<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 1, 1994
REGISTRATION NO. 33-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
INTERNATIONAL PAPER COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
NEW YORK 13-0872805
(STATE OR OTHER (I.R.S. EMPLOYER
JURISDICTION OF IDENTIFICATION
INCORPORATION OR NO.)
ORGANIZATION)
</TABLE>
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK 10577
(914) 397-1500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
------------------------------
JAMES W. GUEDRY, ESQ.
ASSOCIATE GENERAL COUNSEL AND SECRETARY
INTERNATIONAL PAPER COMPANY
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK 10577
(914) 397-1532
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement as determined in
light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO PRICE PER AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED (1) UNIT (2) OFFERING PRICE (2) FEE
<S> <C> <C> <C> <C>
Debt Securities (3)................... 100%
Preferred Stock, $1.00 par value
(3).................................. --
Common Stock, $1.00 par value
(3)(6)............................... $2,000,000,000(4) -- $2,000,000,000(4)(5) $689,656
Depositary Shares (7)................. --
Warrants (8).......................... --
<FN>
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies.
(2) Estimated for the sole purpose of computing the registration fee.
(3) Also includes such indeterminate amounts of Debt Securities and Preferred
Stock and indeterminate number of shares of Common Stock as may be issued
upon conversion of or exchange for any other Debt Securities or Preferred
Stock that provide for conversion or exchange into other Securities or upon
exercise of Warrants for such Securities.
(4) Such amount represents the principal amount of any Debt Securities issued
at their principal amount, the issue price rather than the principal amount
of any Debt Securities issued at an original issue discount, the
liquidation preference of any Preferred Stock, the amount computed pursuant
to Rule 457(c) for any Common Stock, the issue price of any Warrants and
the exercise price of any Securities issuable upon the exercise of
Warrants.
(5) No separate consideration will be received for the Debt Securities,
Preferred Stock, Common Stock or Depositary Shares issuable upon conversion
of or in exchange for Debt Securities or Preferred Stock.
(6) Includes Common Share Purchase Rights. Prior to the occurence of certain
events, the Rights will not be exercisable or evidenced separately from the
Common Stock.
(7) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a Deposit Agreement. In the event
the registrant elects to offer to the public fractional interests in shares
of the Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and the
shares of Preferred Stock will be issued to the Depositary under the
Deposit Agreement. No separate consideration will be received for the
Depositary Shares.
(8) Warrants may be sold separately or with Debt Securities, Preferred Stock or
Common Stock.
</TABLE>
Pursuant to Rule 429, the Prospectus included herein also relates to
$400,000,000 of securities registered as Debt Securities under registration
statement No. 33-48167. In the event any of such previously registered Debt
Securities are offered prior to the effective date of this registration
statement, the amount of such Debt Securities will not be included in any
Prospectus hereunder. The amount of Securities being registered, together with
the remaining Securities registered under registration statement No. 33-48167,
represents the maximum amount of Securities which are expected to be offered for
sale.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL 1, 1994
- --------------------------------------------------------------------------------
PROSPECTUS
---------------------------------------------------------------
INTERNATIONAL PAPER
Debt Securities, Preferred Stock,
Common Stock and Warrants
--------------
International Paper Company (the "Company") may offer from time to time,
together or separately, its (i) debt securities (the "Debt Securities"), which
may be either senior debt securities (the "Senior Debt Securities") or
subordinated debt securities (the "Subordinated Debt Securities"), consisting of
notes, debentures or other unsecured evidences of indebtedness in one or more
series, (ii) shares of its serial preferred stock, par value $1.00 per share
(the "Preferred Stock"), which, for any or all series of Preferred Stock, may be
issued in the form of depositary shares evidenced by depositary receipts (the
"Depositary Shares"); (iii) shares of its common stock, par value $1.00 per
share (the "Common Stock"), including Common Share Purchase Rights to purchase
Common Stock, and (iv) warrants to purchase securities of the Company as shall
be designated by the Company at the time of the offering (the "Warrants") in
amounts, at prices and on terms to be determined at the time of the offering.
The Debt Securities, Preferred Stock, Depositary Shares, Common Stock and
Warrants are collectively called the "Securities."
The Securities may be offered as separate series or issuances at an
aggregate initial offering price not to exceed $2,400,000,000 or, if applicable,
the equivalent thereof in one or more foreign currencies, currency units,
composite currencies or in amounts determined by reference to an index as shall
be designated by the Company, in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale and set forth in a
Prospectus Supplement or Prospectus Supplements.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The Subordinated
Debt Securities, when issued, will be subordinated in right of payment to all
Senior Indebtedness of the Company. Certain specific terms of the particular
Securities in respect of which this Prospectus is being delivered are set forth
in the Prospectus Supplement, including, where applicable, (i) in the case of
Debt Securities, the title, aggregate principal amount, denominations, maturity,
any interest rate (which may be fixed or variable) and time of payment of any
interest, any terms for redemption at the option of the Company or the holder,
any terms for sinking fund payments, any terms for conversion or exchange into
other Securities, currency or currencies of denomination and payment, if other
than U.S. dollars, any listing on a securities exchange and any other terms in
connection with the offering and sale of the Debt Securities in respect of which
this Prospectus is delivered, as well as the initial public offering price; (ii)
in the case of Preferred Stock, the specific title, the aggregate amount, any
dividend (including the method of calculating payment of dividends), seniority,
liquidation, redemption, voting and other rights, any terms for any conversion
or exchange into other Securities, any listing on a securities exchange, the
initial public offering price and any other terms; (iii) in the case of Common
Stock, the number of shares of Common Stock and the terms of offering thereof;
and (iv) in the case of Warrants, the designation and number, the exercise
price, any listing of the Warrants or the underlying Securities on a securities
exchange and any other terms in connection with the offering, sale and exercise
of the Warrants.
The Debt Securities may be issued in registered form or, subject to certain
limitations set forth herein, bearer form with coupons, or both. In addition,
all or a portion of the Debt Securities of a series may be issuable in temporary
or permanent global form and may be issued in the name of a depository
institution as book-entry securities. Subject to certain exceptions, Debt
Securities in bearer form may not be offered or sold to persons within the
United States or its possessions or to United States persons. See "Limitations
on Issuance of Bearer Securities."
The Company's Common Stock is listed on the New York Stock Exchange under
the trading symbol "IP." Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on such exchange, subject to official notice of
issuance.
--------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
--------------
The Securities may be sold directly, through agents, underwriters or dealers
as designated from time to time, or through a combination of such methods. See
"Plan of Distribution." If agents of the Company or any dealers or underwriters
are involved in the sale of the Securities in respect of which this Prospectus
is being delivered, the names of such agents, dealers or underwriters and any
applicable commissions or discounts will be set forth in or may be calculated
from the Prospectus Supplement with respect to such Securities. The net proceeds
to the Company from such sale also will be set forth in a Prospectus Supplement.
--------------
The date of this Prospectus is April , 1994
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, THE ACCOMPANYING
PROSPECTUS SUPPLEMENT OR THE DOCUMENTS INCORPORATED OR DEEMED INCORPORATED BY
REFERENCE HEREIN, AND ANY INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN OR
THEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY
ANY AGENT, DEALER OR UNDERWRITER. THIS PROSPECTUS OR PROSPECTUS SUPPLEMENT DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AT ANY TIME DOES
NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the United
States Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith file reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements, and other
information filed by the Company can be inspected and copied at the public
reference facilities of the Commission at Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following Regional Offices of
the Commission: Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511; and 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material may also be obtained from the Public
Reference Section of the Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. Certain securities of the Company
are listed on, and reports, proxy statements and other information concerning
the Company can be inspected at the offices of, the New York Stock Exchange,
Inc. ("New York Stock Exchange"), 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), with respect to the
Securities offered hereby (the "Registration Statement"). This Prospectus does
not contain all information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. Reference is made to the Registration Statement and to the exhibits
relating thereto for further information with respect to the Company and the
Securities offered hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission pursuant to
the Exchange Act (File No. 1-3157) are incorporated in this Prospectus by
reference: (a) Annual Report on Form 10-K for the year ended December 31, 1993;
(b) the description of the Company's capital stock which is contained in the
Company's registration statement on Form 8-A, dated July 20, 1976, as amended,
and the Company's registration statements on Form S-3, filed January 8, 1992
(No. 33-44855) and December 23, 1993 (No. 33-51447); and (c) the Company's
registration statement on Form 8-A, dated April 17, 1987, as amended December
14, 1989 (relating to the Common Share Purchase Rights) and the related Current
Report on Form 8-K, dated April 17, 1987.
All documents filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment which indicates
the termination of the offering of the Securities made by this Prospectus shall
be deemed to be incorporated by reference in this Prospectus and to be a part of
this Prospectus from the date of filing of such document.
Any statement contained in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, or contained in
this Prospectus, shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent that a statement contained herein or in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, on the written or oral request of such person, a
copy of any or all of the documents referred to above which have been or may be
incorporated by reference in this Prospectus (without exhibits to such documents
other than exhibits specifically incorporated by reference into such documents).
Such written or oral request should be directed to International Paper Company,
Two Manhattanville Road, Purchase, New York 10577, Attention: Investor Relations
Department ((914) 397-1632).
--------------
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars" or "U.S.$").
2
<PAGE>
THE COMPANY
The Company, a New York corporation incorporated in 1941 as the successor to
the New York corporation of the same name organized in 1898, is a worldwide
producer of printing and writing papers, paperboard and packaging, and wood
products and distributes paper and office supply products in both the United
States and Europe. It also produces pulp, laminated products, and specialty
products, including photosensitive films and papers, nonwovens, chemicals and
minerals.
In the United States, the Company operates 26 pulp and paper mills, 54
converting and packaging plants, 43 wood products facilities, 15 specialty
panels and laminated products plants, six nonwoven products facilities and seven
envelope manufacturing plants. Production facilities in Europe, Asia, Latin
America and Canada include 14 pulp and paper mills, 32 converting and packaging
plants, three wood products facilities, three specialty panels and laminated
products plants and five nonwoven products facilities.
The Company distributes fine paper, printing and industrial products and
building materials, primarily manufactured by other companies, through about 255
distribution branches located principally in the United States. In addition, the
Company produces photosensitive films and papers and photographic equipment
(three United States and six international locations) and specialty chemicals
(seven United States and two international locations), and engages in domestic
oil and gas and real estate activities.
In March 1994, the Company, through a subsidiary, acquired approximately
one-half of Brierley Investments Limited's ("Brierley") holdings in Carter Holt
Harvey Limited ("Carter Holt"), a major New Zealand forest products and paper
company with substantial assets in Chile. The purchase increased the Company's
ownership of Carter Holt to 24% and leaves Brierley with 8%.
In April 1993, the Company acquired certain assets of the Los Angeles-based
Ingram Paper Company, a distributor of industrial and fine printing papers. In
December, JB Papers Inc., a paper distribution company located in Union, New
Jersey, was purchased. Also in December, the assets of the Monsanto Company's
Kentucky-based Fome-Cor division, a manufacturer of polystyrene foam products,
were acquired.
In the first quarter of 1992, the operating assets of Western Paper Company
(Western Pacific), a printing and industrial paper distribution business based
in Portland, Oregon, were purchased. In the second quarter, the Company acquired
an equity interest in Scitex Corporation Ltd., an Israel-based world leader in
color electronic prepress systems for the graphic design, printing and
publishing industries. In the third quarter, Zaklady Celulozowa-Papierniecze
S.A. w Kwidzynie ("Kwidzyn") was acquired from the Government of the Republic of
Poland. Kwidzyn is Poland's largest white paper manufacturer and the only
integrated bleached pulp and paper company in Poland. In the fourth quarter,
certain assets of the chemical division of Norway-based M. Peterson & Son AS
were acquired.
In the first quarter of 1991, the Company purchased certain packaging and
sheeting facilities located in France (the Rhone Valley packaging business) from
the Georgia-Pacific Corporation. In April 1991, the packaging equipment division
of United Dominion Industries, Ltd. (Evergreen Packaging Equipment) was
purchased. Also in April, the Company acquired the common stock of Dillard Paper
Company, a wholesale distributor of printing and industrial papers, packaging
equipment and supplies based in the southern United States. In August 1991, the
Company completed a merger with Leslie Paper Co., a paper distribution firm
headquartered in Minneapolis, Minnesota, using the pooling-of-interests method
of accounting. In November 1991, the Company entered into a joint venture
agreement with Brierley to control 32% of Carter Holt. In December 1991, the
common stock of Scaldia Papier BV, a paper distribution company based in
Nijmegen, Netherlands, was purchased.
All of the 1993, 1992 and 1991 acquisitions, except the merger with Leslie
Paper Co., were accounted for using the purchase method. The effects of these
mergers and acquisitions, individually or in the aggregate, were not significant
to the Company's financial statements.
3
<PAGE>
From 1989 through 1993, the Company's capital expenditures approximated $5.7
billion, excluding mergers and acquisitions. These expenditures reflect
continuing efforts to improve product quality, environmental performance, lower
costs, expand production capacity, and acquire and improve forestlands. Capital
spending in 1993 was $954 million and is expected to exceed $1.1 billion in
1994.
The Company, which owns a majority interest in IP Timberlands, Ltd., a Texas
limited partnership ("IPT"), controlled approximately 6.2 million acres of
forestlands in the United States at December 31, 1993. IPT was formed to succeed
to substantially all of the Company's forest products business for the period
1985 through 2035, unless earlier terminated.
SUPPLEMENTAL INFORMATION
In November 1992, the Company recorded pretax charges of $370 million to
establish a productivity improvement reserve and $28 million for environmental
remediation and clean-up. Of the total productivity improvement charge, $126
million was related to plant shutdowns, $138 million was for plant
consolidations and other asset write-offs, $64 million was for employee
relocation and severance and $42 million was for legal, warranty and
miscellaneous items.
Approximately $250 million of the productivity improvement charge was for
non-cash items, primarily the write-down of fixed assets. The remaining $120
million consisted of cash expenditures. Approximately 40% has been expended in
1993 and, except for legal costs, the Company expects the remainder to be spent
about equally in 1994 and 1995.
The Company originally projected that annual savings would approach $75
million by the end of 1994. The Company realized 45% of that level in 1993, and
expects to reach 85% by the end of 1994 and to exceed $75 million when actions
are completed in 1995. The savings result primarily from lower personnel costs
and depreciation, as well as the elimination of operating losses.
No overall adjustment to the reserve balances are anticipated as of the date
of this Prospectus.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS
(UNAUDITED)
The following table sets forth the Company's ratio of earnings to fixed
charges and ratio of earnings to combined fixed charges and preferred stock
dividends for the periods indicated.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
---------------------------------
1989 1990 1991 1992 1993
----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges........................... 6.34 3.53 2.44 1.42 2.26
Ratio of Earnings to Combined Fixed
Charges and Preferred Stock
Dividends......................... 5.67 3.53 2.44 1.42 2.26
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
include pre-tax earnings before an extraordinary charge and the cumulative
effect of an accounting change, interest expense and the estimated interest
factor in rent expense (which, in the opinion of the Company, approximates
one-third of rent expense), and adjustments for undistributed equity earnings
and the amortization of capitalized interest. Fixed charges include interest
incurred (including amounts capitalized) and the estimated interest factor in
rent expense. Dividends on the Company's $4 Preferred Stock ($4 per share per
annum) are insignificant and, as a result, for the years ended December 31, 1990
through 1993, the ratios of earnings to combined fixed charges and preferred
stock dividends were the same as the ratios of earnings to fixed charges.
USE OF PROCEEDS
Except as otherwise described in an accompanying Prospectus Supplement, the
net proceeds to be received from the sale of the Securities offered hereby will
be used for general corporate purposes. The
4
<PAGE>
Company may also apply proceeds to expenditures for plant and equipment, and
possibly for acquisitions of the stock or assets of other companies, for the
repurchase of shares of the Company's Common Stock or to retire other short-term
or long-term indebtedness. The Company expects that it will continue to incur
indebtedness from time to time.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may not apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Senior Debt Securities will be issued under an Indenture (the "Senior
Indenture"), to be entered into between the Company and The Chase Manhattan
Bank, N.A., as trustee. The Subordinated Debt Securities will be issued under a
separate Indenture (the "Subordinated Indenture"), to be entered into between
the Company and The Chase Manhattan Bank, N.A., as trustee. The Senior Indenture
and the Subordinated Indenture are sometimes referred to collectively as the
"Indentures." Copies of the Senior Indenture and the Subordinated Indenture have
been filed as exhibits to the Registration Statement. The Chase Manhattan Bank,
N.A., as trustee under the Senior Indenture and under the Subordinated
Indenture, is referred to herein as the "Trustee."
The following summaries of certain provisions of the Senior Debt Securities,
the Subordinated Debt Securities and the Indentures do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
all the provisions of the Indenture applicable to a particular series of Debt
Securities, including the definitions therein of certain terms. Wherever
particular Sections, Articles or defined terms of the Indentures are referred to
herein or in a Prospectus Supplement, it is intended that such Sections,
Articles or defined terms shall be incorporated by reference herein or therein,
as the case may be. Section and Article references used herein are references to
the applicable Indenture. Except as otherwise indicated, the terms of the Senior
Indenture and the Subordinated Indenture are identical. Capitalized terms not
otherwise defined herein shall have the meanings given to them in the applicable
Indenture.
