherwise
to the extent that the amount so paid on conversion into Dollars and transfer to New York, New York does not yield the amount of Dollars due hereunder.
SECTION 9.11 Waiver Of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) 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 (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.12 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
SECTION 9.13 Treatment of Certain Information; Confidentiality.
(a) Treatment of Certain Information. Each Obligor acknowledges that from
time to time financial advisory, investment banking and other services may be
offered or provided to the Company or one or more of its Subsidiaries (in
connection with this Agreement or otherwise) by any Lender or by one or more
subsidiaries or affiliates of such Lender and each Obligor hereby authorizes
each Lender to share any information delivered to such Lender by the Company
and its Subsidiaries pursuant to this Agreement, or in connection with the
decision of such Lender to enter into this Agreement, to any such subsidiary or
affiliate, it being understood that any such subsidiary or affiliate receiving
such information shall be bound by the provisions of paragraph (b) of this
Section as if it were a Lender hereunder. Such authorization shall survive the
repayment of the Loans, the expiration or termination of the Commitments or the
termination of this Agreement or any provision hereof.
(b) Confidentiality. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (i) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (ii) to the
extent requested by any regulatory authority, (iii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iv) to any other party to
this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this paragraph, to any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement, (vii) with the consent of the Company or (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this paragraph or (B) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Company. For the purposes of this paragraph, "Information" means all information received from any Obligor relating to the Company or any of its Subsidiaries (or its business), other than any such information that is available to the Administrative Agent or any Lender on a nonconfidential basis prior to disclosure by the Company; provided that, in the case of information received from an Obligor after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
BORROWERS: INTERNATIONAL PAPER COMPANY
By /s/ John V. Faraci
----------------------------------------
Name: John V. Faraci
Title: Senior Vice President
INTERNATIONAL PAPER FINANCIAL SERVICES,
INC.
By /s/ Angelia B. Peli
----------------------------------------
Name: Angelia B. Peli
Title: Vice President & Assistant
Secretary
|
LENDERS CREDIT SUISSE FIRST BOSTON, individually
and as Administrative Agent, Lead
Arranger and Book Manager
By /s/ David W. Kratovil
----------------------------------------
Name: David W. Kratovil
Title: Director
By /s/ Julia P. Kingsbury
----------------------------------------
Name: Julia P. Kingsbury
Title: Vice President
|
BANK OF AMERICA, N.A., individually and as Co-Syndication Agent
By /s/ Kevin Sullivan
----------------------------------------
Name: Kevin Sullivan
Title: Managing Director
|
DEUTSCHE BANK AG NEW YORK BRANCH, as
Co-Syndication Agent
By /s/ Hans-Josef Thiele
----------------------------------------
Name: Hans-Josef Thiele
Title: Director
By /s/ Oliver Schwarz
----------------------------------------
Name: Oliver Schwarz
Title: Vice President
|
DEUTSCHE BANK AG NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By /s/ Hans-Josef Thiele
----------------------------------------
Name: Hans-Josef Thiele
Title: Director
By /s/ Oliver Schwarz
----------------------------------------
Name: Oliver Schwarz
Title: Vice President
|
CITIBANK, N.A., individually and as Documentation Agent
By /s/ Prakash M. Chonkar
----------------------------------------
Name: Prakash M. Chonkar
Title: Managing Director
|
ABN AMRO BANK N.V., individually and as Senior Managing Agent
By /s/ John Hennessy
----------------------------------------
Name: John Hennessy
Title: Senior Vice President
By /s/ Richard Schrage
----------------------------------------
Name: Richard Schrage
Title: Vice President
|
THE BANK OF NEW YORK, individually and as Senior Managing Agent
By /s/ Eliza S. Adams
----------------------------------------
Name: Eliza S. Adams
Title: Vice President
|
BANK ONE, NA (Main Office Chicago), individually and as Senior Managing Agent
By /s/ Judy Lubatkin
----------------------------------------
Name: Judy Lubatkin
Title: Vice President
|
BNP PARIBAS, individually and as Senior Managing Agent
By /s/ S. Kaufman
----------------------------------------
Name: Sophie Revillard Kaufman
Title: Vice President
By /s/ G. E. Abbott
----------------------------------------
Name: Gwen Abbott
Title: Vice President
|
THE CHASE MANHATTAN BANK, individually and as Senior Managing Agent
By /s/ James H. Ramage
----------------------------------------
Name: James H. Ramage
Title: Managing Director
|
COMMERZBANK A.G., NEW YORK BRANCH,
individually and as Senior Managing
Agent
By /s/ Robert J. Donohue
----------------------------------------
Name: Robert J. Donohue
Title: Senior Vice President
By /s/ Andrew P. Lusk
----------------------------------------
Name: Andrew P. Lusk
Title: Assistant Treasurer
|
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW
YORK BRANCH, individually and as Senior
Managing Agent
By /s/ Cynthia M. Niesen
----------------------------------------
Name: Cynthia M. Niesen
Title: Managing Director
By /s/ Walter T. Duffy III
----------------------------------------
Name: Walter T. Duffy III
Title: Associate Director
|
BANCA COMMERCIALE ITALIANA, New York
Branch individually and as Co-Agent
By /s/ J. Dickerhof
----------------------------------------
Name: J. Dickerhof
Title: Vice President
By /s/ Charles Dougherty
----------------------------------------
Name: C. Dougherty
Title: Vice President
|
BANCA NAZIONALE DEL LAVORO S.p.A. - NEW
YORK BRANCH, individually and as
Co-Agent
By /s/ Leonardo Valentini
----------------------------------------
Name: Leonardo Valentini
Title: First Vice President
By /s/ Carlo Vecchi
----------------------------------------
Name: Carlo Vecchi
Title: Senior Vice President
|
BBL INTERNATIONAL (U.K.) LIMITED,
individually and as Co-Agent
By /s/ M-C Swinnen
----------------------------------------
Name: M-C Swinnen
Title: Authorized Signatory
By /s/ C. F. Wright
----------------------------------------
Name: C. F. Wright
Title: Authorized Signatory
|
THE BANK OF NOVA SCOTIA, individually and as Co-Agent
By /s/ John Hopmans
----------------------------------------
Name: John Hopmans
Title: Managing Director
|
BANK OF TOKYO-MITSUBISHI TRUST COMPANY,
individually and as Co-Agent
By /s/ R. L. Van de Berghe
----------------------------------------
Name: R. L. Van de Berghe
Title: Vice President
|
THE DAI-ICHI KANGYO BANK, LTD.
individually and as Co-Agent
By /s/ Matthew G. Murphy
----------------------------------------
Name: Matthew G. Murphy
Title: Vice President
|
FLEET NATIONAL BANK, individually and as Co-Agent
By /s/ William F. Hamilton
----------------------------------------
Name: William F. Hamilton
Title: Director
|
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW
YORK BRANCH, individually and as
Co-Agent
By /s/ Marianne Weinzinger
----------------------------------------
Name: Marianne Weinzinger
Title: Director
By /s/ Marie Welling
----------------------------------------
Name: Marie Welling
Title: Director
|
THE INDUSTRIAL BANK OF JAPAN TRUST
COMPANY, individually and as Co-Agent
By /s/ Takuya Honjo
----------------------------------------
Name: Takuya Honjo
Title: Deputy General Manager
|
SANPAOLO IMI S.p.A, individually and as Co-Agent
By /s/ Carlo Persico
----------------------------------------
Name: Carlo Persico
Title: D. G. M.
By /s/ Robert Wurster
----------------------------------------
Name: Robert Wurster
Title: First Vice President
|
MERRILL LYNCH BANK USA., individually and as Co-Agent
By /s/ Preston L. Jackson
----------------------------------------
Name: Preston L. Jackson
Title: President
|
NATIONAL AUSTRALIA BANK LIMITED,
individually and as Co-Agent
A.C.N. 004044937
By /s/ Susan R. Julien
----------------------------------------
Name: Susan R. Julien
Title: Vice President
|
SVENSKA HANDELSBANKEN AB (publ),
individually and as Co-Agent
By /s/ Mark Cleary
----------------------------------------
Name: Mark Cleary
Title: Senior Vice President
By /s/ Henrik Jensen
----------------------------------------
Name: Henrik Jensen
Title: Vice President
|
TORONTO DOMINION (TEXAS), INC.,
individually and as Co-Agent
By /s/ Carolyn R. Faeth
----------------------------------------
Name: Carolyn R. Faeth
Title: Vice President
|
WACHOVIA BANK, N.A., individually and as Co-Agent
By /s/ William C. Christie
----------------------------------------
Name: William C. Christie
Title: Senior Vice President
|
BANCA DI ROMA - NEW YORK BRANCH
By /s/ Steven Paley
----------------------------------------
Name: Steven Paley
Title: First Vice President
By /s/ Alessandro Paoli
----------------------------------------
Name: Alessandro Paoli
Title: Asst. Treasurer
|
BANCO SANTANDER CENTRAL HISPANO, S.A.,
acting through its New York Branch
By /s/ D. Rodriguez
----------------------------------------
Name: D. Rodriguez
Title: Vice President
By /s/ Robert E. Schlegal
----------------------------------------
Name: Robert E. Schlegal
Title: Vice President
|
BAYERISCHE LANDESBANK
By /s/ Alexander Kohnert
----------------------------------------
Name: Alexander Kohnert
Title: First Vice President
By /s/ James Fox
----------------------------------------
Name: James Fox
Title: Vice President
|
CoBANK, ACB
By /s/ Brian J. Klatt
----------------------------------------
Name: Brian J. Klatt
Title: Vice President
|
DG BANK
DEUTSCHE GENOSSENSCHAFTSBANK AG
By /s/ S. Wendt
----------------------------------------
Name: Sabine Wendt
Title: Vice President
By /s/ Lynne McCarthy
----------------------------------------
Name: Lynne McCarthy
Title: Vice President
|
FORTIS (USA) FINANCE LLC
By /s/ Eddie Matthews
----------------------------------------
Name: Eddie Matthews
Title: Senior Vice President
By /s/ Robert Fakhou
----------------------------------------
Name: Robert Fakhou
Title: Treasurer
|
MELLON BANK N.A.