GENERAL
The Indentures will not limit the aggregate principal amount of Debt
Securities which may be issued thereunder, and each Indenture provides that Debt
Securities may be issued thereunder from time to time in one or more series up
to the aggregate amount from time to time authorized by the Company for each
series. Unless otherwise specified in the Prospectus Supplement, the Senior Debt
Securities when issued will be unsecured and unsubordinated obligations of the
Company and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Subordinated Debt Securities
when issued will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness (as defined in the Subordinated Indenture) of
the Company as described in the Prospectus Supplement applicable to the offering
of Subordinated Debt Securities.
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for a description of the following
terms or additional provisions of the Debt Securities: (1) the title of the Debt
Securities; (2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (3) any limit on the aggregate principal amount of
the Debt Securities; (4) whether the Debt Securities are to be issuable as
Registered Securities or Bearer Securities or both, whether any of the Debt
Securities shall be issuable in whole or in part in temporary or permanent
global form or in the form of Book-Entry Securities and, if so, the
circumstances under which any such global security or global securities or
Book-Entry Securities may be exchanged for Debt Securities registered in the
name of, and any transfer of such global or Book-Entry Securities may be
registered to, a Person other than the depository for such temporary or
permanent global securities or Book-Entry Securities or its nominee; (5) the
price or prices (expressed as a
5
<PAGE>
percentage of the aggregate principal amount thereof) at which the Debt
Securities will be issued; (6) the date or dates on which the Debt Securities
will mature; (7) the rate or rates per annum at which the Debt Securities will
bear interest, if any, and the date from which any such interest will accrue;
(8) the Interest Payment Dates on which any such interest on the Debt Securities
will be payable, the Regular Record Date for any interest payable on any Debt
Securities which are Registered Securities on any Interest Payment Date 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 described under "Temporary Global Securities" below; (9) any mandatory or
optional sinking fund or analogous provisions; (10) each office or agency where,
subject to the terms of the applicable Indenture as described below under
"Payment and Paying Agents," the principal of and any premium and interest on
the Debt Securities will be payable and each office or agency where, subject to
the terms of the applicable Indenture as described below under "Form, Exchange,
Registration and Transfer," the Debt Securities may be presented for
registration of transfer or exchange; (11) the date, if any, after which and the
price or prices at which the Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, in whole or in part, and the other
detailed terms and provisions of any such optional or mandatory redemption
provisions, which may include with respect to a particular series or particular
Debt Securities within a series, a redemption option of Holders upon certain
conditions, as defined in the applicable Indenture; (12) the denominations in
which any Debt Securities which are Registered Securities will be issuable, if
other than denominations of $1,000 and any integral multiple thereof, and the
denomination or denominations in which any Debt Securities which are Bearer
Securities will be issuable, if other than the denomination of $5,000; (13) the
currency or currency units of payment of principal of and any premium and
interest on the Debt Securities; (14) any index used to determine the amount of
payments of principal of and any premium and interest on the Debt Securities and
the manner in which such amounts shall be determined; (15) the terms and
conditions, if any, pursuant to which such Debt Securities are convertible or
exchangeable into a security or securities of the Company; and (16) any other
terms of the Debt Securities not inconsistent with the provisions of the
applicable Indenture. (Section 3.1) Any such Prospectus Supplement will also
describe any special provisions for the payment of additional amounts with
respect to the Debt Securities.
Debt Securities may also be issued under the Indenture upon the exercise of
Warrants. See "Description of Warrants."
Debt Securities may be issued as Original Issue Discount Securities. An
Original Issue Discount Security is a Debt Security, including any Zero-Coupon
Security, which is issued at a price lower than the amount payable upon the
Stated Maturity thereof and which provides that upon redemption or acceleration
of the maturity, an amount less than the amount payable upon the Stated
Maturity, determined in accordance with the terms of such Debt Security, shall
become due and payable. Certain special United States federal income tax
considerations applicable to Debt Securities sold at an original issue discount
will be described in the Prospectus Supplement relating thereto. In addition,
certain special United States federal income tax or other considerations
applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars may be described in the
applicable Prospectus Supplement relating thereto.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement, Bearer Securities will have interest coupons attached.
(Section 2.1) The Indentures also will provide that Debt Securities of a series
may be issuable in temporary or permanent global form and may be issued as
Book-Entry Securities that will be deposited with, or on behalf of, The
Depository Trust Company (the "Depository") or another depository named by the
Company and identified in a Prospectus Supplement with respect to such series.
(Sections 2.1 and 2.4) See "Global and Book-Entry Debt Securities."
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In connection with its original issuance, no Bearer Security (including a
Debt Security exchangeable for a Bearer Security or a Debt Security in global
form that is either a Bearer Security or exchangeable for Bearer Securities)
shall be mailed or otherwise delivered to any location in the United States (as
defined under "Limitations on Issuance of Bearer Securities") and a Bearer
Security may be delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security furnishes written certification
of the beneficial ownership of the Bearer Security as required by Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(3). In the case of a Bearer Security in
permanent global form, such certification must be given in connection with
notation of a beneficial owner's interest therein in connection with the
original issuance of such Debt Security. (Section 3.3) See "Global and
Book-Entry Securities" and "Limitations on Issuance of Bearer Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of such series will be exchangeable into Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor. Bearer Securities surrendered in exchange for Registered Securities
between a Regular Record Date or a Special Record Date and the relevant date for
payment of interest shall be surrendered without the coupon relating to such
date for payment of interest and interest accrued as of such date will not be
payable 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 terms of the applicable Indenture. Bearer Securities will
not be issued in exchange for Registered Securities. (Section 3.5) Each Bearer
Security, and any coupon attached thereto, other than a temporary global Bearer
Security will bear the following legend: "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 United States Internal Revenue Code." A Book-Entry Security may not be
registered for transfer or exchange (other than as a whole by the Depository to
a nominee or by such nominee to such Depository) unless the Depository or such
nominee notifies the Company that it is unwilling or unable to continue as
Depository or the Depository ceases to be qualified as required by the
applicable Indenture or the Company instructs the Trustee in accordance with the
applicable Indenture that such Book-Entry Securities shall be so registerable
and exchangeable or there shall have occurred and be continuing an Event of
Default with respect to the Debt Securities evidenced by such Book-Entry
Securities or there shall exist such other circumstances, if any, as may be
specified in the applicable Prospectus Supplement. (Section 3.5)
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose with respect to any series of Debt Securities and referred to in an
applicable Prospectus Supplement, without service charge and upon payment of any
taxes and other governmental charges as described in the applicable Indenture.
Such transfer or exchange will be effected upon the Security Registrar or such
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. The Company has appointed the
Trustee as Security Registrar. (Section 3.5) If a Prospectus Supplement refers
to any transfer agents (in addition to the Security Registrar) initially
designated by the Company with respect to any series of Debt Securities, the
Company may at any time rescind the designation of any such transfer agent or
approve a change in the location through which any such transfer agent acts,
except that, if Debt Securities of a series are issuable solely as Registered
Securities, the Company will be required to maintain a transfer agent in each
Place of Payment for such series and, if Debt Securities of a series are
issuable as Bearer Securities, the Company will be required to maintain (in
addition to the Security Registrar) a transfer
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agent in a Place of Payment for such series located outside the United States.
The Company may at any time designate additional transfer agents with respect to
any series of Debt Securities. (Section 10.2)
In the event of any redemption in part, the Company shall not be required to
(i) issue, register the transfer of or exchange Debt Securities of any series
during a period beginning at the opening of business 15 days before any
selection of Debt Securities of that series to be redeemed and ending at the
close of business on (A) if Debt Securities of the series are issuable only as
Registered Securities, the day of mailing of the relevant notice of redemption
and (B) if Debt Securities of the series are issuable as Bearer Securities, the
day of the first publication of the relevant notice of redemption or, if Debt
Securities of the series are also issuable as Registered Securities and there is
no publication, the mailing of the relevant notice of redemption; (ii) register
the transfer of or exchange any Registered Security, or portion thereof, called
for redemption, except the unredeemed portion of any Registered Security being
redeemed in part; or (iii) exchange any Bearer Security called for redemption,
except to exchange such Bearer Security for a Registered Security of that series
and like tenor which is immediately surrendered for redemption. (Section 3.5)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest on Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
Paying Agents outside the United States as the Company may designate from time
to time, at the option of the Holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United States. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of interest
on Bearer Securities on any Interest Payment Date will be made only against
surrender to the Paying Agent of such coupon relating to such Interest Payment
Date. (Section 10.1) No payment with respect to any Bearer Security will 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. Notwithstanding the foregoing, payments of
principal of, and premium, if any, and interest on Bearer Securities denominated
and payable in U.S. dollars will be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount thereof in U.S. dollars at all offices or agencies
outside the Untied States is illegal or effectively precluded by exchange
controls or other similar restrictions. (Section 10.2)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment of
any interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any instalment of
interest on Registered Securities will be made to the Person in whose name such
Registered Security is registered at the close of business on the Regular Record
Date for such interest. (Section 3.7)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in The City of New York will be designated
as a Paying Agent for the Company for payments with respect to Debt Securities
which are issuable solely as Registered Securities and the Company will maintain
a Paying Agent outside of the United States for payments with respect to Debt
Securities (subject to the limitations described above in the case of Bearer
Securities) which are issuable solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Any Paying Agents outside the United States
and any other Paying Agent in the United States initially designated by the
Company for the Debt Securities will be named in an applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities of a series
are issuable solely as Registered Securities, the Company will be required to
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maintain a Paying Agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain (i) a Paying Agent in the Borough of Manhattan, The City of
New York for payments with respect to any Registered Securities of the series
(and for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Debt Securities of such
series and any coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or 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 in London or Luxembourg or any other required city located outside
the United States, as the case may be, for the Debt Securities of such series.
(Section 10.2)
Payments of principal of, premium, if any, and interest on Book-Entry
Securities registered in the name of any Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner of
the global security representing such Book-Entry Securities. The Company expects
that the Depository, upon receipt of any payment of principal, premium or
interest, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests as shown on the
records of such Depository or its nominee. Neither the Company, the Trustee, any
Paying Agent nor the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspects of the records relating to, or
payments made on account of, such beneficial ownership interests in the
Book-Entry Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
All moneys paid by the Company to a Paying Agent for the payment of
principal of, premium, if any, or interest on any Debt Securities which remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will be repaid to the Company and the Holder
of such Debt Security or any coupon will thereafter look only to the Company for
payment thereof. (Section 10.3)
GLOBAL AND BOOK-ENTRY DEBT SECURITIES
If so specified in an applicable Prospectus Supplement, the portion of the
Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary or permanent global Debt
Securities, without interest coupons, to be deposited with a common depositary
in London for the Euro-clear System ("Euro-clear") and CEDEL S.A. ("CEDEL") for
credit to the designated accounts. Unless otherwise indicated by an applicable
Prospectus Supplement, on or after 40 days following its issuance, each such
temporary global Debt Security will be exchangeable for definitive Bearer
Securities, definitive Registered Securities or all or a portion of a permanent
global Debt Security, or any combination thereof, as specified in an applicable
Prospectus Supplement, only upon written certification in the form and to the
effect described under "Form, Exchange, Registration and Transfer." No Bearer
Security (including a Debt Security in permanent global form) delivered in
exchange for a portion of a temporary or permanent global Debt Security shall be
mailed or otherwise delivered to any location in the United States in connection
with such exchange. (Sections 3.4 and 3.5)
A Person having a beneficial interest in a permanent global Debt Security
will, except with respect to payment of principal of, premium, if any, and
interest on such permanent global Debt Security, be treated as a Holder of such
principal amount of Outstanding Debt Securities represented by such permanent
global Debt Security as shall be specified in a written statement of the Holder
of such permanent global Debt Security or, in the case of a permanent global
Debt Security in bearer form, of the operator of Euro-clear or CEDEL which is
provided to the Trustee by such Person. (Section 2.3)
If Debt Securities to be sold in the United States are designated by the
Company in a Prospectus Supplement as Book-Entry Securities, a global security
representing the Book-Entry Securities will be
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deposited in the name of Cede & Co., as nominee for the Depository representing
the Debt Securities to be sold in the United States. Upon such deposit of the
Book-Entry Securities, the Depository shall credit an account maintained or
designated by an institution to be named by the Company or any purchaser of the
Debt Securities represented by the Book-Entry Securities with an aggregate
amount of Debt Securities equal to the total number of Debt Securities that have
been so purchased. The specific terms of any depository arrangement with respect
to any portion of a series of Debt Securities to be represented by one or more
global securities will be described in the applicable Prospectus Supplement.
Beneficial interests in such Debt Securities will only be evidenced by, and
transfers thereof will only be effected through, records maintained by the
Depository and the institutions that are Depository participants.
CERTAIN COVENANTS OF THE COMPANY
The Company will covenant that it will not, nor will it permit any
Subsidiary (as hereinafter defined), to issue, assume or guarantee any debt for
money borrowed ("Debt") if such Debt is secured by a mortgage, pledge, security
interest or lien (a "mortgage" or "mortgages") upon any Forestlands or Principal
Manufacturing Facility (as hereinafter defined), now owned or hereafter
acquired, without in any such case effectively providing that the Senior Debt
Securities shall be secured equally and ratably with (or prior to) such Debt,
except that the foregoing restrictions shall not apply to (a) mortgages on any
property acquired, constructed or improved by the Company or any Subsidiary
after April 1, 1994 which are created within 180 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 the purchase price or cost thereof, or
existing mortgages on property acquired, provided such mortgages shall not apply
to any property theretofore owned by the Company or any Subsidiary other than
theretofore unimproved real property, (b) 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, (c)
mortgages in favor of the Company or any Subsidiary, or (d) 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 (a), (b)
or (c); and except that the following types of transactions, among others, shall
not be deemed to create Debt secured by a mortgage: (x) 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 (y) mortgages in favor of governmental bodies of the United
States to secure advance, progress or other payments pursuant to any contract or
statute or to secure indebtedness incurred to finance the purchase price or cost
of constructing or improving the property subject to such mortgages. (Section
10.7 of Senior Indenture)
Notwithstanding the foregoing, the Company and any Subsidiary may, without
securing the Senior Debt Securities, 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 the Attributable Debt (as
hereinafter defined) in respect of Sale and Lease-Back Transactions (as
hereinafter defined) of the Company and its Subsidiaries existing at such time
(other than Sale or Lease-Back Transactions the proceeds of which have been
applied to the retirement of Funded Debt (as hereinafter defined)), does not at
the time exceed 10% of the net tangible assets of the Company and its
consolidated Subsidiaries as of the latest fiscal year. (Section 10.7 of Senior
Indenture) "Net tangible assets" is defined as the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (a) all current liabilities and (b) all goodwill, tradenames,
trademarks, patents, unamortized debt discount and expense (to the extent
included in said 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.
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 Forestlands or any Principal
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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
Principal Manufacturing Facility, has been placed in commercial operation more
than 180 days by the Company or such Subsidiary and has been or is said to be
sold or transferred by the Company or such Subsidiary to such person (herein
referred to as a "Sale and Lease-Back Transaction"), 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 Transaction without equally and ratably
securing the Senior Debt Securities or (b) the Company shall, and in any such
case the Company will covenant that it will, apply an amount equal to the fair
value (as determined by its Board of Directors) of the property so leased to the
retirement, within 180 days of the effective date of any such Sale and
Lease-Back Transaction, of Debt Securities or of Funded Debt of the Company
which ranks on a parity with the Senior Debt Securities. (Section 10.8 of Senior
Indenture)
The term "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 of this
Prospectus transferred to, a Subsidiary primarily for development and/or sale,
and not primarily for the production of any lumber or other timber products.
(Section 1.1 of Senior Indenture)
The term "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 (i) 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 103(a) of the Internal Revenue Code (or any successor to such
provision) as in effect at the time of issuance of such obligations, or (ii)
which, in the opinion of the Board of Directors of the Company, is not of
material importance to the total business conducted by the Company and its
Subsidiaries as an entirety. (Section 1.1 of Senior Indenture)
The term "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
(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 the Company, or by any one or more Subsidiaries, or by the Company
and one or more Subsidiaries. (Section 1.1 of Senior Indenture)
The term "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 Senior Debt Securities then
Outstanding, such average being weighted by the principal amount of the Senior
Debt 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" in the Senior Indenture) 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
leaseback transaction. (Section 1.1 of Senior Indenture)
The term "Funded Debt" shall mean Debt 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 Debt. (Section 1.1 of Senior
Indenture)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness. Upon any
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payment or distribution of assets to creditors upon any liquidation,
dissolution, winding up, reorganization, assignment for the benefit of
creditors, marshalling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceedings in connection with any insolvency or
bankruptcy proceeding of the Company, the Holders of Senior Indebtedness will
first be entitled to receive payment in full of principal of, and premium, if
any, and interest, if any, on such Senior Indebtedness before the Holders of the
Subordinated Debt Securities will be entitled to receive or retain any payment
in respect of the principal of, and premium, if any, or interest, if any, on the
Subordinated Debt Securities. (Section 16.2 of Subordinated Indenture)
By reason of such subordination, in the event of liquidation or insolvency,
creditors of the Company may recover less, ratably, than Holders of Senior
Indebtedness and may recover more, ratably, than the Holders of the Subordinated
Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the Holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the Holders of the Subordinated Debt Securities will
be entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Subordinated Debt Securities. (Section 16.3 of
Subordinated Indenture)
No payments on account of principal, or premium, if any, or interest, if
any, in respect of the Subordinated Debt Securities may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default. (Section 16.4 of
Subordinated Indenture) For purposes of the subordination provisions, the
payment, issuance and delivery of cash, property or securities (other than stock
and certain subordinated securities of the Company) upon conversion of a
Subordinated Debt Security will be deemed to constitute payment on account of
the principal of such Subordinated Debt Security.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to
the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities constitute Senior Indebtedness under the
Subordinated Indenture.