By /s/ Leonard M. Karpen, Jr.
----------------------------------------
Name: Leonard M. Karpen, Jr.
Title: Vice President
|
BANCA MONTE DEI PASCHI DI SIENA S.p.A.
By /s/ Serge M. Sondak
----------------------------------------
Name: Serge M. Sondak
Title: FVP & Deputy General Manager
By /s/ Brian R. Landy
----------------------------------------
Name: Brian R. Landy
Title: Vice President
|
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By /s/ Dennis Witczek
----------------------------------------
Name: Dennis Witczek
Title: Associate
|
THE SAKURA BANK, LIMITED
By /s/ Yoshikazu Nagura
----------------------------------------
Name: Yoshikazu Nagura
Title: Senior Vice President
|
THE SANWA BANK LIMITED
By /s/ Stephen C. Small
----------------------------------------
Name: Stephen C. Small
Title: Senior Vice President & Area
Manager
|
SUNTRUST BANK
By /s/ W. David Wisdom
----------------------------------------
Name: W. David Wisdom
Title: Vice President
|
CAISSE DES DEPOTS ET CONSIGNATIONS
By /s/ Florence Soule De Lafont
----------------------------------------
Name: Florence Soule De Lafont
Title: Head of Structured Finance
By /s/ Bart Le Blanc
----------------------------------------
Name: Bart Le Blanc
Title: Director, International Finance
|
CREDIT AGRICOLE INDOSUEZ
By /s/ Craig Welch
----------------------------------------
Name: Craig Welch
Title: Managing Director
By /s/ John McCloskey
----------------------------------------
Name: John McCloskey
Title: First Vice President
|
FIRSTAR BANK, N.A.
By /s/ Kirk A. Porter
----------------------------------------
Name: Kirk A. Porter
Title: Senior Vice President
|
NORDDEUTSCHE LANDESBANK GIROZENTRALE NEW
YORK BRANCH AND/OR CAYMAN ISLANDS BRANCH
By /s/ Josef Haas
----------------------------------------
Name: Josef Haas
Title: Vice President
By /s/ Stephen K. Hunter
----------------------------------------
Name: Stephen K. Hunter
Title: Senior Vice President
|
Schedule I to Credit Agreement
SCHEDULE I
COMMITMENTS
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ---- -------- ---------------
Credit Suisse First Boston $74,590,163.93 $100,409,836.07 $175,000,000.00
Syndicated Finance Group
21st Floor
Eleven Madison Avenue
New York, NY 10010
Attention: Yvette McQueen
Tel: (212) 325-9934
Fax: (212) 325-8304
Bank of America, N.A. $66,065,573.77 $88,934,426.23 $155,000,000.00
1850 Gateway Blvd.
Concord, CA 94520-3282
Attention: Anna Marie Finn
Tel: (925) 675-8312
Fax: (925) 969-2844
Deutsche Bank AG New York Branch $66,065,573.77 $88,934,426.23 $155,000,000.00
and/or Cayman Islands Branch
1251 Avenue of the Americas,
26th Floor
New York, NY 10019
Attention: Richard Agnolet
Tel: (212) 469-4113
Fax: (212) 474-7880
S-I-1
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ---- -------- ---------------
Citibank, N.A. $66,065,573.77 $88,934,426.23 $155,000,000.00
399 Park Avenue
New York, NY 10043
Attention:
Tel: (212)
Fax: (212)
ABN AMRO Bank N.V. $44,754,098.36 $60,245,901.64 $105,000,000.00
208 South LaSalle
Suite 1500
Chicago, IL 60604-1003
Attention: Loan
Administration
Tel: (312) 992-5153
Fax: (312) 992-5158
The Bank of New York $44,754,098.36 $60,245,901.64 $105,000,000.00
One Wall Street
19th Floor
New York, NY 10286
Attention:
Tel: (212) 635-7921
Fax: (212) 635-7926
BankOne N.A. $44,754,098.36 $60,245,901.64 $105,000,000.00
1 Bank One Plaza, Suite 0634
Chicago, Illinois 60670
Attention: Nanette Wilson
Tel: (312) 732-1221
Fax: (312) 732-4840
S-I-2
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ---- -------- ---------------
BNP Paribas $44,754,098.36 $60,245,901.64 $105,000,000.00
499 Park Avenue
New York, NY 10022
Attention: Andree S. Mitton/
Robin L. Jackson-
Bogner
Tel: (212) 415-9617/415-9616
Fax: (212) 415-9606
The Chase Manhattan Bank $44,754,098.36 $60,245,901.64 $105,000,000.00
270 Park Avenue, 23rd Floor
New York, NY 10017
Attention:
Tel: (212)
Fax: (212)
Commerzbank A.G., New York $44,754,098.36 $60,245,901.64 $105,000,000.00
and Grand Cayman Branches
Two World Financial Center
New York, NY 10281-1050
Attention: Al Caputo
Tel: (212) 266-7694
Fax: (212) 266-7204
Westdeutsche Landesbank $44,754,098.36 $60,245,901.64 $105,000,000.00
Girozentrale,
New York Branch
1211 Avenue of the Americas
New York, NY 10036
Attention: Phil Green
Tel: (212) 852-6113
Fax: (212) 302-7946
S-I-3
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ---- -------- ---------------
Banca Commerciale Italiana $27,704,918.03 $37,295,081.97 $65,000,000.00
One William Street
New York, NY 10004
Attention: Jonathan Sahr
Tel: (212) 607-3814
Fax: (212) 607-3897
Banca Nazionale del Lavoro, $27,704,918.03 $37,295,081.97 $65,000,000.00
New York Branch
25 West 51st Street
New York, NY 10019
Attention: Ana Hernandez
Tel: (212) 314-0679
Fax: (212) 765-2978
BBL International (U.K.) Limited $27,704,918.03 $37,295,081.97 $65,000,000.00
6 Broadgate
London, EC2M 2AJ
England
Attention: Tessa Baptiste/
Jeremy Hayes/Karen Bowman
Tel: 44-207-392-5517/ 5586/5583
Fax: 44-207-562-0210
The Bank of Nova Scotia $27,704,918.03 $37,295,081.97 $65,000,000.00
One Liberty Plaza, 24th Floor
New York, NY 10006
Attention: Jessica Griffiths
Tel: (212) 225-5066
Fax: (212) 225-5145
S-I-4
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ---- -------- ---------------
Bank of Tokyo-Mitsubishi Trust
Company $27,704,918.03 $37,295,081.97 $65,000,000.00
1251 Avenue of the Americas
12th Floor
New York, NY 10020-1104
Attention: Rolando Uy,
BT Information
Services, Inc.
Tel: (201) 413-8570
Fax: (201) 521-2304
(201) 521-2305
The Dai-Ichi Kangyo Bank, Ltd. $27,704,918.03 $37,295,081.97 $65,000,000.00
1 World Trade Center
48th Floor
New York, NY 10048
Attention: Dawnmarie Matos
Tel: (212) 432-6643
Fax: (212) 524-0049
Fleet National Bank $27,704,918.03 $37,295,081.97 $65,000,000.00
100 Federal Street
Mailstop: MA-DE-103076
Boston, MA 02110
Attention: Judy Vetters
Tel: (617) 346-4928
Fax: (617) 346-0595
S-I-5
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- -------------- -------------- ---------------
Bayerische Hypo-und $27,704,918.03 $37,295,081.97 $65,000,000.00
Vereinsbank AG, New York
Branch
150 East 42nd Street
New York, NY 10017
Attention: Arelis Cepeda
Tel: (212) 672-5495
Fax: (212) 672-5691
The Industrial Bank of Japan, Ltd. $27,704,918.03 $37,295,081.97 $65,000,000.00
1251 Avenue of the Americas
New York, NY 10020
Attention: Umesh Patel
Tel: (212) 282-4085
Fax: (212) 282-4480
SanPaolo IMI S.p.A. $27,704,918.03 $37,295,081.97 $65,000,000.00
245 Park Avenue
35th Floor
New York, NY 10167
Attention: Robert Mancini/
Francine Larsen
Tel: (212) 692-3163/
(212) 692-3155
Fax: (212) 692-3178
Merrill Lynch Bank USA $27,704,918.03 $37,295,081.97 $65,000,000.00
15 W. South Temple
Suite 300
SLC, UT 84101
Attention: Frank Stepan
Tel: (801) 526-8316
Fax: (801) 521-6466
S-I-6
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- -------------- -------------- ---------------
National Australia Bank Limited, $27,704,918.03 $37,295,081.97 $65,000,000.00
A.C.N. 004044937
200 Park Avenue, 34th Floor
New York, NY 10166
Attention: Elliot Soto/
Alina Grajewski
Tel: (212) 916-9539/9536
Fax: (212) 490-8087
Svenska Handelsbanken AB (publ) $27,704,918.03 $37,295,081.97 $65,000,000.00
153 East 53rd Street, 37th Floor
New York, NY 1--22-4678
Attention: Sophia Ng
Tel: (212) 326-5147
Fax: (212) 326-5110
Toronto Dominion (Texas), Inc. $27,704,918.03 $37,295,081.97 $65,000,000.00
909 Fannin Street
17th Floor
Houston, TX 77010
Attention: Sheila Conley
Tel: (713) 653-8250
Fax: (713) 951-9921
Wachovia Bank, N.A. $27,704,918.03 $37,295,081.97 $65,000,000.00
191 Peachtree Street, NE
Atlanta, GA 30303
Attention: William C. Christre
Tel: (404) 332-1434
Fax: (404) 332-6898
S-I-7
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ----------- -------- ---------------
Banca di Roma - New York Branch $21,311,475.41 $28,688,524.59 $50,000,000.00
34 East 51st Street
New York, NY 10022
Attention: Salvatore Rappa
Tel: (212) 407-1812
Fax: (212) 407-1684
Banco Santander - Central Hispano $21,311,475.41 $28,688,524.59 $50,000,000.00
S.A., New York Branch
45 East 53rd Street
New York, NY 1--22
Attention: Ligia Castro
Tel: (212) 350-3677
Fax: (212) 350-3647
Bayerische Landesbank Girozentrale, $21,311,475.41 $28,688,524.59 $50,000,000.00
Cayman Islands Branch
560 Lexington Avenue
New York, NY 10022
Attention: Patricia Sanchez
Tel: (212) 310-9810
Fax: (212) 310-9930
CoBank, ACB $21,311,475.41 $28,688,524.59 $50,000,000.00
Englewood, Colorado
Attention: Kim Lenihan
Tel: (303) 740-6589
Fax: (303) 694-5830
S-I-8
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ----------- -------- ---------------
DG Bank $21,311,475.41 $28,688,524.59 $50,000,000.00
Deutsche Genossenschaftsbank AG
609 Fifth Avenue
New York, NY 10017-1021
Attention: Ed Thome
Tel: (212) 745-1464
Fax: (212) 745-1422
Fortis USA Finance LLC $21,311,475.41 $28,688,524.59 $50,000,000.00
520 Madison Avenue
3rd Floor
New York, NY 10022
Attention: Stephanie Garceau
Tel: (212) 418-8752
Fax: (212) 750-9503
Mellon Bank, N.A. $21,311,475.41 $28,688,524.59 $50,000,000.00
3 Mellon Bank Center, 12th Floor
Pittsburgh, PA 15259
Attention: Sanford Richards
Tel: (412) 209-6118
Fax: (412) 234-8285
Banca Monte dei Paschi di
Siena S.P.A. $21,311,475.41 $28,688,524.59 $50,000,000.00
55 East 59th Street
New York, NY 10022
Attention: Mai Tam
Tel: (212) 891-3649
Fax: (212) 891-3661
S-I-9
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ----------- -------- ---------------
Morgan Guaranty Trust Company of
New York $21,311,475.41 $28,688,524.59 $50,000,000.00
c/o J.P. Morgan Services Inc.
500 Stanton Christiana Road
Newark, DE 19713
Attention: Mildred Pizarro
Tel: (302) 634-4194
Fax: (302) 634-1852
The Sakura Bank, Limited $21,311,475.41 $28,688,524.59 $50,000,000.00
101 Park Avenue
15th Floor
New York, NY 10178
Attention: Stephen Chan
Tel: (212) 909-4554
Fax: (212) 909-4599
The Sanwa Bank, Ltd. $21,311,475.41 $28,688,524.59 $50,000,000.00
55 East 52nd Street
New York, NY 10055
Attention: Marlin Chin
Tel: (212) 339-6392
Fax: (212) 754-2368
SunTrust Bank $21,311,475.41 $28,688,524.59 $50,000,000.00
25 Park Place
21st Floor, center 112
Atlanta, GA 30303
Attention: Datanian Oldham
Tel: (404) 230-1947
Fax: (404) 575-2730
S-I-10
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ----------- -------- ---------------
Caisse des Depots et Consignations $10,655,737.70 $14,344,262.30 $25,000,000.00
137, rue de l'Universite
75007 Paris
France
Attention: Yves Barbeau
Tel: 33-1-40-49-83-61
Fax: 33-1-40-49-972-29
Credit Agricole Indosuez $10,655,737.70 $14,344,262.30 $25,000,000.00
55 E. Monroe
Chicago, IL 60603
Attention: Wilma Persenaire/
Kimberly Wilp
Tel: (312) 917-7424/ 7450
Fax: (312) 372-4421
Firstar Bank, N.A. $10,655,737.70 $14,344,262.30 $25,000,000.00
Capital Markets Division
Tram 12-3
One Firstar Plaza
St. Louis, Missouri 63101-1643
Attention: Sharon Dent
Tel: (314) 418-2396
Fax: (314) 418-3571
S-I-11
|
Name and Address 2-Year Term 364-Day Total
for Notices of Lender Loan Revolver Commitment
--------------------- ----------- -------- ---------------
Norddeutsche Landesbank $10,655,737.70 $14,344,262.30 $25,000,000.00
Girozentrale New York Branch
and/or Cayman Islands Branch
1114 Avenue of the Americas,
37th Floor
New York, NY 10036
Attention: Holger Bretz
Tel: (212) 812-6983
Fax: (212) 812-6860
-------------- -------------- --------------
TOTAL: $1,300,000,000 $1,750,000,000 $3,050,000,000
|
S-I-12
SCHEDULE II
Material Agreements
Attached hereto is a list of all debt instruments or facilities of International Paper Company and its subsidiaries with outstanding balances or commitments of at least $150,000,000 on June 14, 2000.
None of such debt requires repayment because of the acquisition of Champion International Corporation.