"Senior Indebtedness" is defined to include all amounts due on and
obligations in connection with any of the following, whether outstanding at the
date of execution of the Subordinated Indenture or thereafter incurred or
created: (a) indebtedness, obligations and other liabilities (contingent or
otherwise) of the Company for money borrowed, or evidenced by bonds, debentures,
notes or similar instruments; (b) reimbursement obligations and other
liabilities (contingent or otherwise) of the Company with respect to letters of
credit, bankers' acceptances issued for the account of the Company or with
respect to interest rate protection agreements or currency exchange or purchase
agreements; (c) obligations and liabilities (contingent or otherwise) in respect
of leases by the Company as lessee which, in conformity with generally accepted
accounting principles, are accounted for as capitalized lease obligations on the
balance sheet of the Company; (d) all direct or indirect guarantees or similar
agreements in respect of, and obligations or liabilities (contingent or
otherwise) to purchase or otherwise acquire or otherwise to assure a creditor
against loss of the Company in respect of, indebtedness, obligations or
liabilities of another Person described in clauses (a) through (c); (e) any
indebtedness described in clauses (a) through (d) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
the Company, regardless of whether the indebtedness secured thereby shall have
been assumed by the Company; and (f) any and all deferrals, renewals, extensions
and refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kind described in clauses (a)
through (e); unless in any case in the instrument creating or evidencing such
indebtedness, obligation, liability, guaranty, assumption, deferral, renewal,
extension or refunding, it is provided that such indebtedness, obligation,
liability,
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guaranty, assumption, deferral, renewal, extension or refunding involved is not
senior in right of payment to the Subordinated Debt Securities or that such
indebtedness is PARI PASSU with or junior to the Subordinated Debt Securities.
(Section 1.1 of Subordinated Indenture)
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
CONVERSION RIGHTS
The terms on which Debt Securities of any series are convertible into or
exchangeable for Common Stock or other securities of the Company will be set
forth in the Prospectus Supplement relating thereto. Such terms will include
provisions as to whether conversion or exchange is mandatory, at the option of
the Holder or at the option of the Company, and may include provisions pursuant
to which the number of shares of Common Stock or other securities of the Company
to be received by the Holders of Debt Securities would be subject to adjustment.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default under
the applicable Indenture with respect to Debt Securities of any series: (a)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days (in the case of the Subordinated Indenture, whether or not
such payment is prohibited by the subordination provisions); (b) failure to pay
principal of or premium, if any, on any Debt Security of that series when due
(in the case of the Subordinated Indenture, whether or not such payment is
prohibited by the subordination provisions); (c) failure to deposit any sinking
fund payment, when due, in respect of any Debt Security of that series (in the
case of the Subordinated Indenture, whether or not such deposit is prohibited by
the subordination provisions); (d) failure to perform any other covenant of the
Company in the applicable Indenture or such Debt Security (other than a covenant
included in the applicable Indenture solely for the benefit of a series of Debt
Securities other than that series), continued for 60 days after written notice
has been given as provided in the applicable Indenture; (e) certain events in
bankruptcy, insolvency or reorganization involving the Company; and (f) any
other Event of Default provided with respect to the Debt Securities of that
series. (Section 5.1)
If an Event of Default with respect to the Debt Securities of any series at
the time Outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25% in aggregate principal amount of the Outstanding Debt Securities
of that series by notice as provided in the applicable Indenture may declare the
principal amount of the Debt Securities of that series (or, in the case of any
Debt Security that is an Original Issue Discount Security or the principal
amount of which is not then determinable, such portion of the principal amount
of such Debt Security, or such other amount in lieu of such principal amount, as
may be specified in the terms of such Debt Security) to be due and payable
immediately. At any time after a declaration of acceleration with respect to
Debt Securities of any series has been made, but before a judgment or decree for
payment of money has been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such acceleration. (Section
5.2)
The Indentures will provide that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the applicable
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable indemnity. (Sections 6.1, 6.3)
Subject to such provisions for the indemnification of the Trustee, the Holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of any series will 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 Debt Securities
of that series. (Section 5.12)
The Company will be required to furnish to the applicable Trustee annually a
statement as to the performance of certain of its obligations under the
applicable Indenture and as to any default in such performance. (Section 10.9)
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DEFEASANCE
If so specified with respect to any particular series of Debt Securities,
the Company may discharge its indebtedness and its obligations or certain of its
obligations under the applicable Indenture with respect to such series by
depositing funds or obligations issued or guaranteed by the United States of
America with the applicable Trustee.
DEFEASANCE AND DISCHARGE
The Indentures will provide that, if so specified with respect to the Debt
Securities of any series, the Company will be discharged from any and all
obligations in respect of the Debt Securities of such series (including, in the
case of Subordinated Debt Securities, the subordination provisions described
under "Subordination of Subordinated Debt Securities" herein and except for
certain obligations relating to temporary Debt Securities and exchange of Debt
Securities, registration of transfer or exchange of Debt Securities of such
series, replacement of stolen, lost or mutilated Debt Securities of such series,
maintenance of paying agencies, to hold monies for payment in trust and payment
of additional amounts, if any, required in consequence of United States
withholding taxes imposed on payments to non-United States persons) upon the
deposit with the applicable Trustee, in trust, of money and/or U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide money in an amount
sufficient to pay the principal of (and premium, if any), each instalment of
interest on, and any sinking fund payments on, the Debt Securities of such
series on the Stated Maturity of such payments in accordance with the terms of
the applicable Indenture and the Debt Securities of such series. Such a trust
may only be established if, among other things, (a) the Company has delivered to
the applicable Trustee an Opinion of Counsel to the effect that (i) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (ii) since the date of the applicable 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
Debt 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 amounts 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; (b) the Debt Securities of
such series, if then listed on any domestic or foreign securities exchange, will
not be delisted as a result of such deposit, defeasance and discharge; and (c)
in the case of the Subordinated Debt Securities, (x) no default in the payment
of principal of, or premium, if any, or any interest on any Senior Indebtedness
beyond any applicable grace period shall have occurred and be continuing, or (y)
no other default with respect to any Senior Indebtedness shall have occurred and
be continuing and shall have resulted in the acceleration of such Senior
Indebtedness. (Section 4.3) In the event of any such defeasance and discharge of
Debt Securities of such series, Holders of Debt Securities of such series would
be able to look only to such trust fund for payment of principal of and any
premium and any interest on their Debt Securities until Maturity.
DEFEASANCE OF CERTAIN OBLIGATIONS
The Senior Indenture will provide that, if so specified with respect to the
Senior Debt Securities of any series, the Company may omit to comply with the
restrictive covenants described under "Certain Covenants of the Company" above
and any other covenants applicable to such Senior Debt Securities which are
subject to covenant defeasance and any such omission shall not be an Event of
Default with respect to the Debt Securities of such series, upon the deposit
with the Trustee, in trust, of money and/ or U.S. Government Obligations which
through the payment of interest and principal in respect thereof in accordance
with their terms will provide money in an amount sufficient to pay the principal
of (and premium, if any), each instalment of interest on and any sinking fund
payments on the Senior Debt Securities of such series on the Stated Maturity of
such payments in accordance with the terms of the Senior Indenture and the
Senior Debt Securities of such series. The obligations of the Company under the
Senior Indenture and the Senior Debt Securities of such series other than with
respect to such covenant shall remain in full force and effect. Such a trust may
be established only if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (i) the
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Holders of the Senior Debt 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 amounts and in the same manner and at the same times as would have been
the case if such deposit and defeasance has not occurred and (ii) the Senior
Debt Securities of such series, if then listed on any domestic or foreign
securities exchange, will not be delisted as a result of such deposit and
defeasance. (Section 10.11 of Senior Indenture)
In the event the Company exercises its option to omit compliance with the
covenants described under "Certain Covenants of the Company" above with respect
to the Senior Debt Securities of any series as described above and the Senior
Debt Securities of such series are declared due and payable because of the
occurrence of any Event of Default, then the amount of money and U.S. Government
Obligations on deposit with the Trustee will be sufficient to pay amounts due on
the Senior Debt Securities of such series at the time of their Stated Maturity
but may not be sufficient to pay amounts due on the Senior Debt Securities of
such series at the time of the acceleration resulting from such Default. The
Company shall in any event remain liable for such payments as provided in the
Senior Indenture.
MEETINGS, MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the Company
and the Trustee under the applicable Indenture only with the consent of the
Holders of not less than 66 2/3% aggregate principal amount of the Outstanding
Debt Securities issued under the applicable Indenture and affected by such
modification or amendment unless a greater percentage of such aggregate
principal amount is specified in the applicable Prospectus Supplement; provided,
however, that no such modification or amendment may, without the consent of each
Holder of such Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any instalment of principal of or interest on,
any such Debt Security, (b) reduce the principal amount of, or any premium or
interest on, any such Debt Security, (c) change any obligation of the Company to
pay additional amounts, (d) reduce the amount of principal of an Original Issue
Discount Security or any other Debt Security payable upon acceleration of the
maturity thereof, (e) change the coin or currency in which any Debt Security or
any premium or interest thereon is payable, (f) impair the right to institute
suit for the enforcement of any payment on or with respect to any such Debt
Security, (g) adversely change the right to convert or exchange, including
decreasing the conversion rate or increasing the conversion price of, such Debt
Security (if applicable), (h) in the case of the Subordinated Indenture, modify
the subordination provisions in a manner adverse to the Holders of the
Subordinated Debt Securities, (i) reduce the percentage in principal amount of
Outstanding Debt Securities of any series, the consent of whose Holders is
required for modification or amendment of the applicable Indenture or for waiver
of compliance with certain provisions of the applicable Indenture or for waiver
of certain defaults, (j) reduce the requirements contained in the applicable
Indenture for quorum or voting, (k) change any obligations of the Company to
maintain an office or agency in the places and for the purposes required by the
Indentures, or (l) modify any of the above provisions. (Section 9.2)
The Holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
the Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the applicable
Indenture and, if applicable, such Debt Securities, unless a greater percentage
of such aggregate principal amount is specified in the applicable Prospectus
Supplement. (Section 10.10) The Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of each series may, on
behalf of all Holders of Debt Securities of that series and any coupons
pertaining thereto, waive any past default under the applicable Indenture,
except a default (a) in the payment of principal of, or premium, if any, or any
interest on any Debt Security of such series, and (b) in respect of a covenant
or provision of the applicable Indenture and, if applicable, such Debt
Securities which cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security of such series affected. (Section 5.13)
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The applicable Indenture will provide that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities
have given any request, demand, authorization, direction, notice, consent or
waiver thereunder or are present at a meeting of Holders of Debt Securities for
quorum purposes, (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, and (ii) the principal amount of a Debt
Security denominated in a foreign currency or currency units shall be the U.S.
dollar equivalent, determined on the date of original issuance of such Debt
Security, of the principal amount of such Debt Security or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the amount determined as
provided in (i) above. (Section 1.1)
The applicable Indenture will contain provisions for convening meetings of
the Holders of Debt Securities of a series if Debt Securities of that series are
issuable as Bearer Securities. (Section 13.1) A meeting may be called at any
time by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given in accordance with "Notices" below. (Section
13.2) Except for any consent which must be given by the Holder of each
Outstanding Debt Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in principal amount
of the Outstanding Debt Securities of that series; provided, however, that,
except for any consent which must be given by the Holder of each Outstanding
Debt Security affected thereby, as described above, any resolution with respect
to any consent or waiver which may be given by the Holders of not less than
66 2/3% in principal amount of the Outstanding Debt Securities of a series may
be adopted at a meeting or an adjourned meeting at which a quorum is present
only by the affirmative vote of 66 2/3% in principal amount of the Outstanding
Debt Securities of that series; and provided, further, that, except for any
consent which must be given by the Holder of each Outstanding Debt Security
affected thereby, as described above, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which 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 Debt Securities of a series may be adopted at a meeting or adjourned
meeting duly reconvened at which a quorum is present by the affirmative vote of
the Holders of such specified percentage in the principal amount of the
Outstanding Debt Securities of that series. Any resolution passed or decision
taken at any meeting of Holders of Debt Securities of any series duly held in
accordance with the applicable Indenture will be binding on all Holders of Debt
Securities of that series and the related coupons. The quorum at any meeting
called to adopt a resolution, and at any reconvened meeting, will be persons
holding or representing a majority in principal amount of the Outstanding Debt
Securities of a series; provided, however, that if any action is to be taken at
such meeting with respect to a consent or waiver which may be given by the
Holders of not less than 66 2/3% in principal amount of the Outstanding Debt
Securities of a series, the persons holding or representing 66 2/3% in principal
amount of the Outstanding Debt Securities of such series will constitute a
quorum. (Section 13.4)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under the applicable Indenture, may consolidate or merge with or
into, sell, lease, transfer or otherwise dispose of its assets substantially as
an entirety to, any Person which is a corporation, partnership or trust
organized and validly existing under the laws of any domestic jurisdiction, or
may permit any such Person to consolidate or merge with or into the Company or
sell, lease, transfer or otherwise dispose of its assets substantially as an
entirety to the Company, provided that any successor Person assumes the
Company's obligations on the Debt Securities and under the applicable Indenture,
that after giving effect to the transaction no Event of Default, and no event
which, after notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing, and that certain other conditions are met.
(Section 8.1)
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REDEMPTION AT THE OPTION OF HOLDERS UPON CHANGE IN CONTROL
In the event of any Change in Control (as hereinafter defined) of the
Company, prior to maturity of the Debt Securities, that has not been approved by
the Continuing Directors (as hereinafter defined) of the Company, Debt
Securities may be submitted for redemption, on and after the Exchange Date in
the case of Debt Securities of any series issuable as Bearer Securities or at
any time in the case of all other Debt Securities, at the option of the Holders,
unless, prior to the expiration of ten days following such Change in Control,
the Company, if permitted to do so by the terms of the Debt Securities of a
series, shall have called all of the Debt Securities of such series for
redemption. Bearer Securities may be so redeemed only in whole and Registered
Securities in whole or in part in increments of $1,000. Any Debt Securities to
be so submitted must be submitted during a period (the "Exercise Period")
commencing on the date of the Company's notice described below to Holders of
such Change in Control and expiring on the 20th business day after such notice
is given.
Debt Securities submitted for redemption will be redeemed on a Redemption
Date that will be the 15th day after expiration of the Exercise Period, at a
redemption price of 100% of the principal amount of the Debt Security, plus
accrued interest to the Redemption Date. Exercise of this redemption option by
the Holder of a Debt Security will be irrevocable.
On or before the tenth day after a Change in Control, the Company is
obligated, unless the Continuing Directors have approved such Change in Control
prior to such date, to give notice to Holders as set forth under "Notices"
below, and written notice to the Trustee, regarding the Change in Control, the
date of expiration of the Exercise Period, the applicable Redemption Date, the
redemption price and the procedure which the Holder must follow to exercise this
option. To exercise this option, the Holder must deliver on or before the
expiration of the Exercise Period to one of the Paying Agents referred to below
written notice of the Holder's exercise of such option, together with the Debt
Securities with respect to which the option is being exercised, duly endorsed
(in the case of Registered Securities) for transfer. Each Bearer Security
delivered for redemption must be delivered with all coupons maturing after the
Redemption Date. If the Redemption Date falls between any Regular Record Date
and the next succeeding Payment Date, Registered Securities must be accompanied
by payment of an amount equal to the interest thereon which the registered
Holder is to receive on such Interest Payment Date.
As used herein, a "Change in Control" of the Company shall be deemed to have
occurred at such time or times as (a) 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 or (b) individuals who constitute the
Continuing Directors cease for any reason to constitute at least a majority of
the Company's directors. "Continuing Director" means any director who is a
director on the date hereof and any director who is nominated or elected by a
majority of Continuing Directors who are then directors.
The Company could, in the future, enter into certain transactions, including
certain recapitalizations or leveraged transactions of the Company, that would
not constitute a Change in Control or would constitute a Change of Control but
would not trigger the Change of Control purchase feature of the Debt Securities
if approved by the Continuing Directors and would increase the amount of the
Company's indebtedness outstanding at such time. However, the Senior Indenture
contains covenants of the Company limiting its ability to mortgage or sell
Principal Manufacturing Facilities or Forestlands. If a Change in Control were
to occur, there can be no assurance that the Company would have sufficient funds
to pay the Change in Control purchase price for all Debt Securities tendered by
the Holders thereof. In addition, the Company's ability to purchase Debt
Securities with cash may be limited by the terms of its then-existing borrowing
agreements. A default by the Company on its obligation to pay the Change in
Control purchase price or a breach of its covenant would result in an Event of
Default and could result in acceleration of the maturity of other indebtedness
of the Company at the time outstanding pursuant to cross-default provisions. The
Company will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act
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which may then be applicable and will file a Schedule 13E-4 or any other
schedule required thereunder and will otherwise comply with all federal or state
securities laws, as required, in connection with any of the Debt Securities
providing for redemption at the option of Holders.