Material Agreements as of June 13, 2000
ISSUE PRINCIPAL AMOUNT TRUSTEE
--------------------------------------- ----------------- ---------------------
8.0% Notes Due 2003 $ 1,200,000,000 The Bank of New York
8-1/8% Notes Due 2005 $ 1,000,000,000 The Bank of New York
Floating Rate Notes Due 2002 $ 800,000,000 The Bank of New York
6-1/8% Notes Due 2003 $ 200,000,000 The Bank of New York
7-5/8% Debentures Due 2023 $ 200,000,000 The Bank of New York
6-7/8% Notes Due 2023 $ 200,000,000 The Bank of New York
7-5/8% Notes Due 2007 $ 200,000,000 The Bank of New York
6.50% Debentures Due 2007 $ 150,000,000 The Bank of New York
7.00% Debentures Due 2006 $ 150,000,000 The Bank of New York
6-7/8% Debentures Due 2029 $ 200,000,000 The Bank of New York
5-1/4% Junior Subordinated Deferrable $ 450,000,000 The Bank of New York
Interest Debentures Due 2025
7-7/8% Junior Subordinated Deferrable $ 805,000,000 The Bank of New York
Interest Debentures Due 2038
7-7/8% Notes Due 2006 $ 150,000,000 The Chase Manhattan Bank
7-5/8% Notes Due 2004 $ 150,000,000 The Chase Manhattan Bank
7.50% Notes Due 2004 $ 150,000,000 The Chase Manhattan Bank
8-1/8% Notes Due 2024 $ 150,000,000 The Chase Manhattan Bank
6-7/8% Notes Due 2000 $ 175,000,000 The Chase Manhattan Bank
7.00% Notes Due 2001 $ 250,000,000 The Chase Manhattan Bank
5-3/8% Euro Notes Due 2006 $ 238,175,000 Deutsche Bank
9.77% Notes Due 2009 $ 180,000,000 n.a.-- private placement
7-1/2% City of Selma IDB, 1994 Series due $ 298,265,135 n.a.-- guaranteed and currently
2024 held by International Paper
7.005% Preferred Stock-- TCCII $ 170,000,000 n.a.-- private placement
$550 mm Variable Rate Preferred Stock $ 550,000,000 n.a.-- private placement
OTHER PRINCIPAL AMOUNT LENDER
--------------------------------------- ----------------- ---------------------
Bank Borrowing-- NZD $ 190,667,725.52 National Australia Bank
Bank Borrowing-- NZD $ 192,107,942.37 Deutsche Bank
|
EXHIBIT A
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of June 14, 2000 (as amended and in effect on the date hereof, the "Credit Agreement"), among International Paper Company, International Paper Financial Services, Inc., the Lenders named therein and Credit Suisse First Boston, as Administrative Agent for the Lenders. Terms defined in the Credit Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse, to the Assignee named below, and the Assignee hereby purchases and assumes, without recourse, from the Assignor, effective as of the Assignment Date set forth below, the interests set forth below (the "Assigned Interest") in the Assignor's rights and obligations under the Credit Agreement, including the interests set forth below in the Commitment of the Assignor on the Assignment Date and Competitive Loans and Syndicated Loans owing to the Assignor which are outstanding on the Assignment Date, together with unpaid interest accrued on the assigned Loans to the Assignment Date, and the amount, if any, set forth below of the fees accrued to the Assignment Date for account of the Assignor. The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From and after the Assignment Date (i) the Assignee shall be a party to and be bound by the provisions of the Credit Agreement and, to the extent of the interests assigned by this Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the Assignor shall, to the extent of the interests assigned by this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative Agent together with (i) if the Assignee is a Foreign Lender, any documentation required to be delivered by the Assignee pursuant to Section 2.15(e) of the Credit Agreement, duly completed and executed by the Assignee, and (ii) if the Assignee is not already a Lender under the Credit Agreement, an Administrative Questionnaire in the form supplied by the Administrative Agent, duly completed by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the Administrative Agent pursuant to Section 9.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Closing Date of Assignment
("Assignment Date")1:
Percentage Assigned of
Facility/Commitment (set forth,
to at least 8 decimals, as a
Principal Amount Assigned (and percentage of the Facility and
identifying information as to the aggregate Commitments of
Facility individual Competitive Loans) all Lenders thereunder)
-------- ----------------------------- -------------------------------
Term Loan Commitment Assigned: $ %
Revolving Credit Commitment Assigned
Term Loans:
Revolving Credit Loans:
Competitive Loans:
Fees Assigned (if any):
|
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR], as Assignor
By:___________________________________ Name:
Title:
[NAME OF ASSIGNEE], as Assignee
By:___________________________________
Name:
Title:
The undersigned hereby consent to the within assignment:
INTERNATIONAL PAPER COMPANY
By:_______________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON,
as Administrative Agent
By:_______________________________
Name:
Title:
EXHIBIT B
[Form of Opinion of Counsel to the Company]
__________, 199_
To the Administrative Agent and the Lenders
referred to below
c/o Credit Suisse First Boston, New York Branch
as Administrative Agent
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
I am an Associate General Counsel of International Paper Company, a New York corporation (the "Company") and am acting as counsel to the Company and International Financial Services, Inc., a Delaware corporation (the "Subsidiary Borrower", and together with the Company, the "Borrowers") in connection with the Credit Agreement (the "Credit Agreement") dated as of June 14, 2000, among the Company, the lenders party thereto (the "Lenders") and Credit Suisse First Boston, as Administrative Agent (the "Administrative Agent"), for purposes of delivering this opinion letter pursuant to Section 5.01(a)(ii) of the Credit Agreement. Capitalized terms defined in the Credit Agreement are used herein as therein defined.
In rendering the opinions expressed below, I or attorneys operating under my supervision have examined the following agreements, instruments and other documents:
(a) the Credit Agreement; and
(b) such records of the Company and such other documents as I have deemed necessary as a basis for the opinions expressed below.
In such examination, I or such attorneys have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals and the conformity with authentic original documents of all documents submitted to me as copies. When relevant facts were not independently established, I have relied upon statements of governmental officials and upon representations made in or pursuant to the Credit Agreement and certificates of appropriate representatives of the Company.
In rendering the opinions expressed below, I have assumed, with respect to all of the documents referred to in this opinion letter, that (except, to the extent set forth in the opinions expressed below, as to the Borrowers):
(i) such documents have been duly authorized by, have been duly executed and delivered by, and constitute legal, valid, binding and enforceable obligations of, all of the parties to such documents;
(ii) all signatories to such documents have been duly authorized; and
(iii) all of the parties to such documents are duly organized and validly existing and have the power and authority (corporate or other) to execute, deliver and perform such documents.
Based upon and subject to the foregoing and subject also to the comments and qualifications set forth below, and having considered such questions of law as I have deemed necessary as a basis for the opinions expressed below, I am of the opinion that:
1. The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of New York. The Subsidiary Borrower is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Each Borrower is duly qualified to transact business in all jurisdictions where failure so to qualify would have a material adverse effect on the consolidated financial condition, operations, business or prospects taken as a whole of the Company and its Consolidated Subsidiaries.
2. The execution, deliver and performance by each Borrower of the Credit Agreement and the transactions contemplated thereby are within its corporate powers, have been duly authorized by all necessary corporate action, require no action by or in respect of, or filing with, any governmental body, agency or official and do not violate any applicable provision of law or regulation or any provision of its respective charter or by-laws or any other constitutive documents of such Borrower or result in the breach of, or constitute a default or require any consent under, any indenture or other agreement or instrument to which the Company or any Subsidiary is a party or by which the Company or any of its Subsidiaries or its properties may be bound.
3. Except as disclosed to the Administrative Agent and the Lenders in writing prior to the date hereof, the legal or arbitral proceedings, and proceedings by or before any governmental or regulatory authority or agency, pending or (to my knowledge) threatened against or affecting the Company and/or any of its Subsidiaries, or any properties or rights of the Company and/or any of its Subsidiaries will not result in imposition of liability or assessment against (including seizure of) property in an aggregate amount as to all such proceedings exceeding 10% of Consolidated Net Worth.
4. No authorizations, consents or approvals of, licenses from, filings or registrations with, any governmental or regulatory authority or agency are necessary for the execution, delivery or performance by either Borrower of the Credit Agreement.
(B)-2
5. Neither Borrower is (a) an "investment company" as defined in, or subject to regulation under, the Investment Company Act of 1940, as amended, or (b) a "holding company" as defined in, or subject to regulation under, the Public Utility Holding Company Act of 1935.
The foregoing opinions are limited to matters involving the Federal laws of the United States of America, the Delaware General Corporation Law and the laws of the State of New York, and I do not express any opinion as to the laws of any other jurisdiction.
This opinion letter is provided solely to you by me in my capacity as Vice President and Associate General Counsel of the Company in connection with the above matter and may not be relied upon by you for any other purpose or relied upon by any other Person without, in each instance, my prior written consent.
Very truly yours,
(B)-3
EXHIBIT C
[Form of Opinion of Special New York Counsel to the Company]
__________, 199_
The Administrative Agent and the Lenders
Referred to Below
c/o Credit Suisse First Boston, New York Branch,
as Administrative Agent
Re: International Paper Company
Ladies and Gentlemen:
We have acted as special New York counsel to International Paper Company, a New York corporation (the "Company"), and International Paper Financial Services, Inc., a Delaware corporation (the "Subsidiary Borrower") and, together with the Company, the "Borrowers"), in connection with the Credit Agreement dated as of June 14, 2000 (the "Credit Agreement") among the Borrowers, the various lenders party thereto (the "Lenders") and Credit Suisse First Boston, New York Branch, as Administrative Agent (the "Administrative Agent"). Capitalized terms defined in the Credit Agreement and not otherwise defined herein are used herein as therein defined.
We have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments, and have conducted such other investigations of fact and law, as we have deemed necessary or advisable for purposes of this opinion.
Based upon and subject to the foregoing, and subject to the qualifications and set forth herein, we are the opinion that:
1. The execution, delivery and performance by each Borrower of the Credit Agreement do not contravene any provision of United States federal or New York State law or regulation that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Credit Agreement.
2. The Credit Agreement constitutes a legal, valid and binding agreement of each Borrower, in each case enforceable against such Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors' rights generally and equitable principles of general applicability.
In expressing our opinion in paragraph 2 above, we have assumed that
(i) each Borrower is duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization and (ii) the execution, delivery
and performance by each Borrower of the Credit Agreement are within its
corporate powers, have been duly
(C)-1
authorized by all necessary corporate action, required no action by or in respect of, or filing with, any governmental body, agency or official and do not contravene, or constitute a default under, the articles of certificate of incorporation or bylaws of such Borrower, any provision of applicable law or regulation (other than United States federal and New York State laws and regulations that in our experience are normally applicable to general business corporation in relation to transactions of the type contemplated by the Credit Agreement) or any judgment, injunction, order or decree or any agreement or other instrument binding upon such Borrower.
We express no opinion as to (i) the effect (if any) of any law of any jurisdiction (except the State of New York) in which any Lender is located that may limit the rate of interest that such Lender may charge or collect, (ii) the first sentence of Section 9.09(b) of the Credit Agreement, insofar as such sentence relates to the subject matter jurisdiction of The United States District Court for the Southern District of New York to adjudicate any controversy related to the Credit Agreement or (ii) Section 9.10 of the Credit Agreement.
We are members of the bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the federal laws of the United States of America.
This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by any other person (other than an assignee permitted under Section 9.04(b) of the Credit Agreement) without our prior written consent.
Very truly yours,
(C)-2
EXHIBIT 99.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as of June 14, 2000, by and among International Paper Company (the "Company"), a corporation duly organized and existing under the laws of the State of New York, and the several initial purchasers listed on Schedule I hereto (the "Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated June 7, 2000, by and among the Company and the Purchasers (the "Purchase Agreement"), which provides for the sale by the Company to the Purchasers of $800,000,000 principal amount of its Floating Rate Notes due July 8, 2002 (the "Floating Rate Notes"), $1,200,000,000 principal amount of its 8% Notes due July 8, 2003 (the "Notes due 2003") and $1,000,000,000 principal amount of its 8 1/8% Notes due July 8, 2005 (the "Notes due 2005"). The Notes are to be issued pursuant to the provisions of an Indenture dated as of April 19, 1999 (the "Base Indenture") between the Company and The Bank of New York, as Trustee (the "Trustee"), as supplemented by the Floating Rate Notes Supplemental Indenture, the Notes due 2003 Supplemental Indenture and the Notes due 2005 Supplemental Indenture, each dated as of the Closing Date between the Company and the Trustee (each a "Supplemental Indenture" and collectively, with the Base Indenture, the "Indenture").
In order to induce the Purchasers to enter into the Purchase Agreement, the Company has agreed to provide to each Purchaser and its direct and indirect transferees the registration rights with respect to the Notes set forth in this Agreement. The execution of this Agreement is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e).
"Closing Date" shall mean the Closing Date as defined in the Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and shall also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time.
"Exchange Date" shall have the meaning set forth in Section 2(a)(ii).
"Exchange Notes" means the debt securities of the Company to be
offered to Holders in exchange for Notes pursuant to the Exchange Offer or
otherwise pursuant to a registration of securities containing terms identical to
the Notes for which they are exchanged (except that (i) interest thereon shall
accrue from the last date on which interest was paid on the Notes or, if no such
interest has been paid, from the date of issuance of the Notes, (ii) the
Exchange Notes will not contain terms with respect to transfer restrictions, and
(iii) certain provisions relating to an increase in the stated rate of interest
on the Notes shall be eliminated).
"Exchange Offer" shall mean the exchange offer by the Company of Exchange Notes for all Notes that are Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer registration statement on an appropriate form and all amendments and supplements to such registration statement, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
"Holder" shall mean each Purchaser, for so long as it owns any Registrable Notes, and each of its successors, assigns and direct and indirect transferees who become registered owners of Registrable Notes under the Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the term "Holder" shall include Participating Broker-Dealers (as defined in Section 4(a)).
"Indenture" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Notes; provided that, for purposes of Section 6(b), whenever the consent or approval of Holders of a specified percentage of Registrable Notes is required hereunder, Registrable Notes held by the Company or any of its affiliates (as such term is defined in Rule 405 under the Securities Act) shall not be considered outstanding and shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage or amount.
"Notes" shall mean the Floating Rate Notes, the Notes due 2003, the Notes due 2005, the Registrable Notes, the Exchange Notes and the Private Exchange Notes.
"Offer Termination Date" shall have the meaning set forth in Section 2(a)(iv).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a).
"Private Exchange Notes" shall have the meaning set forth in Section 2(a).
"Prospectus" shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including a prospectus supplement with respect to the terms of the offering of any portion of the Registrable Notes covered by a Shelf Registration Statement, and by all other amendments and supplements to such prospectus, and in each case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Purchasers" shall have the meaning set forth in the preamble.
"Registrable Notes" shall mean the Floating Rate Notes, the Notes due 2003 and the Notes due 2005; provided, however, that such notes shall cease to be Registrable Notes when (i) a Registration Statement with respect to such notes or the resale thereof shall have been declared effective under the Securities Act and such notes shall have been disposed of pursuant to such Registration Statement, (ii) such notes have been sold pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the Securities Act, (iii) such notes shall have ceased to be outstanding or (iv) such notes have been exchanged for Exchange Notes upon consummation of the Exchange Offer.
"Registration Default" shall have the meaning set forth in Section 2(e).
"Registration Expenses" shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement, including without limitation: (i) all SEC, stock exchange or National Association of Securities Dealers, Inc. registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws, (iii) all expenses of any Person in preparing or assisting in preparing, word processing, printing and distributing, at the request of the Company, any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements, Notes and other documents relating to the performance of and compliance with this Agreement, (iv)
all fees and disbursements relating to the qualification of the Indenture under applicable securities laws, (v) the fees and disbursements of the Trustee and its counsel, (vi) the fees and disbursements of counsel for the Company and, in the case of a Shelf Registration Statement, the fees and disbursements of one counsel for the Holders incurred on or before the initial effectiveness of the Shelf Registration Statement, which counsel shall be counsel for the Purchasers or other counsel selected by the Company and not objected to by the Majority Holders ("counsel for the Holders") and (vii) the fees and disbursements of the independent public accountants of the Company, including the expenses of any special audits or comfort letters required by or incident to such performance and compliance, but excluding fees of counsel to the Underwriters or the Holders and underwriting discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the Company filed with the SEC that covers any of the Exchange Notes or the Registrable Notes pursuant to the provisions of this Agreement and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement of the Company pursuant to the provisions of Section 2(b) of this Agreement which covers all of the Registrable Notes ((or Private Exchange Notes) except Registrable Notes that the Holders have elected not to include in such Shelf Registration Statement) or Notes that represent an unsold allotment for the original offering thereof on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such registration statement, including post- effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(1) hereof.
"Trustee" shall have the meaning set forth in the preamble.
"Underwriters" shall have the meaning set forth in Section 3 hereof.
"Underwritten Offering" shall mean a registration in which Registrable Notes are sold to an Underwriter for reoffering to the public.
2. Registration under the Securities Act.
(a) To the extent not prohibited by any applicable law or applicable interpretation of the Staff of the SEC, the Company shall use its reasonable best efforts to cause to be filed an Exchange Offer Registration Statement covering the offer by the Company to the Holders to exchange all of the Registrable Notes for Exchange Notes on or prior to the date that is 150 days after the Closing Date, to have the Exchange Offer Registration Statement declared effective by the SEC on or prior to the date that is 180 days after the Closing Date and remain effective until the closing of the Exchange Offer and to consummate the Exchange Offer on or prior to the date that is 210 days after the Closing Date (or such longer period as may be necessary to complete such Exchange Offer). For purposes hereof, "consummate" shall mean that the Exchange Offer Registration Statement shall have been declared effective, subject to Section 2(b), the period of the Exchange Offer provided in accordance with clause (ii) below shall have expired and all Registrable Notes validly tendered in connection with such Exchange Offer shall have been exchanged for Exchange Notes (assuming the Holder tendering such Notes is not an affiliate of the Company within the meaning of Rule 405 of the Securities Act and is not a broker-dealer tendering Registrable Notes acquired directly from the Company for its own account, acquires the Exchange Notes in the ordinary course of such Holder's business and has no arrangements or understandings with any Person for the purpose of distributing the Exchange Notes and that each such Holder makes a representation to the Company to such effect). The Company shall commence the Exchange Offer by mailing the related exchange offer Prospectus and accompanying documents to each Holder stating, in addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Registration Rights Agreement and that all Registrable Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at least 20 business days or such longer period as may be required by the Securities Act from the date such notice is mailed) (each such date being an "Exchange Date");
(iii) that any Registrable Note not tendered will remain outstanding and continues to accrue interest, but will not retain any rights under this Agreement, other than Notes that represent an unsold allotment for the original offering thereof;
(iv) that Holders electing to have a Registrable Note exchanged pursuant to the Exchange Offer will be required to surrender such Registrable Note, together with the enclosed letters of transmittal, to the institution and at the address specified in the notice prior to the close of business on the last Exchange Date (the "Offer Termination Date"); and
(v) that Holders will be entitled to withdraw their election, not later than the close of business on the Offer Termination Date, by sending to the institution and at the address specified in the notice a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Notes delivered for exchange and a statement that such Holder is withdrawing his election to have such Registration Notes exchanged.