NOTICES
Except as otherwise provided in the applicable Indenture, notices to Holders
of Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such Debt Securities. Notices to Holders of Registered Securities
will be given by mail to the address of such Holders as they appear in the
Security Register. (Sections 1.1, 1.6)
TITLE
Title to any temporary global Debt Security, any Bearer Securities
(including Bearer Securities in permanent global form) and any coupons
appertaining thereto will pass by delivery. 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 and the registered owner of any Registered Security
as the absolute owner thereof (whether or not such Debt Security or coupon shall
be overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. (Section 3.8)
REPLACEMENT OF DEBT SECURITIES AND COUPONS
Any mutilated Debt Security or a Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
Holder upon surrender of such Debt Security to the Trustee. Debt Securities or
coupons that became destroyed, stolen or lost will be replaced by the Company at
the expense of the Holder upon delivery of the Trustee of the Debt Security and
coupons or evidence of the destruction, loss or theft thereof satisfactory to
the Company and the Trustee; in the case of any coupon which becomes destroyed,
stolen or lost, such coupon will be replaced by issuance of a new Debt Security
in exchange for the Debt Security to which such coupon appertains. In the case
of a destroyed, lost or stolen Debt Security or coupon, an indemnity
satisfactory to the Trustee and the Company may be required at the expense of
the Holder of such Debt Security or coupon before a replacement Debt Security
will be issued. (Section 3.6)
GOVERNING LAW
The Indentures, the Debt Securities and the coupons will be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws. (Section 1.13)
REGARDING THE TRUSTEE
The Indentures contain limitations on the right of the Trustee, as a
creditor of the Company, to obtain payment of claims in certain cases or to
realize on certain property received in respect of any such claim as security or
otherwise. In addition, the Trustee may be deemed to have a conflicting interest
and may be required to resign as Trustee if at the time of a default under one
of the Indentures it is a creditor of the Company. The Chase Manhattan Bank,
N.A. also acts as trustee under various indentures and the Company and certain
subsidiaries from time to time maintain deposit accounts and conduct their
banking transactions with The Chase Manhattan Bank, N.A. in the ordinary course
of their business.
MEDIUM-TERM NOTES
The Company may offer from time to time up to $400,000,000 aggregate
principal amount of its medium-term notes (the "Medium-Term Notes"). The
particular terms and provisions of the Medium-Term Notes will be described in
the Prospectus Supplement relating to such Medium-Term Notes. The Medium-Term
Notes will be issued as a series of Senior Debt Securities under an Indenture,
dated as of May 22, 1992, as supplemented by the First Supplemental Indenture,
dated as of June 26, 1992 (the "Medium-Term Note Indenture"), between the
Company and The Bank of New York, as trustee. The terms and provisions of the
Medium-Term Note Indenture are substantially
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similar to those to be contained in the Senior Note Indenture. The Medium-Term
Note Indenture is incorporated by reference as an exhibit to the Registration
Statement of which this Prospectus is a part.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 400,000,000
shares of common stock, $1.00 par value per share (the "Common Stock"), (ii)
400,000 shares of cumulative $4 preferred stock, without par value (the "$4
Preferred Stock"), and (iii) 8,750,000 shares of serial preferred stock, $1.00
par value per share (the "Preferred Stock").
At February 28, 1994, there were outstanding (a) 124,465,467 shares of
Common Stock (as well as the same number of Common Share Purchase Rights to
purchase Common Stock pursuant to the Rights Agreement), (b) employee stock
options to purchase an aggregate of approximately 4,650,000 shares of Common
Stock, (c) 16,017 shares of $4 Preferred Stock and (d) no shares of any series
of Preferred Stock. In addition, approximately 2,900,000 shares of Common Stock
were reserved for issuance upon conversion of the Company's convertible
subordinated debentures.
DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of the
Company's Preferred Stock to which any Prospectus Supplement may relate. Certain
terms of any series of Preferred Stock offered by any Prospectus Supplement will
be described in the Prospectus Supplement relating thereto. If so indicated in
the Prospectus Supplement, the terms of any series may differ from the terms set
forth below. The description of certain provisions of the Company's Preferred
Stock does not purport to be complete and is subject to and qualified in its
entirety by reference to the provisions of the Company's Restated Certificate of
Incorporation (the "Restated Certificate of Incorporation"), and the Certificate
of Designation (the "Certificate of Designation") relating to each particular
series of Preferred Stock which will be filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement of which this
Prospectus is a part at or prior to the time of the issuance of such Preferred
Stock.
GENERAL
Under the Company's Restated Certificate of Incorporation, the Board of
Directors of the Company is authorized, without further stockholder action, to
provide for the issuance of up to 8,750,000 shares of Preferred Stock. The
Preferred Stock may be issued in one or more series, with such designations of
titles; dividend rates; any redemption provisions; special or relative rights in
the event of liquidation, dissolution, distribution or winding up of the
Company; any sinking fund provisions; any conversion provisions; any voting
rights thereof; and any other preferences, privileges, powers, rights,
qualifications, limitations and restrictions, as shall be set forth as and when
established by the Board of Directors of the Company. The shares of any series
of Preferred Stock will be, when issued, fully paid and non-assessable and
holders thereof will have no preemptive rights in connection therewith.
So long as any shares of $4 Preferred Stock are outstanding, the
preferences, privileges and voting powers, if any, of the shares of Preferred
Stock of any series, and the restrictions or qualifications thereof, shall be
subject to the preferences, privileges and voting powers, if any, of the shares
of $4 Preferred Stock and the restrictions and qualifications thereof.
RANK
Any series of Preferred Stock will, with respect to rights on liquidation,
winding up and dissolution, rank (i) senior to all classes of Common Stock and
to all equity securities issued by the Company, the terms of which specifically
provide that such equity securities will rank junior to such series of Preferred
Stock (the "Junior Liquidation Securities"); (ii) on a parity with all equity
securities issued by the Company, the terms of which specifically provide that
such equity securities will rank on a
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parity with such series of Preferred Stock ("Parity Liquidation Securities");
and (iii) junior to all equity securities issued by the Company, the terms of
which specifically provide that such equity securities will rank senior to such
series of Preferred Stock, including the $4 Preferred Stock (the "Senior
Liquidation Securities"). In addition, any series of Preferred Stock will, with
respect to dividend rights, rank (i) senior to all equity securities issued by
the Company, the terms of which specifically provide that such equity securities
will rank junior to such series of Preferred Stock and, to the extent provided
in the applicable Certificate of Designation, to Common Stock, (ii) on a parity
with all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank on a parity with such
series of Preferred Stock and, to the extent provided in the applicable
Certificate of Designation, to Common Stock ("Parity Dividend Securities") and
(iii) junior to all equity securities issued by the Company, the terms of which
specifically provide that such equity securities will rank senior to such series
of Preferred Stock, including the $4 Preferred Stock. As used in any Certificate
of Designation for these purposes, the term "equity securities" will not include
debt securities convertible into or exchangeable for equity securities.
DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive, when,
as and if declared by the Board of Directors of the Company out of funds legally
available therefor, cash dividends at such rates and on such dates as are set
forth in the Prospectus Supplement relating to such series of Preferred Stock.
Dividends will be payable to holders of record of Preferred Stock as they appear
on the books of the Company (or, if applicable, the records of the Depositary
referred to below under "Description of Depositary Shares") on such record dates
as shall be fixed by the Board of Directors. Dividends on any series of
Preferred Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid on funds set apart for the payment
of dividends on any series of Preferred Stock unless dividends shall have been
paid or set apart for such payment on the Parity Dividend Securities. If full
dividends are not so paid, such series of Preferred Stock shall share dividends
pro rata with the Parity Dividend Securities.
CONVERSION AND EXCHANGE
The Prospectus Supplement for any series of Preferred Stock will state the
terms, if any, on which shares of that series are convertible into shares of
another series of Preferred Stock or Common Stock or exchangeable for another
series of Preferred Stock, Common Stock or Debt Securities of the Company. The
Common Stock of the Company is described below under "Description of Common
Stock."
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Company or the holder thereof and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by mandatory
or optional redemption, the shares to be redeemed will be determined by lot or
pro rata, as may be determined by the Board of Directors of the Company, or by
any other method determined to be equitable by the Board of Directors.
On and after a redemption date, unless the Company defaults in the payment
of the redemption price, dividends will cease to accrue on shares of Preferred
Stock called for redemption and all rights of holders of such shares will
terminate except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of each series of Preferred Stock that ranks senior to the
Junior Liquidation Securities will be entitled to receive out of assets of the
Company available for distribution to shareholders, before any
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distribution is made on any Junior Liquidation Securities, including Common
Stock, distributions upon liquidation in the amount set forth in the Prospectus
Supplement relating to such series of Preferred Stock, plus an amount equal to
any accrued and unpaid dividends. If, upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the amounts payable with
respect to the Preferred Stock of any series and any other Parity Liquidation
Securities are not paid in full, the holders of the Preferred Stock of such
series and the Parity Liquidation Securities will share ratably in any such
distribution of assets of the Company in proportion to the full liquidation
preferences to which each is entitled. After payment of the full amount of the
liquidation preference to which they are entitled, the holders of such series of
Preferred Stock will not be entitled to any further participation in any
distribution of assets of the Company.
VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock or except as expressly required by
applicable law, the holders of shares of Preferred Stock will have no voting
rights.
PREFERRED STOCK OUTSTANDING
As of February 28, 1994, the Company had issued and outstanding 16,017
shares without par value of $4 Preferred Stock, which is senior to the Common
Stock and the Preferred Stock as to the payment of dividends and distributions
of assets on liquidation, dissolution or winding up of the Company. The $4
Preferred Stock bears a dividend of $4.00 per share per annum from the surplus
or net profits of the Company, but only when and as declared by the Board of
Directors. Dividends on the $4 Preferred Stock are cumulative. Such dividends
are payable quarterly in each year on such dates as from time to time may be
fixed by the Board of Directors. Accumulation of dividends do not bear interest.
If dividends in full on all outstanding shares of the $4 Preferred Stock for
all past quarterly dividend periods and for the then current quarterly period
have not been paid or declared and set apart for payment, no dividends (other
than dividends payable in stock ranking junior to the $4 Preferred Stock) will
be declared or paid or set apart for payment on, nor will any distribution be
made to, any class of stock ranking junior to the $4 Preferred Stock.
Holders of the $4 Preferred Stock have no general voting rights but have the
right to vote in certain specified circumstances.
If at the time of any annual meeting of shareholders, dividends have not
been paid on the shares of the $4 Preferred Stock in an aggregate amount equal
to four full quarterly dividends (whether consecutive or not), then at such
annual meeting, the holders of the $4 Preferred Stock will have the sole right,
to the exclusion of all other classes of stock, to vote for and elect one-third
(or the nearest whole number thereto) of the total number of directors to be
elected at the meeting and thereafter at all meetings for the election of
directors until all arrearages of dividends accumulated on the $4 Preferred
Stock for all preceding dividend periods shall have been paid or declared and
set apart for payment. Whenever all arrearages of dividends have been paid or
declared and set apart for payment, all powers of the holders of the $4
Preferred Stock to vote for directors will terminate, and the tenure of all
Directors elected by them will automatically end.
So long as any shares of the $4 Preferred Stock are outstanding, the
Company, without first obtaining a majority vote of the holders of the
outstanding shares of the $4 Preferred Stock, may not (i) increase the
authorized number of $4 Preferred Stock, (ii) authorize, create or issue stock
of any class ranking, as to the payment of dividends or distributions upon
dissolution, liquidation or winding up, on a parity with the $4 Preferred Stock,
or (iii) sell, lease or otherwise dispose of all or substantially all of the
assets of the Company, otherwise than by merger or consolidation.
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In addition, so long as any shares of $4 Preferred Stock are outstanding,
the Company may not, without first obtaining the vote of holders of at least
two-thirds of the outstanding shares of $4 Preferred Stock, authorize, create or
issue stock of any class ranking, as to the payment of dividends or distribution
upon dissolution, liquidation or winding up, senior to the $4 Preferred Stock.
The Company's Restated Certificate of Incorporation provides that for so
long as any shares of Preferred Stock are outstanding, the Company will not
issue any shares of the $4 Preferred Stock without first obtaining the
affirmative vote of the holders of at least a majority of the outstanding shares
of Preferred Stock.
Upon the dissolution, liquidation or winding up of the Company, the holders
of the $4 Preferred Stock will be entitled to receive out of the net assets of
the Company (whether represented by capital or surplus), (i) if such
dissolution, liquidation or winding up is voluntary, cash in an amount per share
of $105, and (ii) if such dissolution, liquidation or winding up is involuntary,
cash in the amount of $100 per share. In addition, such holders will be entitled
to receive, in each case, an amount equal to all dividends accrued and unpaid on
such share up to and including the date fixed for distribution, whether or not
earned or declared and, in either case, before any distribution of the assets to
be distributed is made to the holders of stock ranking junior to the $4
Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement and
Deposit Receipt relating to the Preferred Stock, included as exhibits to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, the Company will issue receipts for Depositary Shares, each
of which will represent a fraction (to be set forth in the Prospectus Supplement
relating to a particular series of Preferred Stock) of a share of a particular
series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") between
the Company and a bank or trust company selected by the Company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Company or any holder of deposited Preferred
Stock, execute and deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the rights pertaining to,
the definitive Depositary Receipts. Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited Preferred Stock to the record
holders of Depositary Shares relating to such Preferred Stock in proportion to
the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Company, sell such property
and distribute the net proceeds from such sale to such holders.
REDEMPTION OF STOCK
If a series of Preferred Stock represented by Depositary Shares is to be
redeemed, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary Shares will be
redeemed by the Depositary at a price per Depositary Share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of Preferred Stock so redeemed. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same date the number of Depositary Shares representing shares of Preferred Stock
so redeemed. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by the Depositary by lot or
pro rata or by any other equitable method as may be determined by the
Depositary.
WITHDRAWAL OF STOCK
Any holder of Depositary Shares may, upon surrender of the Depositary
Receipts at the corporate trust office of the Depositary (unless the related
Depositary Shares have previously been called for redemption), receive the
number of whole shares of the related series of Preferred Stock and any money or
other property represented by such Depositary Receipts. Holders of Depositary
Shares making such withdrawals will be entitled to receive whole shares of
Preferred Stock on the basis set forth in the related Prospectus Supplement for
such series of Preferred Stock, but holders of such whole shares of Preferred
Stock will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary
Shares surrendered by the holder in connection with such withdrawal exceed the
number of Depositary Shares that represent the number of whole shares of
Preferred Stock to be withdrawn, the Depositary will deliver to such holder at
the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
deposited Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such series of Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as the
record date for the relevant series of Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of the Preferred Stock represented by such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable, to vote the amount
of such series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable actions that may be deemed necessary by the Depositary in order to
enable the Depositary to do so. The Depositary will abstain from voting shares
of the Preferred Stock to the extent it does not receive specific instructions
from the holder of Depositary Shares representing such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the holders
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of the Depositary Shares representing Preferred Stock of any series will not be
effective unless such amendment has been approved by the holders of at least the
amount of the Depositary Shares then outstanding representing the minimum amount
of Preferred Stock of such series necessary to approve any amendment that would
materially and adversely affect the rights of the holders of the Preferred Stock
of such series. Every holder of an outstanding Depositary Receipt at the time
any such amendment becomes effective, or any transferee of such holder, shall be
deemed, by continuing to hold such Depositary Receipt, or by reason of the
acquisition thereof, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. The Deposit Agreement automatically
terminates if (i) all outstanding Depositary Shares have been redeemed; or (ii)
each share of Preferred Stock has been converted into other preferred stock or
Common Stock or has been exchanged for debt securities; or (iii) there has been
a final distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay all charges of the Depositary in connection with the initial deposit of
the relevant series of Preferred Stock and any redemption of such Preferred
Stock. Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges or expenses as are expressly
provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Depositary will forward all reports and communications from the Company
which are delivered to the Depositary and which the Company is required to
furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares, Depositary
Receipts or shares of Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or upon
information provided by holders of Depositary Receipts or other persons believed
to be competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK
GENERAL
Subject to the rights of the Holders of any shares of the Company's
Preferred Stock or $4 Preferred Stock which may at the time be outstanding,
holders of Common Stock are entitled to receive such dividends as may be
declared from time to time by the Board of Directors out of funds legally
available therefor.
The holders of Common Stock are entitled to one vote per share on all
matters submitted to a vote of shareholders and do not have cumulative voting
rights. Holders of Common Stock are entitled to receive, upon any liquidation of
the Company, all remaining assets available for distribution to
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shareholders after satisfaction of the Company's liabilities and the
preferential rights of any preferred stock that may then be issued and
outstanding. The outstanding shares of Common Stock are, and the shares offered
hereby will be, fully paid and nonassessable. The holders of Common Stock have
no preemptive, conversion or redemption rights. The Common Stock is listed on
the New York Stock Exchange. The registrar and transfer agent for the Common
Stock is Chemical Bank.
CERTAIN PROVISIONS
The Company's Restated Certificate of Incorporation contains provisions
which: (1) divide the Board of Directors into three classes of as nearly equal
size as possible, with Directors in each class being elected for terms of three
years; (2) require the affirmative vote of 80% of the outstanding shares of
voting stock to remove any Director except for cause; (3) require the
affirmative vote of (a) 80% of the outstanding shares of voting stock and (b) a
majority of the voting stock not owned by an Interested Stockholder (an owner of
10% or more of voting power) to approve any Business Combination (as such term
is defined in the Company's Restated Certificate of Incorporation) with an
Interested Stockholder unless (x) the Business Combination shall have been
approved by the Board of Directors at a time when Disinterested Directors (those
directors unaffiliated with an Interested Stockholder who were either on the
Board of Directors prior to the time the Interested Stockholder became an
Interested Stockholder or succeeded a Disinterested Director and were
recommended for a nomination or election by a majority of the Disinterested
Directors) constitute a majority of the entire Board of Directors or (y) in the
case of a Business Combination involving the payment of consideration to holders
of capital stock, certain conditions concerning the adequacy of the
consideration are met; (4) require the affirmative vote of 80% of the
outstanding shares of voting stock to amend or repeal those provisions of the
Company's Restated Certificate of Incorporation described in clauses (1) and (2)
above; and (5) require the affirmative vote of (x) 80% of the outstanding shares
of voting stock and (y) a majority of the voting stock not owned by an
Interested Stockholder, to approve any proposal made by such Interested
Stockholder to amend or repeal those provisions of the Company's Restated
Certificate of Incorporation described in clause (3) above, unless such proposal
is recommended by the Board of Directors at a time when Disinterested Directors
constitute a majority of the entire Board of Directors.
The overall effect of these provisions may be to deter or discourage hostile
takeover attempts by making it more difficult for a person who has gained a
substantial equity interest in the Company effectively to exercise control.
COMMON SHARE PURCHASE RIGHTS
In April 1987, the Company's Board of Directors authorized the distribution
of one Common Share Purchase Right (a "Right") for each outstanding share of
Common Stock. Pursuant to the terms of the Rights Agreement (as hereinafter
defined), each share of Common Stock issued subsequent to the effective date of
such Agreement and prior to the Distribution Date (as hereinafter defined), has
been and will be accompanied by one Right. Each Right entitles the registered
holder to purchase from the Company one share of Common Stock at an exercise
price of $155, subject to adjustment as provided below (the "Purchase Price").
As distributed, the Rights trade together with the Common Stock. They may be
exercised or traded separately only after the earlier to occur of: (i) the tenth
business day after the commencement of, or first public disclosure of an
intention to commence, a tender or exchange offer by a person or group other
than the Company if, upon consummation of the offer, such person or group has
acquired beneficial ownership of 20% or more of the outstanding Common Stock, or
(ii) the tenth day after the first public announcement that an Acquiring Person
(as such term is defined in the Rights Agreement) has acquired the beneficial
ownership of 20% or more of the shares of Common Stock outstanding (the earlier
of such dates being called the "Distribution Date").
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The Rights will expire on April 29, 1997 (the "Final Expiration Date"),
unless earlier redeemed by the Company as provided below. Until a Right is
exercised, the holder thereof will have no additional rights as a shareholder of
the Company, including, without limitation, the right to vote or to receive
dividends on shares of Common Stock subject to the Rights.
In the event that, following the Distribution Date, the Company (i) engages
in a merger or other business combination transaction with a Principal Party (as
such term is defined in the Rights Agreement) in which the shares of Common
Stock are changed into, or exchanged for, stock or other securities of any other
person or cash or other property, or (ii) sells or transfers 50% or more of its
assets or earnings power to a Principal Party, each holder of a Right (except as
provided below) shall thereafter have the right to receive, upon exercise
thereof at the Purchase Price, Common Stock of such Principal Party having a
value of twice such Purchase Price. In the event that (i) an Acquiring Person
shall acquire beneficial ownership of 20% or more of the shares of Common Stock
outstanding, other than pursuant to an offer for all outstanding shares of
Common Stock which the Continuing Directors (as such term is defined in the
Rights Agreement), determine to be in the best interests of the Company and its
shareholders, (ii) the Company merges with an Acquiring Person and the Company
is the surviving corporation and all shares of Common Stock remain outstanding
and unchanged or (iii) an Acquiring Person engages in one or more "self-dealing"
transactions with the Company, each holder of a Right will be entitled to
purchase, at the Purchase Price, (A) shares of Common Stock of the Company
having a value of twice the Purchase Price or (B) in certain circumstances as
determined by the Continuing Directors, any combination of cash, property,
shares of Common Stock or other securities equal to twice the Purchase Price
(any of the events described in this paragraph being called "Triggering
Events"). Any rights that are or were at any time on or after the earlier of the
Distribution Date or the Stock Acquisition Date (as such term is defined in the
Rights Agreement), beneficially owned by an Acquiring Person will become null
and void upon the occurrence of a Triggering Event and any holder of any such
Right will be unable to exercise such Right after the occurrence of a Triggering
Event.
At any time prior to the earlier of (i) the tenth day following the Stock
Acquisition Date or (ii) the Final Expiration Date, the Board of Directors of
the Company may redeem the Rights in whole, but not in part, at a price of $.05
per Right.
The Purchase Price payable, and the number of shares of Common Stock or
other securities or property issuable, upon exercise of the Rights are subject
to adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Common
Stock, (ii) upon the grant to holders of Common Stock of certain rights or
warrants to subscribe for shares of Common Stock or convertible securities at
less than the current market price of the Common Stock or (iii) upon the
distribution to holders of Common Stock of evidences of indebtedness,
securities, cash or assets (excluding regular periodic dividends) or of
subscription rights or warrants (other than those referred to above). With
certain exceptions, no adjustment in the Purchase Price will be required until
cumulative adjustments require an adjustment of at least 1% in the Purchase
Price.
The Rights have certain antitakeover effects. The Rights may cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors of the Company. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors of the Company since the Rights may be redeemed at a
price of $.05 per Right prior to the time that a person or group has acquired
beneficial ownership of 20% or more of the outstanding Common Stock.
The Rights Agreement (the "Rights Agreement") dated as of April 14, 1987, as
amended December 14, 1989, between the Company and Chemical Bank (successor to
Manufacturers Hanover Trust Company), as Rights Agent, specifies the terms of
the Rights. The foregoing description of the Rights is qualified in its entirety
by reference to such Rights Agreement, which is an exhibit to the Company's
registration statement on Form 8-A, dated April 17, 1987, as amended,
incorporated by reference herein.
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DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as other types of Warrants to purchase
Securities. Warrants may be issued independently or together with any Securities
and may be attached to or separate from such Securities. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to be entered into
between the Company and a bank or trust company, as warrant agent (the "Warrant
Agent"), all as shall be set forth in the Prospectus Supplement relating to
Warrants being offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the certificates representing such Debt Warrants, including the following:
(1) the title of such Debt Warrants; (2) the aggregate number of such Debt
Warrants; (3) the price or prices at which such Debt Warrants will be issued;
(4) the currency or currencies, including composite currencies or currency
units, in which the price of such Debt Warrants may be payable; (5) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants, and the procedures and
conditions relating to the exercise of such Debt Warrants; (6) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such Debt
Security; (7) the currency or currencies, including composite currencies or
currency units, in which the principal of or any premium or interest on the Debt
Securities purchasable upon exercise of such Debt Warrants will be payable; (8)
the date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (9) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant, and the price at
which and the currency or currencies, including composite currencies or currency
units, in which such principal amount of Debt Securities may be purchased upon
such exercise; (10) the date on which the right to exercise such Debt Warrants
will commence, and the date on which such right will expire; (11) the maximum or
minimum number of such Debt Warrants which may be exercised at any time; (12) a
discussion of any material federal income tax considerations; and (13) any other
terms of such Debt Warrants and terms, procedures and limitations relating to
the exercise of such Debt Warrants.
Certificates representing Debt Warrants will be exchangeable for new
certificates representing Debt Warrants of different denominations, and Debt
Warrants may be exercised at the corporate trust office of the Warrant Agent or
any other office indicated in the Prospectus Supplement. Prior to the exercise
of their Debt Warrants, holders of Debt Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payment of principal of or any premium or interest on the Debt
Securities purchasable upon such exercise.
OTHER WARRANTS
The Company may issue other Warrants. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of which
this Prospectus is being delivered: (1) the title of such Warrants; (2) the
Securities (which may include Preferred Stock or Common Stock) for which such
Warrants are exercisable; (3) the price or prices at which such Warrants will be
issued; (4) the currency or currencies, including composite currencies or
currency units, in which the price of such Warrants may be payable; (5) if
applicable, the designation and terms of the Preferred Stock or Common Stock
with which such Warrants are issued, and the number of such Warrants issued with
each such share of Preferred Stock or Common Stock; (6) if applicable, the date
on and after which such Warrants and the related Preferred Stock or Common Stock
will be separately transferable; (7) if applicable, a discussion of any material
federal income tax considerations; and (8) any other terms of such Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Warrants.
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EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such principal
amount of Debt Securities or number of shares of Preferred Stock or Common Stock
at such exercise price as shall in each case be set forth in, or be determinable
as set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised at any time up to the close of business on
the expiration date set forth in the Prospectus Supplement relating to the
Warrants offered thereby. After the close of business on the expiration date,
unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement relating
to the Warrants offered thereby. Upon receipt of payment and the certificate
representing the Warrant properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, forward the
Securities purchasable upon such exercise. If less than all of the Warrants
represented by such certificate are exercised, a new certificate will be issued
for the remaining Warrants.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities (including Debt Securities that are exchangeable for Bearer
Securities and Debt Securities in permanent global form that are either Bearer
Securities or exchangeable for Bearer Securities) may not be offered, sold,
resold or delivered in connection with their original issuance in the United
States or to United States persons (each as defined below) except as otherwise
permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D) including offers
and sales to offices located outside the United States of United States
financial institutions (as defined in Treasury Regulation Section
1.165-12(c)(1)(v)) which agree in writing to comply with the requirements of
Section 165(j)(3)(A),(B) or (C) of the Code, as defined below, and the
regulations thereunder, and any underwriters, agents and dealers participating
in the offering of Debt Securities must agree in writing that they will not
offer, sell or resell any Bearer Securities to persons within the United States
or to United States persons (except as described above) nor deliver Bearer
Securities within the United States. In addition, any such underwriters, agents
and dealers must represent in writing that they have in effect, in connection
with the offer and sale of the Debt Securities, procedures reasonably designed
to ensure that their employees or agents who are directly engaged in selling the
Debt Securities are aware that Bearer Securities cannot be offered or sold to a
person who is within the United States or is a United States person except as
otherwise permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D).
Furthermore, the owner of the obligation (or the financial institution or
clearing organization through which the owner holds the obligation) must certify
to the Company that the owner is not a United States Person. Bearer Securities
and any coupons attached hereto will bear the following legend: "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 United States Internal Revenue Code."
Purchasers of Bearer Securities may be affected by certain limitations under
United States tax laws. The applicable Prospectus Supplement or Prospectus
Supplements will describe such limitations for any Bearer Securities relating
thereto.
As used herein, "United States person" means (i) an individual who is, for
United States federal income tax purposes, a citizen or resident of the United
States, (ii) a corporation, partnership or other entity created or organized in
or under the laws of the United States or of any political subdivision thereof,
or (iii) an 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.
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PLAN OF DISTRIBUTION
The Company may sell Securities to or through underwriters or dealers and
also may sell Securities directly to other purchasers or through agents. Any
such underwriter or agent involved in the offer and sale of the Securities will
be named in an applicable Prospectus Supplement.
Underwriters may offer and sell the Securities at a fixed price or prices,
which may be changed, or from time to time at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company also may, from time to time, authorize
underwriters acting as the Company's agents to offer and sell the Securities
upon the terms and conditions as shall be set forth in any Prospectus
Supplement. In connection with the sale of Securities, underwriters may be
deemed to have received compensation from the Company in the form of
underwriting discounts or commissions from purchasers of Securities for whom
they may act as agent. Underwriters may sell Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions (which may be changed
from time to time) from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of Securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers, will be set forth
in an applicable Prospectus Supplement. Underwriters, dealers and agents
participating in the distribution of the Securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the Securities may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements with the Company, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act, and to reimbursement by the Company for certain
expenses.
If so indicated in an applicable Prospectus Supplement, the Company will
authorize dealers acting as the Company's agents to solicit offers by certain
institutions to purchase Debt Securities or Preferred Stock from the Company at
the public offering price set forth in such Prospectus Supplement pursuant to
Delayed Delivery Contracts ("Contracts") providing for payment and delivery on
the date or dates stated in such Prospectus Supplement. Each Contract will be
for an amount specified in the applicable Prospectus Supplement. Institutions
with whom Contracts, when authorized, may be made include commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but will in all cases be subject
to the approval of the Company. Contracts will not be subject to any conditions
except (i) the purchase by an institution of the Securities covered by its
Contracts shall not at the time of delivery be prohibited under the laws of any
jurisdiction in the United States to which such institution is subject, and (ii)
if the Securities are being sold to underwriters, the Company shall have sold to
such underwriters the amount specified in the applicable Prospectus Supplement.
Agents and underwriters will have no responsibility in respect of the delivery
or performance of Contracts. A commission as indicated in the applicable
Prospectus Supplement will be paid to underwriters and agents soliciting
purchases of Securities pursuant to Contracts accepted by the Company.
Each underwriter, dealer and agent participating in the distribution of any
Debt Securities which are issuable in bearer form will agree that it will not
offer, sell or deliver, directly or indirectly, Debt Securities in bearer form
in the United States or to United States persons except as otherwise permitted
by Treasury Regulation Section 1.163-5(c)(2)(i)(D). See "Limitations on Issuance
of Bearer Securities."
The Securities may not be offered or sold directly or indirectly in Great
Britain other than to persons whose ordinary business it is to buy or sell
shares or debentures (except in circumstances which do not constitute an offer
to the public within the meaning of the Companies Act of 1985), and this
Prospectus and any Prospectus Supplement or any other offering material relating
to the Securities may not be distributed in or from Great Britain other than to
persons whose business involves the acquisition and disposal, or the holding, of
securities whether as principal or as agent.
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<PAGE>
Each series of Securities will be a new issue with no established trading
market, other than the Common Stock which is listed on the New York Stock
Exchange. Any Common Stock sold pursuant to a Prospectus Supplement will be
listed on the New York Stock Exchange, subject to official notice of issuance.
Any underwriters to whom Securities are sold by the Company for public offering
and sale may make a market in such Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of the trading market for
any Securities.
Certain of the underwriters or agents and their associates may be customers
of, engage in transactions with and perform services for, the Company in the
ordinary course of business.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by James
W. Guedry, Esq., Associate General Counsel and Secretary of the Company, and
certain matters will be passed upon for any underwriters or agents, by Skadden,
Arps, Slate, Meagher & Flom. Mr. Guedry does not own a material or significant
amount of the outstanding shares of the Company's Common Stock. He participates
in the Company's Stock Option Plan and in its Salaried Savings Plan, having an
interest in a fund under that plan which invests in the Company's Common Stock.
EXPERTS
The financial statements and schedules incorporated by reference in this
prospectus and elsewhere in the registration statement, to the extent and for
the periods indicated in their reports, have been audited by Arthur Andersen &
Co., independent public accountants, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said reports.
30
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 689,656
Trustees' and Depositary's Fees and Expenses................ 88,000*
Printing and Engraving Fees................................. 50,000*
Rating Agency Fees.......................................... 199,000*
Accounting Fees............................................. 25,000*
Blue Sky and Legal Investment Fees and Expenses............. 10,000*
Miscellaneous............................................... 15,000*
----------
TOTAL................................................... $1,076,656*
----------
----------
<FN>
- ------------------------
*Estimated.
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 721 of the New York Business Corporation Law ("B.C.L.") provides
that, in addition to the indemnification provided in Article 7 of the B.C.L., a
corporation may indemnify a director or officer by a provision contained in its
certificate of incorporation or by-laws or by a duly authorized resolution of
its shareholders or directors or by agreement provided that no indemnification
may be made to or on behalf of any director or officer if a judgment or other
final adjudication adverse to the director or officer establishes that his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and material to the cause of action, or that such director or officer
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
Section 722(a) of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any action other
than a derivative action, whether civil or criminal, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, in criminal actions or proceedings,
in addition, has no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the B.C.L. provides that a corporation may indemnify a
director or officer, made or threatened to be made a party in a derivative
action, against amounts paid in settlement and reasonable expenses actually and
necessarily incurred by him in connection with the defense or settlement of such
action or in connection with an appeal therein if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or
not opposed to, the best interests of the corporation, except that no
indemnification will be available under Section 722(c) of the B.C.L. in respect
of a threatened or pending action which is settled or otherwise disposed of or
any claims as to which such director or officer shall have been adjudged liable
to the corporation, unless and only to the extent that the court in which the
action was brought, or, if no action was brought, any court of competent
jurisdiction, determines, upon application, that, in view of all the
circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and expenses as
the court deems proper.
Section 723 of the B.C.L. specifies the manner in which payment of
indemnification under Section 722 of the B.C.L. or indemnification permitted
under Section 721 of the B.C.L. may be authorized by the corporation. It
provides that indemnification may be authorized by the corporation. It provides
that indemnification by a corporation is mandatory in any case in which the
director or officer has been successful, whether on the merits or otherwise, in
defending an action. In the event that the director or officer has not been
successful or the action is settled, indemnification must be authorized by the
appropriate corporate action as set forth in Section 723. Section 724 of the
B.C.L.
II-1
<PAGE>
provides that, upon application by a director or officer, indemnification may be
awarded by a court to the extent authorized under Sections 722 and 723. Section
725 of the B.C.L. contains certain other miscellaneous provisions affecting the
indemnification of directors and officers.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and officers
in instances in which they may not otherwise be indemnified by a corporation
under such sections, provided the contract of insurance covering such directors
and officers provides, in a manner acceptable to the New York State
Superintendent of Insurance, for a retention amount and for co-insurance.