As soon as practicable after the Offer Termination Date, the Company shall:
(A) accept for exchange in accordance with the Exchange Offer Registration Statement and the letter of transmittal Registrable Notes or portions thereof tendered and not validly withdrawn pursuant to the Exchange Offer or the Private Exchange, as the case may be; and
(B) deliver, or cause to be delivered, to the Trustee for cancellation all Registrable Notes or portions thereof so accepted for exchange by the Company and issue, and cause the Trustee to promptly authenticate and deliver to each Holder, an Exchange Note or Private Exchange Note, as the case may be, equal in aggregate principal amount to the aggregate principal amount of the Registrable Notes surrendered by such Holder.
To the extent not prohibited by any law or the Staff of the SEC, the Company shall use its reasonable best efforts to complete the Exchange Offer as provided above and shall comply with the applicable requirements of the Securities Act, the Exchange Act and other applicable laws and regulations in connection with the Exchange Offer. The Exchange Offer shall not be subject to any conditions, other than that (i) the Exchange Offer does not violate applicable law or any applicable interpretation of the Staff of the SEC and (ii) the due tendering of Registrable Notes in accordance with the Exchange Offer. Each Holder of Registrable Notes who wishes to exchange such Registrable Notes for Exchange Notes in the Exchange Offer will be required to make certain customary representations in connection therewith, including representations that such Holder is not an affiliate of the Company within the meaning of Rule 405 under the Securities Act, that any Exchange Notes to be received by it will be acquired in the ordinary course of business and that at the time of the commencement of the Exchange
Offer it has no arrangement with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes.
If upon consummation of the Exchange Offer, any Purchaser holds Registrable Notes acquired by it as part of their initial distribution, the Company, simultaneously with the delivery of the Exchange Notes pursuant to the Exchange Offer, shall issue and deliver to such Purchaser upon the request of such Purchaser, in exchange (the "Private Exchange") for the Registrable Notes held by such Purchaser, a like principal amount of debt securities of the Company issued under the Indenture and identical in all material respects to the Registrable Notes (the "Private Exchange Notes").
(b) In the event that (i) the Company determines that the Exchange Offer Registration provided for in Section 2(a) above is not available or may not be consummated as soon as practicable after the Offer Termination Date because it would violate applicable law or the applicable interpretations of the Staff of the SEC or (ii) in the opinion of counsel for the Purchasers a Registration Statement must be filed and a Prospectus must be delivered by the Purchasers in connection with any offering or sale of Registrable Notes (or Private Exchange Notes) because such Registrable Notes (or Private Exchange Notes) represent an unsold allotment for the original offering thereof, the Company shall use its reasonable best efforts to cause to be filed within 150 days of the Closing Date, a Shelf Registration Statement providing for the sale of such Registrable Notes (or Private Exchange Notes) and to have such Shelf Registration Statement declared effective within 180 days of the Closing Date by the SEC. In the event the Company is required to file a Shelf Registration Statement solely as a result of the matters referred to in clause (ii) of the preceding sentence, the Company shall file and have declared effective by the SEC both an Exchange Offer Registration Statement pursuant to Section 2(a) with respect to all Registrable Notes (or Private Exchange Notes) and a Shelf Registration Statement with respect to offers and sales of Registrable Notes (or Private Exchange Notes) held by the Purchasers after completion of the Exchange Offer (or Private Exchange) . The Company agrees to use its reasonable best efforts to keep the Shelf Registration Statement continuously effective until two years from the effective date thereof or such shorter period that will terminate when all of the Registrable Notes covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or cease to be outstanding. The Company further agrees to supplement or amend the Shelf Registration Statement if required by the rules, regulations or instructions applicable to the registration form used by the Company for such Shelf Registration Statement or by the Securities Act or by any other rules and regulations thereunder for shelf registration or if reasonably requested by a Holder with respect to information relating to such Holder, and to use its reasonable best efforts to cause any such amendment to become effective and such Shelf Registration Statement to become usable as soon as practicable thereafter. The
Company agrees to furnish to the Holders of Registrable Notes copies of any such supplement or amendment promptly after its being used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with the registration pursuant to Section 2(a) or Section 2(b). Each Holder shall pay all underwriting discounts, if any, and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder's Registrable Notes pursuant to a Shelf Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will not be deemed to have become effective unless it has been declared effective by the SEC; provided, however, that, if, after it has been declared effective, the offering of Registrable Notes (or Private Exchange Notes) pursuant to a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference until the offering of Registrable Notes (or Private Exchange Notes) pursuant to such Registration Statement may legally resume.
(e) The parties hereto agree that the Holders will suffer
damages, and that it would not be feasible to ascertain the extent of
such damages with precision if, the Company fails to comply with its
obligations under Section 2(a) and Section 2(b) hereof (any such
failure, a "Registration Default"). Therefore, the parties hereto
agree that (i) if the Exchange Offer Registration Statement is not
filed with the SEC within 150 days of the Closing Date (or, if
applicable, the Shelf Registration Statement is not filed within 150
days of the Closing Date), then commencing on the day after such
required filing date, additional interest ("Additional Interest")
shall accrue on the Registrable Notes at a rate of 0.25% per annum,
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC within 180 days after the Closing Date (or, if
applicable, the Shelf Registration Statement is not declared effective
by the SEC within 180 days after the Closing Date), then commencing on
the day after such required effective date, Additional Interest shall
accrue on the Registrable Notes at a rate of 0.25% per annum or (iii)
if the Company has not exchanged Exchange Notes for all Registrable
Notes validly tendered in accordance with the Exchange Offer within
210 days after the Closing Date (or such longer period as may be
necessary to complete such Exchange Offer), then commencing on the day
after such required exchange date, Additional Interest shall accrue on
the Registrable Notes at a rate of 0.25% per annum, provided that
Additional Interest shall not exceed 0.25% per annum in the aggregate
and Additional Interest pursuant to clause (i) shall cease to accrue
upon the filing of the Exchange Offer Registration Statement (or, if
applicable, the Shelf Registration Statement), Additional Interest
pursuant to
clause (ii) shall cease to accrue upon the declaration of
effectiveness of the Exchange Offer Registration Statement (or, if
applicable, the declaration and continued effectiveness of the Shelf
Registration Statement) and Additional Interest pursuant to clause
(iii) shall cease to accrue upon the exchange of Exchange Notes for
the Registrable Notes.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the Registration Statements pursuant to Section 2(a) and Section 2(b) hereof, the Company shall promptly:
(a) prepare and file with the SEC a Registration Statement on the appropriate form under the Securities Act, which form shall (x) be selected by the Company, (y) in the case of a Shelf Registration, be available for the sale of the Registrable Notes by the selling Holders thereof and (z) comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the SEC to be filed therewith, and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement effective for the applicable period and cause each Prospectus to be supplemented by any required prospectus supplement and, as so supplemented, to be filed pursuant to the instructions applicable to the form of such Registration Statement under the Securities Act; and keep each Prospectus current during the period described under Section 4(3) and Rule 174 under the Securities Act that is applicable to transactions by brokers or dealers with respect to the Registrable Notes or Exchange Notes;
(c) in the case of a Shelf Registration, furnish to each Holder of Registrable Notes and to counsel for the Holders and to each Underwriter of an Underwritten Offering of Registrable Notes, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus and any amendment or supplement thereto, including financial statements and schedules, and, if the Holder so requests in writing, all exhibits thereto (including those, if any, incorporated by reference) and such other documents as such Holder or Underwriter may reasonably request, in order to facilitate the public sale or other disposition of the Registrable Notes; and the Company consents to the use of such Prospectus and any amendment or supplement thereto in accordance with applicable law by each of the selling Holders of Registrable Notes and any such Underwriters in connection with the offering and sale of the Registrable Notes
covered by and in the manner described in such Prospectus or any amendment or supplement thereto in accordance with applicable law;
(d) use its best efforts (i) to register or qualify the Registrable Notes under all applicable state securities or blue sky laws of such jurisdictions as any Holder of Registrable Notes covered by a Registration Statement shall reasonably request in writing a reasonable time prior to the time the applicable Registration Statement is declared effective by the SEC and (ii) to cooperate with such Holders in connection with any filings required to be made with the National Association of Securities Dealers, Inc. and do any and all other acts and things which may be reasonably necessary or advisable to enable such Holder to consummate the disposition in each such jurisdiction of such Registrable Notes owned by such Holder; provided, however, that the Company shall not be required to (A) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where they would not otherwise be required to qualify but for this Section 3(d), (B) file any general consent to service of process or (C) subject themselves to taxation in any such jurisdiction if they are not so subject;