Article VII of the Restated Certificate of Incorporation of International
Paper Company provides in part as follows:
"Each Director of the Corporation shall be indemnified by the
Corporation against expenses actually and necessarily incurred by him in
connection with the defense of any action, suit or proceeding in which he is
made a party by reason of his being or having been a Director of the
Corporation, except in relation to matters as to which he shall be adjudged
in such action, suit or proceeding to be liable for negligence or misconduct
in the performance of his duties as such Director, provided that such right
of indemnification shall not be deemed exclusive of any other rights to
which a Director of the Corporation may be entitled, under any by-law,
agreement, vote of stockholders or otherwise."
Article IX of the By-laws, as amended, of the Company provides as follows:
"The Corporation shall indemnify each Officer or Director who is made,
or threatened to be made, a party to any action by reason of the fact that
he or she is or was an Officer or Director of the Corporation, or is or was
serving at the request of the Corporation in any capacity for the
Corporation or any other enterprise, to the fullest extent permitted by
applicable law. The Corporation may, so far as permitted by law, enter into
an agreement to indemnify and advance expenses to any Officer or Director
who is made, or threatened to be made, a party to any such action."
The Company has purchased certain liability insurance for its officers and
directors as permitted by Section 727 of the B.C.L., has entered into indemnity
agreements with its directors and certain officers providing indemnification in
addition to that provided under the B.C.L., as permitted by Section 721 of the
B.C.L.
ITEM 16. EXHIBITS
<TABLE>
<S> <C> <C>
1.1 -- Form of Underwriting Agreement (Standard Provisions) for Debt Securities.
1.2 -- Form of Underwriting Agreement (Standard Provisions) for Preferred Stock.
1.3 -- Form of Underwriting Agreement (Standard Provisions) for Common Stock.
1.4 -- Form of Agency Agreement (incorporated herein by reference to International Paper
Company's Registration Statement on Form S-3 (File No. 33-48167)).
4.1 -- Restated Certificate of Incorporation of International Paper Company (incorporated
herein by reference to International Paper Company's Form 8-K dated November 20, 1990).
4.2 -- By-Laws of International Paper Company (incorporated herein by reference to
International Paper Company's Form 8-K dated November 20, 1990).
</TABLE>
II-2
<PAGE>
<TABLE>
<S> <C> <C>
4.3 -- Rights Agreement, as amended, between International Paper Company and Chemical Bank (as
successor to Manufacturers Hanover Trust Company), as Rights Agent (incorporated herein
by reference to International Paper Company's Registration Statement on Form 8-A dated
April 17, 1987, as amended December 14, 1989).
4.4 -- Form of Certificate for shares of Common Stock (incorporated herein by reference to
International Paper Company's Registration Statement on Form S-3 (File No. 33-44855)).
4.5 -- Form of Indenture for Senior Debt Securities between International Paper Company and The
Chase Manhattan Bank, N.A., as Trustee, including forms of Senior Debt Securities.
4.6 -- Form of Indenture for Subordinated Debt Securities between International Paper Company
and The Chase Manhattan Bank, N.A., as Trustee, including forms of Subordinated Debt
Securities.
4.7 -- Indenture, dated as of May 22, 1992, between International Paper Company and The Bank of
New York, as Trustee, including forms of Debt Securities (incorporated herein by
reference to International Paper Company's Registration Statement on Form S-3 (File No.
33-48167)).
4.8 -- Form of First Supplemental Indenture between International Paper Company and The Bank of
New York, as Trustee (incorporated herein by reference to International Paper Company's
Registration Statement on Form S-3 (File No. 33-48167)).
4.9 -- Form of Deposit Agreement, including the form of Depositary Receipt.
5.1 -- Opinion of James W. Guedry, Esq.
12.1 -- Statements re: Computation of Ratio of Earnings to Fixed Charges.
12.2 -- Statements re: Computation of Ratio of Earnings to Combined Fixed Charges and Preferred
Stock Dividends.
23.1 -- Consent of Arthur Andersen & Co., independent public accountants.
23.2 -- Consent of James W. Guedry, Esq. (included in Exhibit 5.1).
24.1 -- Powers of Attorney.
25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of the Trustee for the Senior Indenture.
25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of the Trustee for the Subordinated Indenture.
25.3 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of
1939 of the Trustee for the Medium-Term Note Indenture (incorporated herein by
reference to International Paper Company's Registration Statement on Form S-3 (File No.
33-48167)).
</TABLE>
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions set forth in Item 15, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted against the registrant by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IS HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT ON FORM S-3 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN PURCHASE, NEW YORK, ON APRIL 1, 1994.
INTERNATIONAL PAPER COMPANY
By /s/ JAMES W. GUEDRY
------------------------------------
JAMES W. GUEDRY
SECRETARY
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT ON FORM S-3 HAS BEEN SIGNED ON APRIL 1, 1994 BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE
- ------------------------------------------------------ -------------------------------
<C> <S>
/s/ JOHN A. GEORGES
-------------------------------------------
(JOHN A. GEORGES) Director and Chairman of the
Board (Chief Executive
Officer)
/s/ JOHN T. DILLON*
-------------------------------------------
(JOHN T. DILLON) Executive Vice President and
Director
/s/ WILLARD C. BUTCHER*
-------------------------------------------
(WILLARD C. BUTCHER) Director
/s/ FREDERICK B. DENT*
-------------------------------------------
(FREDERICK B. DENT) Director
/s/ WILLIAM M. ELLINGHAUS*
-------------------------------------------
(WILLIAM M. ELLINGHAUS) Director
-------------------------------------------
(STANLEY C. GAULT) Director
/s/ THOMAS C. GRAHAM*
-------------------------------------------
(THOMAS C. GRAHAM) Director
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE
- ------------------------------------------------------ -------------------------------
<C> <S>
/s/ ARTHUR G. HANSEN*
-------------------------------------------
(ARTHUR G. HANSEN) Director
/s/ WILLIAM G. KUHNS*
-------------------------------------------
(WILLIAM G. KUHNS) Director
/s/ DONALD F. MCHENRY*
-------------------------------------------
(DONALD F. MCHENRY) Director
/s/ PATRICK F. NOONAN*
-------------------------------------------
(PATRICK F. NOONAN) Director
/s/ JANE C. PFEIFFER*
-------------------------------------------
(JANE C. PFEIFFER) Director
/s/ SAMUEL R. PIERCE, JR.*
-------------------------------------------
(SAMUEL R. PIERCE, JR.) Director
/s/ EDMUND T. PRATT, JR.*
-------------------------------------------
(EDMUND T. PRATT, JR.) Director
/s/ ROGER B. SMITH*
-------------------------------------------
(ROGER B. SMITH) Director
/s/ ROBERT C. BUTLER
-------------------------------------------
(ROBERT C. BUTLER) Senior Vice President and Chief
Financial Officer
/s/ ANDREW R. LESSIN
-------------------------------------------
(ANDREW R. LESSIN) Controller and Chief Accounting
Officer
*By /s/ JAMES W. GUEDRY
---------------------------------------
(JAMES W. GUEDRY, ATTORNEY-IN-FACT)
</TABLE>
II-6
<PAGE>
Exhibit 1.1
INTERNATIONAL PAPER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
<PAGE>
From time to time, International Paper Company, a New York corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities (the "Offered Securities") to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The Company proposes to issue from time to time debt securities to be
issued pursuant to the provisions of either an indenture relating to senior debt
securities ("Senior Debt Securities") dated as of April 1, 1994, as it may be
supplemented from time to time (the "Senior Indenture"), between the Company and
Chase Manhattan Bank, N.A., as trustee or an indenture relating to subordinated
debt securities ("Subordinated Debt Securities"), dated as of April 1, 1994, as
it may be supplemented from time to time (the "Subordinated Indenture"), between
the Company and The Chase Manhattan Bank, N.A., as trustee (the Senior
Indenture or the Subordinated Indenture, as the case may be, each sometimes
being referred to herein as the "Indenture"). In each case, such debt
securities will have varying designations, may have varying maturities,
interest rates and time of payment of interest, selling prices, redemption
terms and other terms. Such Senior Debt Securities and Subordinated Debt
Securities are herein sometimes collectively referred to as the "Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). The term "Registration Statement" means the
2
<PAGE>
registration statement as amended to the date of the Underwriting Agreement.
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term preliminary prospectus
means a preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms
"Registration Statement," "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include, in each case, the material, if any, incorporated by
reference therein.
The Offered Securities shall include the Firm Securities (the "Firm
Securities") which the Underwriters have agreed to purchase on the Closing Date
together with any Optional Securities (as hereinafter defined) which the
Underwriters may elect to purchase pursuant to Article IV hereof. The term
"Underwriters' Securities" means the Offered Securities to be purchased by the
Underwriters herein (after giving effect to the deduction, if any, for Contract
Securities (as hereinafter defined)). The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the Delayed Delivery
Contracts (as hereinafter defined).
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the party which
signs the Underwriting Agreement as manager (the "Manager") as compensation, for
the accounts
3
<PAGE>
of the Underwriters, the fee set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
with respect to the validity or their performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
The Company may specify in the Underwriting Agreement applicable to
any Firm Securities that the Company grants to the Underwriters the right (an
"Overallotment Option") to purchase at their election up to the number of
Securities (the "Optional Securities") set forth in the Underwriting Agreement.
Upon written notice from the Manager given to the Company not more than 30 days
subsequent to the date of the initial offering of the Securities, the
Underwriters may purchase all or less than all of the Optional Securities, which
shall be at the purchase price per Security to be paid for the Firm Securities.
Such Optional Securities shall be purchased for the account of each Underwriter
in the same
4
<PAGE>
proportion as the principal amount of Firm Securities set forth opposite such
Underwriter's name bears to the aggregate principal amount of Firm Securities
(subject to adjustment by the Manager to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be surrendered and terminated at any time
upon notice by the Manager to the Company.
V.
Payment for the Underwriters' Securities shall be made by wire
transfer or certified or official bank check or checks payable to the order of
the Company in New York Clearing House or similar next day funds at the time
and place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery. For the purpose of expediting the checking and packaging of the
Underwriters' Securities, such Underwriters' Securities shall be available for
inspection by the Manager not later than 2:00 P.M., New York City time, on the
business day prior to the Closing Date (as hereinafter defined). The time and
date of such payment and delivery with respect to the Firm Securities is herein
referred to as the "First Closing Date", and with respect to the Optional
Securities, if any, is herein referred to as the "Second Closing Date," which
may be the First Closing Date (the First Closing Date and the Second Closing
Date, if any, being sometimes referred to herein as a "Closing Date").
VI.
The several obligations of the Underwriters to purchase and pay for
the Firm Securities on the First Closing Date and the Optional Securities on the
Second Closing Date are subject to the following conditions:
5
<PAGE>
(a) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on such Closing Date,
and the Company shall have complied with its agreements hereunder.
(b) The Prospectus as amended or supplemented in relation to the
Underwriters' Securities shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and regulations under the Act. No stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Underwriters' satisfaction; and there shall have been
no material adverse change in the condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, or in the earnings or business
affairs of the Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, from that set forth in the
Registration Statement and the Prospectus.
(c) The Company shall have furnished to the Manager on such
Closing Date, a certificate, dated as of such Closing Date, of an authorized
executive officer of the Company stating that:
(i) The representations, warranties and agreements of the
Company herein are true and correct in all material respects as of such
Closing Date; the Company has complied in all material respects with its
agreements contained herein; and the conditions set forth in clause (b)
above have been fulfilled; and
(ii) Such officer has carefully examined the Registration
Statement and Prospectus and, in such officer's opinion, (A) as of the date
of the Prospectus, (1) the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (2) the Prospectus did not include an untrue statement of a
material fact or omit
6
<PAGE>
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (B) since the date of the
Prospectus, no event has occurred which should have been set forth in a
supplement to or amendment of the Prospectus which has not been set forth
in such a supplement or amendment.
(d) The Manager shall have received on such Closing Date an
opinion of the counsel for the Company, dated as of such Closing Date, in
substantially the form set forth as Exhibit A.
(e) The Manager shall have received on such Closing Date an
opinion of the counsel for the Underwriters, dated as of such Closing Date, in
substantially the form set forth as Exhibit B and Exhibit C.
(f) The Manager shall have received on such Closing Date, a
letter dated as of such Closing Date, in form and substance satisfactory to the
Manager, from Arthur Andersen & Co., independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus and with respect to certain changes
since the date of such financial statements and financial information.
(g)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, and (ii)
since the respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affect-
7
<PAGE>
ing the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the effect
of which, in any such case described in clause (i) or (ii), is, in the sole
judgment of the Manager, so material and adverse that proceeding with the public
offering or the delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented would be
impracticable.
(h) On or after the date of the Pricing Agreement relating to
the Offered Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the Act or any public announcement that
any such organization has under surveillance or review its rating of any debt
securities of the Company (other than an announcement with positive implications
of a possible upgrading, and no implication of possible downgrading, of such
rating) and (ii) no suspension or material limitation on trading in securities
generally on the New York Stock Exchange or in any securities of the Company on
any exchange or in the over-the-counter market shall have occurred.
VII.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, as many copies of
the Registration Statement, only one of which need include exhibits and
materials, if any, incorporated by reference therein, as the Manager may
reasonably request and, during the period mentioned in clause (c) below, as many
copies of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto as the Manager may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect
8
<PAGE>
to the Registration Statement or Prospectus shall include all documents filed by
the Company with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which are deemed to be incorporated by reference in the Prospectus.
(b) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Offered Securities in the form approved by the
Manager and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second day following the
execution and delivery of the Underwriting Agreement relating to the applicable
Offered Securities, and before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to promptly
advise and furnish the Manager with a copy of each such proposed amendment or
supplement.
(c) If, during such period after the commencement of the public
offering of the Offered Securities that counsel for the Underwriters is of the
opinion that the Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the Prospectus as then
amended or supplemented would, in the opinion of Underwriters' counsel, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, or if, in the opinion of
Underwriters' counsel, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith at the Company's own expense, to amend or to
supplement the Prospectus and to furnish such amendment or supplement to the
Underwriters, so as to correct such statement or omission or effect such
compliance.
(d) Endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate.
9
<PAGE>
(e) To make generally available to the Company's security
holders as soon as practicable, but no later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earnings
statement, which shall satisfy the provisions of Section 11(a) of the Act and
the rules and regulations thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of (i) the date of notice
to the Company by the Manager of the termination of trading restrictions, if
any, with respect to the Offered Securities imposed by any agreement among
Underwriters or (ii) the Closing Date, not to offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
the Offered Securities, without the prior written consent of the Manager.
(g) To advise the Manager promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the Offered
Securities becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement or to
any Prospectus (insofar as the amendment or supplement relates to or covers the
Offered Securities), (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order directed
to any Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any Prospectus
(insofar as any such issuance or challenge relates to or covers the Offered
Securities), (iv) of receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose and
(v) of the happening of any event which makes untrue any statement of a material
fact made in the Registration Statement or any Prospectus or which requires the
making of a change in the Registration Statement or any Prospectus in order to
make any material statement therein not misleading (insofar as the Registration
Statement or Prospectus relates to or covers the Offered Securities).
10
<PAGE>
(h) If, during the period referred to in clause (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time.
(i) To pay the costs of printing this Agreement and the Delayed
Delivery Contracts, if any, the fees paid to rating agencies in connection with
the rating of the Securities, including the Offered Securities and all other
costs and expenses incident to the performance of the Company's obligations
under this Agreement; provided that, except as provided otherwise herein, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Offered Securities which
they may sell, the expenses incident to the performance of the Company's
obligations under this Agreement, and the expenses of advertising any offering
of the Offered Securities made by the Underwriters.
(j) Until the termination of the offering of the Offered
Securities, to file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act in a timely manner.
VIII.
The Company represents and warrants to each Underwriter as follows:
(a) The Registration Statement has become effective; (ii) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder and, except as otherwise disclosed to the Manager, no
order directed to any document incorporated by reference in the Prospectus has
been issued, (iii) each part of the Registration Statement (including the
documents incorporated by reference therein), filed with the Commission pursuant
to the Act relating to the Securities, when such part became effective, did not
contain any untrue statement of a
11
<PAGE>
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iv) each preliminary
prospectus, if any, filed pursuant to Rule 424 under the Act complied when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder, (v) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Act and the applicable rules and regulations thereunder, (vi)
the applicable Indenture relating to the Offered Securities complies with the
requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations thereunder, and (vii) (1) the
Registration Statement does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (2) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, except that these representations and warranties do not
apply to statements or omissions in the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the Company in
writing by any Underwriter through the Manager expressly for use therein.
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective date as to
the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished to the
12
<PAGE>
Company by an Underwriter of Offered Securities directly or through the Manager
expressly for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any agreement,
indenture, mortgage, lease, note or instrument, which violation or default would
have a material adverse effect on the assets, operations, condition (financial
and otherwise) or the prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"); the execution, delivery and performance of
this Agreement and any Delayed Delivery Contracts and compliance by the Company
with the provisions of the Offered Securities and the Indenture will not (1)
conflict with, result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate charter or
by-laws of the Company or any of its subsidiaries or any order, rule or
regulation of any court or governmental agency having jurisdiction over the
Company, any of its subsidiaries or their respective properties or (2) have a
Material Adverse Effect; and except as required by the Act, the Trust Indenture
Act, the Exchange Act and applicable state securities or Blue Sky laws, no
consent, authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance by
the Company of this Agreement, the Delayed Delivery Contracts, if any, or the
Indenture.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, since the dates as of which information is given
in the Registration Statement and the Prospectus, no Material Adverse Effect has
occurred.