(e) in the case of a Shelf Registration, notify each Holder of Registrable Notes, counsel for the Holders and, if requested by such Persons, confirm such advice in writing, (i) when a Registration Statement has become effective and when any post-effective amendment thereto has been filed and becomes effective, (ii) of any request by the SEC or any state securities authority for amendments and supplements to a Registration Statement and Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) if, between the effective date of a Registration Statement and the closing of any sale of Registrable Notes covered thereby, the representations and warranties of the Company contained in any underwriting agreement, securities sales agreement or other similar agreement, if any, relating to the offering cease to be true and correct in all material respects or if the Company receives any notification with respect to the suspension of the qualification of the Registrable Notes for sale in any jurisdiction or the initiation of any proceeding for such purpose, (v) of the happening of any event during the period a Shelf Registration Statement is effective which makes any statement made in such Registration Statement or the related Prospectus untrue in any material respect or which requires the making of any changes in such Registration Statement or Prospectus in order to make the statements therein not misleading and (vi) of any determination by the Company that a post-effective amendment to a Registration Statement would be appropriate;
(f) use its best efforts to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement at the earliest possible moment and provide immediate notice to each Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each Holder of Registrable Notes, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto (without documents incorporated therein by reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Notes to facilitate the timely preparation and delivery of certificates representing Registrable Notes to be sold and not bearing any restrictive legends (unless required by applicable securities laws) and enable such Registrable Notes to be in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders may reasonably request at least two business days prior to the closing of any sale of Registrable Notes;
(i) in the case of a Shelf Registration, upon the occurrence of any event contemplated by Section 3(e)(v) hereof, use its best efforts to prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Notes, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company agrees to notify the Holders to suspend use of the Prospectus as promptly as practicable after the occurrence of such an event, and the Holders hereby agree to suspend use of the Prospectus until the Company has amended or supplemented the Prospectus to correct such misstatement or omission;
(j) a reasonable time prior to the filing of any Registration Statement, any Prospectus, any amendment to a Registration Statement or amendment or supplement to a Prospectus, or any document which is to be incorporated by reference into a Registration Statement or Prospectus after the initial filing of a Registration Statement, provide copies of such document to counsel for the Holders and make such of the representatives of the Company as shall be reasonably requested by counsel for the Holders available for discussion of such document, and shall not at any time file or make any amendment to the Registration Statement, any Prospectus or any amendment of or supplement to a Registration Statement or a Prospectus or any document which is to be incorporated by reference into a Registration Statement or a Prospectus, of which
counsel for the Holders shall not have, (i) with respect to an Exchange Offer Registration Statement, simultaneously upon filing with the SEC, been advised and furnished a copy or (ii) with respect to a Shelf Registration Statement, previously been advised and furnished a copy or to which counsel for the Holders shall reasonably object (provided, however that this section 3(j) shall not prevent the Company from complying with its ongoing reporting obligations under applicable securities laws);
(k) obtain a CUSIP number for all Exchange Notes, Registrable Notes or Private Exchange Notes, as the case may be, not later than the effective date of a Registration Statement, and provide the Trustee with certificates for the Exchange Notes, Registrable Notes or Private Exchange Notes, as the case may be, in form eligible for deposit with The Depository Trust Company;
(l) cause the Indenture to be qualified under the Trust Indenture Act of 1939, as amended (the "TIA")(unless an exemption under Rule 4d-9 under the TIA is available), to the extent not already so qualified, in connection with the registration of the Exchange Notes or Registrable Notes, as the case may be, and cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the TIA and execute, and use its best efforts to cause the Trustee to execute, all documents as may be required to effect such changes and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for inspection by a representative of the Holders of the Registrable Notes, any Underwriter participating in any disposition pursuant to such Shelf Registration Statement, and attorneys and accountants designated by the Holders, at reasonable times and in a reasonable manner, all relevant financial and other records, pertinent documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with a Shelf Registration Statement, in each case that would customarily be reviewed or examined in connection with "due diligence" review of the Company; provided, however, that each such party shall be required to maintain confidences and not to disclose to any other person any information or records reasonably designated by the Company as being confidential;
(n) if reasonably requested by any Holder of Registrable Notes covered by the Shelf Registration Statement, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such information with respect to such Holder as such Holder reasonably requests to be included therein and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment as soon as reasonably practicable after the Company has received notification of the matters to be incorporated in such filing;
(o) cause all Registrable Notes covered by a Registration
Statement to be rated with the appropriate rating agencies, (i) if the
Notes have been rated prior to the initial resale by the Purchasers or
(ii) if the Notes have not been previously rated, if so requested by
the Majority Holders; and
(p) in the case of an Underwritten Offering pursuant to a Shelf Registration, enter into such customary agreements and take all such other customary actions in connection therewith (including, those reasonably requested by counsel for the Holders) in order to expedite or facilitate the disposition of such Registrable Notes and in such connection, (i) to the extent possible, make such representations and warranties to the Holders and any Underwriters of such Registrable Notes with respect to the business of the Company and its subsidiaries, the Registration Statement, Prospectus and documents incorporated by reference or deemed incorporated by reference, if any, in each case, in form, substance and scope as are customarily made by Companies to underwriters in underwritten offerings and confirm the same if and when requested, (ii) obtain opinions of counsel to the Company (which counsel and opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and such Underwriters and their respective counsel) addressed to each selling Holder and Underwriter of Registrable Notes, covering the matters customarily covered in opinions requested in underwritten offerings, (iii) obtain comfort letters from the independent certified public accountants of the Company and Champion International Corporation ("Champion") (and, if necessary, any other certified public accountant of any subsidiary of the Company or any business acquired by the Company for which financial statements and financial data are or are required to be included in the Registration Statement) addressed to each selling Holder and Underwriter of Registrable Notes, such letters to be in customary form and covering matters of the type customarily covered in comfort letters in connection with primary underwritten offerings, subject to receipt of appropriate documentation as contemplated, and only if permitted, by the Statement of Auditing Standards No. 72 comfort, and (iv) deliver such documents and certificates as may be reasonably requested by counsel for the Holders to evidence the continued validity of the representations and warranties of the Company made pursuant to clause (i) above and to evidence compliance with any customary conditions in an underwriting agreement. In the case of any Underwritten Offering, the Company shall provide written notice to the Holders of all Registrable Notes of such Underwritten Offering at least 30 days prior to the filing of a prospectus supplement for such Underwritten Offering. Such notice shall (x) offer each such Holder the right to participate in such Underwritten Offering, (y)
specify a date, which shall be no earlier than 10 days following the date of such notice, by which such Holder must inform the Company of its intent to participate in such Underwritten Offering and (z) include the instructions such Holder must follow in order to participate in such Underwritten Offering.
In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Notes to promptly furnish, but not later than
15 days after written request, to the Company such information regarding the
Holder and the proposed distribution by such Holder of such Registration Notes
as the Company may from time to time reasonably request in writing.
Notwithstanding anything in this Agreement to the contrary, if a Holder does not
provide the information required above, then such Holder will not be included in
such Shelf Registration Statement.
In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(e)(v) hereof, such Holder will forthwith discontinue disposition of Registrable Notes pursuant to a Registration Statement until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(i) hereof, and, if so directed by the Company, such Holder will deliver to the Company (at its expense) all copies in its possession, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registration Notes current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of Registrable Notes pursuant to a Registration Statement, the Company shall extend the period during which the Registration Statement shall be maintained effective pursuant to this Agreement by the number of days during the period from and including the date of the giving of such notice to and including the date when the Holders shall have received copies of the supplemented or amended Prospectus necessary to resume such dispositions.
The Holders of Registrable Notes covered by a Shelf Registration Statement who desire to do so may sell such Registrable Notes in an Underwritten Offering. In any such Underwritten Offering, the investment banker or investment bankers and manager or managers (the "Underwriters") that will administer the offering will be selected by the Holders of a majority in principal amount of the Registrable Notes included in such offering; such selection must be approved by the Company which approval shall not be unreasonably withheld or delayed.
4. Participation of Broker-Dealers in Exchange Offer.
(a) The Company understands that the Staff of the SEC has taken the position that any broker-dealer that receives Exchange Notes for its own account
in the Exchange Offer in exchange for Notes that were acquired by such broker-dealer as a result of market-making or other trading activities (a "Participating Broker-Dealer"), may be deemed to be an "underwriter" within the meaning of the Securities Act in connection with any resale of such Exchange Notes.
The Company understands that it is the Staff's position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligation under the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as the Prospectus otherwise meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other provisions
of this Agreement, the Company agrees that the provisions of this
Agreement as they relate to a Shelf Registration shall also apply to
an Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the
Purchasers or by one or more Participating Broker-Dealers, in each
case as provided in clause (ii) below, in order to expedite or
facilitate the disposition of any Exchange Notes by Participating
Broker-Dealers consistent with the positions of the Staff recited in
Section 4(a) above; provided that:
(i) the Company shall not be required to amend or supplement the Prospectus contained in the Exchange Offer Registration Statement, as would otherwise be contemplated by Section 3(i), for a period exceeding two years after the Offer Termination Date (as such period may be extended pursuant to the penultimate paragraph of Section 3) and Participating Broker-Dealers shall not be authorized by the Company to deliver and shall not deliver such Prospectus after such period in connection with the resales contemplated by this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in Section 3 of this Agreement to an Exchange Offer Registration, to the extent not required by the positions of the Staff of the SEC or the Securities Act and the rules and regulations thereunder, will be in conformity with the reasonable request in writing to the Company by one or more broker-dealers who certify to the Company in writing that they anticipate that they will be Participating Broker-Dealers; and provided further that, in connection with such application of the Shelf Registration procedures set forth in Section 3 to an Exchange Offer Registration, the Company shall be obligated (x) to deal only with one entity representing
the Participating Broker-Dealers which shall be Credit Suisse First Boston Corporation ("CSFBC") if CSFBC so requests or otherwise the Participating Broker-Dealer holding the largest aggregate principal amount of Notes, (y) to pay the fees and expenses of only one counsel representing the Participating Broker-Dealers and (z) to cause to be delivered only one, if any, comfort letter with respect to the Prospectus in the form existing on the Offer Termination Date.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Notes, any Participating Broker-Dealer and each person, if any,
who controls such Holder or such Participating Broker-Dealer within
the meaning of the Securities Act or the Exchange Act (each Holder,
any Participating Broker-Dealer, and such controlling persons are
referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any
losses, claims, damages, liabilities or actions relating to purchases
and sales of the Notes) to which each Indemnified Party may become
subject under the Securities Act, the Exchange Act or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or
Prospectus or in any amendment or supplement thereto, or arise out of,
or are 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, as incurred,
the Indemnified Parties for any legal or other expenses reasonably
incurred by the Indemnified Parties for any legal or other expenses
reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not be liable
in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a
Registration Statement or Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf
Registration in reliance upon and in conformity with written
information pertaining to such Indemnified Party and furnished to the
Company by or on behalf of such Holder and furnished to the Company by
or on behalf of such Holder specifically for inclusion therein and
(ii) with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus
relating to a Shelf Registration Statement, the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting
any such losses, claims, damages or liabilities purchased the Notes
concerned, to the extent that a prospectus relating to such Notes was
required to be delivered by such Holder or Participating Broker-Dealer under the Securities Act in connection with such purchase or distribution and any such loss, claim, damage or liability of such Holder or Participating Broker-Dealer results from the fact that there was not sent or given to such person, at or prior to the written confirmation of the sale of such Notes to such person, a copy of the final prospectus if the Company had previously furnished copies thereof to such Holder or Participating Broker-Dealer; provided, further, however, that this indemnity agreement will be in addition to any liability which the Company may otherwise have to such Indemnified Party. The Company shall also indemnify underwriters, their partners, officers and directors and each person who controls such underwriters within the meaning of the Securities Act or the Exchange Act to the same extent as provided above with respect to the indemnification of the Holders of the Notes if requested by such Holders.
(b) Each Holder of the Notes severally and not jointly, will indemnify and hold harmless the Company and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act from and against any losses, claims, damages or liabilities or any actions in respect thereof, to which the Company or any such controlling person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities or actions arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus relating to a Shelf Registration, or arise out of or are based upon the omission or alleged omission to state therein a material fact necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or omission or alleged untrue statement or omission was made in reliance upon and in conformity with written information pertaining to such Holder and furnished to the Company by or on behalf of such Holder or Purchaser specifically for inclusion therein; and, subject to the limitation set forth immediately preceding this clause, shall reimburse, as incurred, the Company for any legal or other expenses reasonably incurred by the Company or any such controlling person in connection with investigating or defending any loss, claim, damage, liability or action in respect thereof. This indemnity agreement will be in addition to any liability which such Holder or Purchaser may otherwise have to the Company or any of its controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not, in any event, relieve the indemnifying party
from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof the indemnifying party will not be liable to such indemnified party under this Section 5 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action 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 any claims that are the subject matter of such action and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified parties.
(d) If the indemnification provided for in this Section 5 is unavailable or insufficient to hold harmless an indemnified party under subsections (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to in subsection (a) or (b) above (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party on the other from the exchange of the Notes, pursuant to the Registered Exchange offer, or (ii) if the allocation provided by the foregoing clause (i) 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 indemnifying party or parties on the one hand and indemnified party on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof) as well as any other relevant equitable considerations. The relative fault of the parties shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Holder or such other indemnified party, as the case may be, on the other, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence
of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any action or claim which is the subject of this subsection (d). Notwithstanding any other provision of this Section 5(d), the Holders of the Notes shall not be required to contribute any amount in excess of the amount by which the net proceeds received by such Holders from the sale of the Notes pursuant to a Registration Statement exceeds the amount of damages which such Holders have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. 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. For purposes of this paragraph (d), each person, if any, who controls such indemnified party within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as such indemnified party and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the exchange of the Notes pursuant to a Registration Statement and 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.
6. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not entered into, and on or after the date of this Agreement will not enter into, any agreement which is inconsistent with the rights granted to the Holders of Registrable Notes in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the rights granted to the holders of the Company's other issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Notes affected by such amendment, modification, supplement, waiver or consent; provided, however, that no amendment, modification, supplement, waiver or consent to any departure from the provisions of Section 5 hereof or which would have the effect of reducing the rate or extending the time of payment of interest on
any Registrable Note shall be effective as against any Holder of Registrable Notes unless consented to in writing by such Holder.
(c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, first-class mail, facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder, at the most current address given by such Holder to the Company;
(2) if to the Purchasers:
Credit Suisse First Boston Corporation Eleven Madison Avenue New York, NY 10010-3629 Fax No.: (212) 325-8278 Attention: Transactions Advisory Group
with a copy to:
Davis Polk & Wardwell 450 Lexington Avenue New York, NY 10017 Fax No.: (212) 450-4800 Attention: Francis J. Morison, and
(3) if to the Company, at its address as follows:
International Paper Company Two Manhattanville Road Purchase, New York 10577 Fax No.: (914) 397-1505 Attention: The Secretary.
All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; three business days after being deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged by recipient's facsimile machine operator, if sent by facsimile transmission; and on the day delivered, if sent by overnight air courier guaranteeing next day delivery.
Copies of all such notices, demands, or other communications shall be concurrently delivered by the person giving the same to the Trustee, at the addresses specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment or assumption, subsequent Holders; provided that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Notes in violation of the terms of the Purchase Agreement. If any transferees of any Holder shall acquire Registrable Notes, in any manner, whether by operation of law or otherwise, such Registrable Notes, shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Notes such person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement and such person shall be entitled to receive the benefits hereof. The Purchasers shall have no liability or obligation to the Company with respect to any failure by a Holder to comply with, or any breach by any Holder of, the obligations of such Holder under this Agreement.
(e) Purchases and Sales of Notes. The Company shall not, and shall use its best efforts to cause its affiliates (as defined in rule 405 under the 1993 Act) not to, purchase and then resell or otherwise transfer any Notes other than to the Company or its affiliates.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries to the agreements made hereunder between the Company, on the one hand, and the Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY LAWS OF THE STATE OF NEW YORK AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PROVISIONS THEREOF.
(j) Severability. In the event that one or more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
INTERNATIONAL PAPER COMPANY
By /s/ Tobin Treichel ------------------------------------ Name: Tobin Treichel Title: Vice President - Finance |
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
CHASE SECURITIES INC.
DEUTSCHE BANK SECURITIES, INC.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
SALOMON SMITH BARNEY INC.
BLAYLOCK & PARTNERS, L.P.
UTENDAHL CAPITAL PARTNERS, L.P.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of themselves
and as the representative
of the Purchasers
By: /s/ Joseph D. Fashano -------------------------------------------- Name: Joseph D. Fashano Title: Director |
SCHEDULE I
EXHIBIT 99.2
[LOGO]
PURCHASE, N.Y., June 19/PRNewswire/ --
International Paper (NYSE:IP) announced today it has completed
its exchange offer for Champion International (NYSE: CHA).
When the offer expired at midnight on Friday, June 16, approximately 92 million Champion shares had been tendered, including approximately 6.2 million tendered pursuant to notice of guaranteed delivery, representing over 94 percent of the total outstanding shares. International Paper is paying $50 in cash and .7073 shares of IP common stock for each Champion share tendered. The merger is expected to be completed tomorrow.
International Paper reached a definitive merger agreement with Champion on May 12 after UPM-Kymmene withdrew from the bidding. IP launched its exchange offer on May 19.
International Paper
(www.internationalpaper.com) is the world's largest paper and
forest products company. Businesses include printing papers,
packaging, building materials, chemical products and
distribution. As the largest private landowner in the U.S., the
company manages its forests under the principles of the
Sustainable Forestry Initiative (SFI(SM)) program, a system that
ensures the perpetual growing and harvesting of trees while
protecting wildlife, plants, soil, air and water quality.
Headquartered in the U.S. at Purchase, N.Y., International Paper
has operations in nearly 50 countries, employs more that 117,000
people and exports its products to more than 130 nations. SOURCE
International Paper.
CONTACT: Jack Cox, media, 914-397-1952, or Carol Tutundgy, investors, 914-397-1632, or Rochelle Weitzner, investors, 914-397-1623, all of International Paper/