(e) Each of the accountants whose reports are incorporated by
reference in the Prospectus are independent public accountants as required by
the Act and the applicable rules and regulations thereunder.
13
<PAGE>
(f) On the applicable Closing Date (i) the Indenture will have
been validly authorized, executed and delivered by the Company and will
constitute the legally binding obligation of the Company enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles, (ii) the
Offered Securities will have been validly authorized and, upon payment therefor
as provided in this Agreement, will be validly issued and outstanding, and will
constitute legally binding obligations of the Company entitled to the benefits
of the Indenture, (iii) the Delayed Delivery Contracts, if any, will have been
validly authorized, executed and delivered and will constitute legally binding
obligations of the Company, and (iv) the Offered Securities and the Indenture
will conform to the descriptions thereof contained in the Prospectus.
(g) The Company and each of its subsidiaries have been duly
incorporated, are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
in good standing as foreign corporations in each jurisdiction in which their
respective ownership of property or the conduct of their respective business
requires such qualification and where the failure to be so qualified would have
a Material Adverse Effect, and have corporate power and authority necessary to
own or hold their respective properties and to conduct the businesses in which
they are engaged.
(h) Except as described in each Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which might
result in any Material Adverse Effect or which is required to be disclosed in
the Registration Statement.
(i) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
materi-
14
<PAGE>
al fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein in light of the circumstances
under which they were made not misleading; and any further documents so filed
and incorporated by reference in the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished to the Company by an Underwriter of Offered Securities directly or
through the Manager expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
(j) The audited financial statements filed as part of or
incorporated by reference in the Registration Statement or Prospectus present,
or (in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made) will
present fairly, at all times during the period specified in clause (c) of
Article VII hereof, the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation is
being made) will be at all times during the period specified in clause (c) of
Article VII hereof, prepared in conformity with generally accepted accounting
principles.
(k) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the rules
and regulations thereunder, or which were required to be filed as exhibits to
any document incorporated by refer-
15
<PAGE>
ence in any Prospectus by the Exchange Act or the rules and regulations
thereunder, which have not been filed as exhibits to the Registration Statement
or to such document or incorporated therein by reference as permitted by such
rules and regulations.
IX.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus as amended or
supplemented (if used within the period set forth in clause (c) of Article VII
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
that such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity with respect to preliminary prospectuses shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities if such untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus (excluding
documents incorporated by reference) has not been furnished to such person at or
prior to the written confirmation of the sale of such Offered Securities to such
person.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
control-
16
<PAGE>
ling the Company to the same extent as the foregoing indemnity from the Company
to each Underwriter, but only with reference to information furnished in writing
by such Underwriter through the Manager expressly for use in the Registration
Statement, any preliminary prospectus or the Prospectus as amended or
supplemented.
If any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding;
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated
in writing by the Manager in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article IX is unavailable
to an indemnified party
17
<PAGE>
under the second or third paragraphs hereof or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same proportion as the total net
proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company on the one hand and of the Underwriters on the other 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 or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Article IX were determined by pro rata allocation
or by any other method of allocation which does not take account of the
consideration referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article IX, no Underwriter shall be
18
<PAGE>
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten and distributed to the public
by such Underwriter were offered to the public exceeds the amount of any damages
which such Underwriter has 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 Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article IX are several, in proportion to the respective
principal amounts of Offered Securities purchased by each of such Underwriters,
and not joint.
The indemnity and contribution agreements contained in this Article IX
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Underwriter or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its directors or officers or any person controlling the Company
and (iii) acceptance of and payment for any of the Offered Securities.
X.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) trading in the common
stock of the Company has been suspended, (iii) a general moratorium on
commercial banking activities in the State of New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Manager, impracticable to proceed with the
public offering or delivery of the Offered Securities on the
19
<PAGE>
terms and in the manner contemplated in the Prospectus as amended or
supplemented.
XI.
If any one or more of the Underwriters shall fail or refuse to
purchase Offered Securities which it or they have agreed to purchase hereunder,
and the aggregate principal amount of Offered Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate principal amount of the Underwriters'
Securities, the other Underwriters shall be obligated severally in the
proportions which the amounts of Offered Securities set forth opposite their
names in the Underwriting Agreement bear to the aggregate principal amount of
Offered Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Underwriters' Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase; provided that in no event
shall the principal amount of Offered Securities which any Underwriter has
agreed to purchase pursuant to the Underwriting Agreement be increased pursuant
to this paragraph by an amount in excess of one-ninth of such principal amount
of Offered Securities without the written consent of such Underwriter. In any
such case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate principal amount of Offered Securities, with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Underwriters' Securities, and arrangements satisfactory to the Manager and the
Company for the purchase of such Offered Securities are not made within 36 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter or of the Company. Any action taken under
this paragraph shall not relieve any defaulting Underwriter from liabil-
20
<PAGE>
ity in respect of any default of such Underwriter under this Agreement.
XII.
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Manager as se forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Article IX hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the Manager upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel)
21
<PAGE>
reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
22
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed as of the __ day of ________, 1994.
INTERNATIONAL PAPER COMPANY
By: ________________________
[Seal]
Attest:
______________________________
23
<PAGE>
EXHIBIT A
[FORM OF OPINION OF THE ASSOCIATE GENERAL COUNSEL
OF THE COMPANY]
___________, 199_
[Underwriters, c/o]
[Name and Address of Manager]
Gentlemen:
This opinion is furnished pursuant to Paragraph (d) of Article VI of
the Underwriting Agreement Standard Provisions (Debt) incorporated by reference
in the Underwriting Agreement dated ____________ __, 199_ (the "Underwriting
Agreement") between you, as representative of the several underwriters (the
"Underwriters") named therein, and International Paper Company, a New York
corporation (the "Company"), relating to the sale by the Company and the
purchase by the Underwriters, severally, of $______ principal amount of [name of
debt security] (the "Securities") of the Company to be issued pursuant to the
terms of the indenture (the "Indenture"), dated as of April 1, 1994, between
the Company and The Chase Manhattan Bank, N.A., as trustee (the "Trustee").
Capitalized terms used but not defined in this letter are defined in the
Underwriting Agreement and are used herein with the same meanings as ascribed to
them in the Underwriting Agreement.
I have examined an executed copy of the Underwriting Agreement, the
Indenture [and of certain delayed delivery contracts substantially in the form
of Schedule I attached to the Underwriting Agreement (the "Delayed
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
Delivery Contracts")]. I have examined originals or copies, certified or
otherwise identified to my satisfaction, of such other documents, corporate
records, certificates of public officials and other instruments as I have deemed
necessary or advisable for the purpose of rendering this opinion, including
those relating to the authorization, execution and delivery by the Company of
the Indenture and the Underwriting Agreement [and any Delay Delivery Contracts],
and the authorization, issuance and sale of the Securities by the Company.
I have participated in the preparation of the Company's registration
statement on Form S-3 (File No. 33-____) [and any amendment thereto] (including
documents incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) filed with the Securities and Exchange Commission
(the "Commission") pursuant to the provisions of the Securities Act of 1933, as
amended (the "Act"). In addition, I have reviewed evidence that the
registration statement [as amended] was declared effective under the Act and
that the Indenture was qualified under the Trust Indenture Act of 1939, as
amended, (the "Trust Indenture Act") on __________, 1994. The registration
statement (including the Incorporated Documents) as amended to the date of the
Underwriting Agreement is hereinafter referred to as the "Registration
Statement", and the prospectus included in the Registration Statement as
supplemented by the prospectus supplement specifically relating to the
Securities is hereinafter referred to as the "Prospectus".
Based on the foregoing, I am of the opinion that:
(i) the Company has been duly incorporated, is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership of property or the conduct of its businesses requires such
<PAGE>
[Underwriters, c/o]
[Date]
Page 3
qualification and where the failure to be so qualified would result in a
material adverse effect on the financial condition or operation or
prospects of the Company and its subsidiaries taken as a whole;
(ii) the Indenture has been duly authorized, executed
and delivered by the Company and constitutes a legally binding
obligation of the Company enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles and has been duly
qualified under the Trust Indenture Act;
(iii) the Securities have been duly authorized, and,
when executed, authenticated and issued in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters [or by institutional investors, if any, pursuant to
Delayed Delivery Contracts] 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
creditors' rights and to general equity principles;
(iv) the Underwriting Agreement has been validly
authorized, executed and delivered by the Company and constitutes a
legally binding obligation of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, except
as rights to indemnity thereunder may be limited under applicable law;
<PAGE>
[Underwriters, c/o]
[Date]
Page 4
(v) [the Delayed Delivery Contracts, if any, have been
validly authorized, executed and delivered by the Company and
constitute 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 creditors' rights and to
general equity principles;]
(vi) the execution and delivery and performance of the
Indenture [and Delayed Delivery Contracts] and the Underwriting
Agreement by the Company and sale of the Offered Securities as
provided in the Underwriting Agreement will not contravene any
provision of applicable law or the Restated Certificate of
Incorporation or By-laws of the Company or, to my knowledge after
reasonably inquiry, any agreement, indenture or instrument binding
upon the Company, and no consent, approval or authorization of any
governmental agency or authority (other than in connection or in
compliance with the provisions of any state securities or Blue Sky
laws, as to which I express no opinion) is required for the
performance by the Company of the Underwriting Agreement;
(vii) [the [shares of common stock, par value $1.00 per
share (the "Common Stock")], [or set forth title of other securities
issuable upon conversion] of the Company issuable upon [conversion]
[exchange] of the Offered Securities in accordance with the terms
thereof have been duly authorized and reserved for issuance upon such
[conversion] [exchange], and, when issued and delivered upon such
[conversion] [exchange], will be duly authorized and validly issued
and will be fully paid and non-assessable; the stockholders of the
Company have no preemptive rights with respect to such [Common Stock]
issuable upon [conversion] [exchange] of such Offered Securities; and
such [shares of
<PAGE>
[Underwriters, c/o]
[Date]
Page 5
Common Stock] conform in all material respects to the description of the
[Common Stock] contained in the Registration Statement and the Prospectus;]
(viii) I do not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of the
Underwriting Agreement or is required to be disclosed in the
Registration Statement or Prospectus which is not disclosed and
correctly summarized therein;
(ix) to the best of my knowledge, neither the Company
nor its subsidiaries are in violation in any material respect of their
corporate charters or by-laws, or in default in any material respect
under any agreement, indenture or instrument material to the Company
and its subsidiaries taken as a whole;
(x) the Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the sale of the Offered
Securities (other than the financial statements and related schedules
therein, as to which I express no opinion) comply as to form in all
material respects with the requirements of the Act and the Trust
Indenture Act and the rules and regulations thereunder; and I do not
know of any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character required to
be filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement
or the Prospectus as amended or supplemented which are
<PAGE>
[Underwriters, c/o]
[Date]
Page 6
not filed or incorporated by reference or described as required; and
(xi) documents incorporated by reference in the
Registration Statement and the Prospectus, when filed, complied, when
so filed, as to form in all material respects with the Securities
Exchange Act of 1934, as amended, and the applicable rules and
regulations of the Commission thereunder.
I have not conducted any independent investigation with regard to the
information set forth in the Registration Statement or Prospectus (except for
any investigation which I deemed necessary to render the opinions set forth
previously in this letter). I have, however, participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants of the Company, your representatives and
representatives of Skadden, Arps, Slate, Meagher & Flom, counsel for the
Underwriters, at which the contents of the Registration Statement and
Prospectus, including the documents incorporated by reference therein, and
related matters were discussed. On the basis of the foregoing, I advise you
that I have no reason to believe that (except for the financial statements
therein, as to which I express no opinion) the Registration Statement, the
Prospectus and documents incorporated by reference in the Registration Statement
on the date of the Underwriting Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for the financial statements therein, as to which I express
no opinion) as of the date hereof contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
I note that the availability of specific enforcement, injunctive
relief or any equitable remedy is subject to the discretion of the court before
which any
<PAGE>
[Underwriters, c/o]
[Date]
Page 7
proceedings therefor may be brought and that certain courts may enforce the
rights of a holder of the Offered Securities only in circumstances and in a
manner in which it is equitable and commercially reasonable to do so.
Very truly yours,
<PAGE>
EXHIBIT B
[FORM OF OPINION OF THE COUNSEL FOR THE UNDERWRITERS]
__________, 199_
[Name of Manager
and the other Several Underwriters
named in the Underwriting Agreement]
[Address]
Dear Sirs:
In connection with the several purchases today by you and the other
Underwriters named in the Underwriting Agreement, dated ____________, 19__ (the
"Underwriting Agreement"), between International Paper Company, a New York
corporation (the "Company"), and you, as Manager of the several Underwriters
named therein (the "Underwriters"), of _______________ aggregate principal
amount of the Company's ___________ (the "Offered Securities") issued pursuant
to the Indenture, dated as of April 1, 1994, as amended and supplemented (the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., as
trustee (the "Trustee"), we, as counsel for the several Underwriters, have
examined such corporate records, certificates and other documents, and such
questions of law, as we have considered necessary or appropriate for the
purposes of this opinion. Upon the basis of such examination, we advise you
that, in our opinion:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of New York.
2. The Indenture has been duly authorized, executed and delivered by
the Company, and duly qualified under the Trust Indenture Act of 1939, as
amended; the Offered Securities [(other than Contract Securities)] have been
duly authorized, executed, authenticated, issued and delivered; [the Contract
Securities (when duly executed, authenticated, issued and delivered to, and paid
for by, the respective purchasers thereof under the Delayed Delivery Contracts),
constitute valid and legally binding
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
obligations of the Company, enforceable in accordance with their terms subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.]
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
In rendering our opinion, we have, with your approval, relied as to
certain matters on information obtained from public officials, officers of the
Company and other sources believed by us to be responsible, and we have assumed
that the Indenture has been duly authorized, executed and delivered by the
Trustee, that the Offered Securities conform to the specimen thereof examined by
us, that the Trustee's certificates of authentication of the Offered Securities
have been manually signed by one of the Trustee's authorized officers, and that
the signatures on all documents examined by us are genuine, assumptions which we
have not independently verified.
Very truly yours,
<PAGE>
EXHIBIT C
__________, 199_
[Name of Manager
and the other several Underwriters
named in the Underwriting Agreement]
[Address]
Dear Sirs:
This is with reference to the registration under the Securities Act of
1933 (the "Act") of __________ principal amount of ________ (the "Offered
Securities") of International Paper Company (the "Company"). The Registration
Statement was filed on Form S-3 under the Act, and accordingly the Registration
Statement and the Prospectus dated __________, 199_, filed pursuant to Rule
424(b) under the Act (the "Prospectus"), do not necessarily contain a current
description of the Company's business and affairs since, pursuant to that Form,
the Registration Statement and the Prospectus incorporate by reference certain
documents filed with the Securities and Exchange Commission (the "Commission")
which contain information as of various dates. When the Registration Statement
was declared effective by the Commission, the form of prospectus included
therein omitted certain information in reliance upon Rule 430 under the Act.
Such information is contained in the Prospectus and, as provided in Rule 430A,
is deemed to be a part of the Registration Statement as of the time it was
declared effective.
In accordance with our understanding with you as to the scope of our
services under the circumstances applicable to the offering of the Offered
Securities, we reviewed the Registration Statement and the Prospectus,
participated in discussions with your representatives and those of the Company,
its counsel and its accountants, and advised you as to the requirements of the
Act and the applicable rules and regulations thereunder. On the basis of the
information that we gained in the course of the performance of the services
referred to above, considered in the light of our understanding of the
applicable law (including the requirements of Form S-3 and the
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
character of the prospectus contemplated thereby) and the experience we have
gained through our practice under the Act, we advised you and now confirm that,
in our opinion, the Registration Statement, as of its effective date, and the
Prospectus, as of the date of the Prospectus, appeared on their face to be
appropriately responsive, in all material respects, to the requirements of the
Act, the Trust Indenture Act of 1939 and the applicable rules and regulations of
the Commission thereunder. Further, nothing that came to our attention in the
course of such review has caused us to believe that the Registration Statement,
as of its effective date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, on the date
of the Prospectus, contained any untrue statement of a material fact or omitted
to state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for those made under the captions
_______________ and ______________ in the Prospectus insofar as they relate to
provisions of documents therein described. Also, we do not express any opinion
or belief as to the financial statements or other financial data contained in
the Registration Statement or the Prospectus, or as to the statement of the
eligibility and qualification of the Trustee under the Indenture under which the
Offered Securities are being issued.
<PAGE>
[Underwriters, c/o]
[Date]
Page 3
This letter is furnished by us as counsel for the several Underwriters
to you as Manager of the several Underwriters and is solely for the benefit of
the several Underwriters.
Very truly yours,
<PAGE>
UNDERWRITING AGREEMENT
_________, 19__
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Dear Sirs:
We understand that International Paper Company, a New York corporation
(the "Company"), proposes to issue and sell $___________ aggregate principal
amount of ___________________________ (the "Offered Securities"). Subject to
the terms and conditions set forth or incorporated by reference herein, the
Company hereby agrees to sell and ______________________ [, on behalf of the
several Underwriters named in Schedule A hereto and for their respective
accounts] (the "Underwriters") agree[s] to purchase the Offered Securities on
the following terms:
Title:
Principal Amount: $________________.
Indenture: Indenture, dated _____________, 199_, between the Company
and ____________ as Trustee.
Interest: [__% per annum, from ____________, 199_, payable
semiannually on ___________ and ______________, commencing _____________, 199_,
to holders of record on the preceding ________________ or _______________, as
the case may be.] [Zero coupon.]
Interest Payment Dates: [The Offered Securities are redeemable at the
option of the Holders in the event of a Change in Control.]
Maturity:
Redemption Provisions:
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
Conversion Rights:
Sinking Fund:
Defeasance Provisions:
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be
________________, 199_. Underwriters' fee is ___% of the principal amount of
the Contract Securities.]
[Other Terms]
Purchase Price: ___________% of principal amount, plus accrued
interest[, if any,] from ___________ __, 199_ [and accrued amortization, if any,
from _______________ __, 199_].
Expected Reoffering Price: ___% of principal amount, subject to
change by the undersigned.
Closing: [10:00 A.M.,] New York City time, on _______________ __,
199_, at the offices of [Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue,
New York, New York], in New York Clearing House or similar next day funds.
[Name[s] and Address[es] of Manager[s]:]
The respective principal amounts of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
[IF APPROPRIATE, INSERT -- It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the
aggregate principal amount to be purchased by the Underwriters listed in
Schedule A hereto by the aggregate principal amount to be purchased by such
additional Underwriters.]
All the provisions contained in the document entitled International
Paper Company Underwriting Agreement Standard Provisions (Debt), a copy of which
you have
<PAGE>
[Underwriters, c/o]
[Date]
Page 3
previously received, except to the extent otherwise provided herein, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein.
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us by telecopy.
Very truly yours,
[Insert name(s) of Manager(s) or
Underwriter(s)] [On behalf of -- themselves
-- itself -- and as Manager(s) of the
several] [As] Underwriter(s)
By:_______________________
Title:
Accepted as of the date hereof:
INTERNATIONAL PAPER COMPANY
By:___________________________
Title:
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
<S> <C>
Principal
Underwriter Amount
----------- ---------
Manager. . . . . . . . . . . . . . . . . . $
---------
Total . . . . . . . . . . $
---------
---------
</TABLE>
<PAGE>
SCHEDULE I
DELAYED DELIVERY CONTRACT
________ __, 199_
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Attention:_______________
Gentlemen:
The undersigned hereby agrees to purchase from International Paper
Company, a New York corporation (the "Company"), and the Company agrees to sell
to the undersigned, [IF ONE DELAYED CLOSING, INSERT -- as of the date hereof,
for delivery on ________, 199_ (the "Delivery Date"),]
$_______________
principal amount of the Company's [INSERT TITLE OF DEBT SECURITIES] (the
"Securities"), offered by the Company's Prospectus dated ________, 199_ and a
Prospective Supplement dated ____________, 199_ relating thereto, receipt of
copies of which is hereby acknowledged, at ___% of the principal amount thereof
plus accrued interest, if any, [and accrued amortization, if any,] and on the
further terms and conditions set forth in this Delayed Delivery Contract (the
"Contract").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the principal amounts
set forth below:
<PAGE>
Delivery Date Principal Amount
------------- ----------------
_____________ $_______________
_____________ $_______________
Each of such delivery dates is hereinafter referred to as a "Delivery Date".]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by wire transfer or by certified or official bank check in New York
Clearing House or similar next day funds at the office of _________________ at
_____ A.M., New York City time, on [the] [such] Delivery Date upon delivery to
the undersigned of the Securities then to be purchased by the undersigned in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic or such
other electronic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice to
such
2
<PAGE>
effect, accompanied by a copy of the opinion of counsel for the Company deliv-
ered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_________________________________
(Name of Purchaser)
By:______________________________
(Authorized Signature)
Name:
Title:
______________________________
(Address of Purchaser)
Accepted, as of the above date.
INTERNATIONAL PAPER COMPANY
By:______________________
Name:
Title:
3
<PAGE>
Exhibit 1.2
INTERNATIONAL PAPER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (PREFERRED STOCK)
<PAGE>
From time to time, International Paper Company, a New York corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities (the "Offered Securities") to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The Company proposes to issue from time to time shares of its serial
preferred stock, $1.00 par value (the "Preferred Stock Shares") or Depositary
Shares (as defined below). If the Prospectus (as defined below) so provides,
the Preferred Stock Shares shall be deposited by the Company against delivery of
receipts (the "Depositary Receipts") to be issued by the bank or trust company
named in the Prospectus as the depositary (such bank or trust company being
referred to herein as the "Depositary") under a Deposit Agreement, to be dated
as of the date specified in the Prospectus (the "Deposit Agreement"), among the
Company, the Depositary and the holders from time to time of the Depositary
Receipts issued thereunder. Such Depositary Receipts will evidence Depositary
Shares (the "Depositary Shares") and each Depositary Share will represent the
fractional interest in a Preferred Stock Share specified in the Prospectus. The
Preferred Stock Shares or the Depositary Shares, as the case may be, are herein
referred to as the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). The term "Registration Statement" means the
2
<PAGE>
registration statement as amended to the date of the Underwriting Agreement.
The term "Basic Prospectus" means the prospectus included in the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement (other than a preliminary prospectus supplement)
specifically relating to the Offered Securities as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term preliminary prospectus
means a preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. As used herein, the terms
"Registration Statement," "Basic Prospectus," "Prospectus" and "preliminary
prospectus" shall include, in each case, the material, if any, incorporated by
reference therein.
The Offered Securities shall include the Firm Securities (the "Firm
Securities") which the Underwriters have agreed to purchase on the Closing Date
together with any Optional Securities (as hereinafter defined) which the
Underwriters may elect to purchase pursuant to Article IV hereof. The term
"Underwriters' Securities" means the Offered Securities to be purchased by the
Underwriters herein (after giving effect to the deduction, if any, for Contract
Securities (as hereinafter defined). The term "Contract Securities" means the
Offered Securities, if any, to be purchased pursuant to the Delayed Delivery
Contracts (as hereinafter defined)).
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the party which
signs the Underwriting Agreement as manager (the "Manager") as compensation, for
the accounts
3
<PAGE>
of the Underwriters, the fee set forth in the Underwriting Agreement in respect
of the Contract Securities. The Underwriters will not have any responsibility
with respect to the validity or their performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the number of Offered Securities set forth
opposite each Underwriter's name in the Underwriting Agreement, except to the
extent that the Manager determines that such reduction shall be otherwise and so
advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
The Company may specify in the Underwriting Agreement applicable to
any Firm Securities that the Company grants to the Underwriters the right (an
"Over-allotment Option") to purchase at their election up to the number of
Securities (the "Optional Securities") set forth in the Underwriting Agreement.
Upon written notice from the Manager given to the Company not more than 30 days
subsequent to the date of the initial offering of the Securities, the
Underwriters may purchase all or less than all of the Optional Securities, which
shall be at the purchase price per Security to be paid for the Firm Securities.
Such Optional Securities shall be purchased for the account of each Underwriter
in the same
4
<PAGE>
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by the Manager to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be surrendered and terminated at any time
upon notice by the Manager to the Company.
V.
Payment for the Underwriters' Securities shall be made by wire
transfer or by certified or official bank check or checks payable to the order
of the Company in New York Clearing House or similar next day funds at the time
and place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery. For the purpose of expediting the checking and packaging of the
Underwriters' Securities, such Underwriters' Securities shall be available for
inspection by the Manager not later than 2:00 P.M., New York City time, on the
business day prior to the Closing Date (as hereinafter defined). The time and
date of such payment and delivery with respect to the Firm Securities is herein
referred to as the "First Closing Date", and with respect to the Optional
Securities, if any, is herein referred to as the "Second Closing Date," which
may be the First Closing Date (the First Closing Date and the Second Closing
Date, if any, being sometimes referred to herein as a "Closing Date").
VI.
The several obligations of the Underwriters to purchase and pay for
the Firm Securities on the First Closing Date and the Optional Securities on the
Second Closing Date are subject to the following conditions:
5
<PAGE>
(a) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on such Closing Date,
and the Company shall have complied with its agreements hereunder.
(b) The Prospectus as amended or supplemented in relation to the
Underwriters' Securities shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and regulations under the Act. No stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Underwriters' satisfaction; and there shall have been
no material adverse change in the condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, or in the earnings or business
affairs of the Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, from that set forth in the
Registration Statement and the Prospectus.
(c) The Company shall have furnished to the Manager, on such
Closing Date, a certificate, dated as of such Closing Date, of an authorized
executive officer of the Company stating that:
(i) The representations, warranties and agreements of the
Company herein are true and correct in all material respects as of such
Closing Date; the Company has complied in all material respects with its
agreements contained herein; and the conditions set forth in clause (b)
above have been fulfilled; and
(ii) Such officer has carefully examined the Registration
Statement and Prospectus and, in such officer's opinion, (A) as of the date
of the Prospectus, (1) the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (2) the Prospectus did not include an untrue statement of a
material fact or omit
6
<PAGE>
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (B) since the date of the
Prospectus, no event has occurred which should have been set forth in a
supplement to or amendment of the Prospectus which has not been set forth
in such a supplement or amendment.
(d) The Manager shall have received, on such Closing Date, an
opinion of the counsel for the Company, dated as of such Closing Date, in
substantially the form set forth as Exhibit A.
(e) The Manager shall have received, on such Closing Date, an
opinion of the counsel for the Underwriters, dated as of such Closing Date, in
substantially the form set forth as Exhibit B and Exhibit C.
(f) The Manager shall have received, on such Closing Date, a
letter dated as of such Closing Date, in form and substance satisfactory to the
Manager, from Arthur Andersen & Co., independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus and with respect to certain changes
since the date of such financial statements and financial information.
(g)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, and (ii)
since the respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affect-
7
<PAGE>
ing the general affairs management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the effect
of which, in any such case described in clause (i) or (ii), is, in the sole
judgment of the Manager, so material and adverse that proceeding with the public
offering or the delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented would be
impracticable.
(h) On or after the date of the Pricing Agreement relating to
the Offered Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization," as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of possible downgrading, of such rating) and (ii) no suspension or
material limitation on trading in securities generally on the New York Stock
Exchange or of any securities of the Company on any exchange or in the over-the-
counter market shall have occurred.
VII.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, as many copies of
the Registration Statement, only one of which need include exhibits and
materials, if any, incorporated by reference therein, as the Manager may
reasonably request and, during the period mentioned in clause (c) below, as many
copies of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto as the Manager may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect
8
<PAGE>
to the Registration Statement or Prospectus shall include all documents filed by
the Company with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which are deemed to be incorporated by reference in the Prospectus.
(b) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Offered Securities in the form approved by the
Manager and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second day following the
execution and delivery of the Underwriting Agreement relating to the applicable
Offered Securities, and before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to promptly
advise and furnish the Manager with a copy of each such proposed amendment or
supplement.
(c) If, during such period after the commencement of the public
offering of the Offered Securities that counsel for the Underwriters is of the
opinion that the Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the Prospectus as then
amended or supplemented would, in the opinion of Underwriters' counsel, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, or if, in the opinion of
Underwriters' counsel, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith at the Company's own expense, to amend or to
supplement the Prospectus and to furnish such amendment or supplement to the
Underwriters, so as to correct such statement or omission or effect such
compliance.
(d) Endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate.
9
<PAGE>
(e) To make generally available to the Company's security
holders as soon as practicable, but no later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earnings
statement, which shall satisfy the provisions of Section 11(a) of the Act and
the rules and regulations thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of (i) the date of notice
to the Company by the Manager of the termination of trading restrictions, if
any, with respect to the Offered Securities imposed by any agreement among
Underwriters or (ii) the applicable Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any securities of the Company substantially
similar to the Offered Securities or Securities convertible into or exercisable
or exchangeable for securities of the Company which are substantially similar to
the Offered Securities (except issuances upon the conversion of securities or
the exercise of warrants outstanding on the date of the Underwriting Agreement),
without the prior written consent of the Manager.
(g) To advise the Manager promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the Offered
Securities becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement or to
any Prospectus (insofar as the amendment or supplement relates to or covers the
Offered Securities), (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order directed
to any Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any Prospectus
(insofar as any such issuance or challenge relates to or covers the Offered
Securities), (iv) of receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose and
(v) of the happening of any event which makes untrue any statement of a material
fact made in the Registration Statement or any
10
<PAGE>
Prospectus or which requires the making of a change in the Registration
Statement or any Prospectus in order to make any material statement therein not
misleading (insofar as the Registration Statement or Prospectus relates to or
covers the Offered Securities).
(h) If, during the period referred to in clause (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time.
(i) To pay the costs of printing this Agreement and the Delayed
Delivery Contracts, if any, the fees paid to rating agencies in connection with
the rating of the Securities, including the Offered Securities, and all other
costs and expenses incident to the performance of the Company's obligations
under this Agreement; provided that, except as provided otherwise herein, the
Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Offered Securities which
they may sell, the expenses incident to the performance of the Company's
obligations under this Agreement, and the expenses of advertising any offering
of the Offered Securities made by the Underwriters.
(j) Until the termination of the offering of the Offered
Securities, to file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act in a timely manner.
VIII.
The Company represents and warrants to each Underwriter as follows:
(a) The Registration Statement has become effective; (ii) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder and, except as otherwise disclosed to the Manager, no
order directed
11
<PAGE>
to any document incorporated by reference in the Prospectus has been issued,
(iii) each part of the Registration Statement (including the documents
incorporated by reference therein), filed with the Commission pursuant to the
Act relating to the Securities, when such part became effective, did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iv) each preliminary prospectus, if any, filed pursuant to Rule 424
under the Act complied when so filed in all material respects with such Act and
the applicable rules and regulations thereunder, (v) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the applicable rules and
regulations thereunder, (vi) (1) the Registration Statement does not contain
and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(2) the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, except
that these representations and warranties do not apply to statements or
omissions in the Registration Statement, any preliminary prospectus or the
Prospectus based upon information furnished to the Company in writing by any
Underwriter through the Manager expressly for use therein.
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
this representation and warranty shall not apply to any state-
12
<PAGE>
ments or omissions made in reliance upon and in conformity with information
furnished to the Company by an Underwriter of Offered Securities directly or
through the Manager expressly for use in the Prospectus as amended or
supplemented relating to such Securities;
(c) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any agreement,
indenture, mortgage, lease, note or instrument, which violation or default would
have a material adverse effect on the assets, operations, condition (financial
and otherwise) or the prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"); the execution, delivery and performance of
this Agreement, the Deposit Agreement, if any, and any Delayed Delivery
Contracts and compliance by the Company with the provisions of the Offered
Securities will not (1) conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company or any of
its subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument, or result in a violation of the corporate
charter or by-laws of the Company or any of its subsidiaries or any order, rule
or regulation of any court or governmental agency having jurisdiction over the
Company, any of its subsidiaries or their respective properties or (2) have a
Material Adverse Effect; and except as required by the Act, the Exchange Act and
applicable state securities or Blue Sky laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is required
for the execution, delivery and performance by the Company of this Agreement,
the Deposit Agreement, if any, or the Delayed Delivery Contracts, if any.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, since the dates as of which information is given
in the Registration Statement and the Prospectus, no Material Adverse Effect has
occurred.
(e) Each of the accountants whose reports are incorporated by
reference in the Prospectus are independent public accountants as required by
the Act and the applicable rules and regulations thereunder.
13
<PAGE>
(f) On the applicable Closing Date, (i) the Offered Securities
will have been validly authorized and, upon payment therefor as provided in this
Agreement, will be validly issued and fully paid and nonassessable and will have
the rights set forth in the Company's Restated Certificate of Incorporation,
including the applicable certificate of designation filed under Section 502 of
the Business Corporation Law of the State of New York and which will have been
timely filed, (ii) the Deposit Agreement in respect of the Depositary Shares, if
any, will have been validly authorized, executed and delivered and will
constitute, a legally binding obligation of the Company, (iii) the Delayed
Delivery Contracts, if any, will have been validly authorized, executed and
delivered and will constitute legally binding obligations of the Company, and
(iv) the Offered Securities and the Deposit Agreement, if any, will conform to
the descriptions thereof contained in the Prospectus.
(g) The Company and each of its subsidiaries have been duly
incorporated, are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
in good standing as foreign corporations in each jurisdiction in which their
respective ownership of property or the conduct of their respective business
requires such qualification and where the failure to be so qualified would have
a Material Adverse Effect, and have the corporate power and authority necessary
to own or hold their respective properties and to conduct the businesses in
which they are engaged.
(h) Except as described in each Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which might
result in any Material Adverse Effect or which is required to be disclosed in
the Registration Statement.
(i) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of
14
<PAGE>
such documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary in order to
make the statements therein in light of the circumstances under which they were
made not misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto, when
such documents become effective or are filed with the Commission, as the case
may be, will conform in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished to the Company by an
Underwriter of Offered Securities directly or through the Manager expressly for
use in the Prospectus as amended or supplemented relating to such Securities.
(j) The audited financial statements filed as part of or
incorporated by reference in the Registration Statement or Prospectus present,
or (in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made) will
present fairly, at all times during the period specified in clause (c) of
Article VII hereof, the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation is
being made) will be at all times during the period specified in clause (c) of
Article VII hereof, prepared in conformity with generally accepted accounting
principles.
(k) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the rules
and regulations thereunder, or which were required to be
15
<PAGE>
filed as exhibits to any document incorporated by reference in any Prospectus by
the Exchange Act or the rules and regulations thereunder, which have not been
filed as exhibits to the Registration Statement or to such document or
incorporated therein by reference as permitted by such rules and regulations.
IX.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus as amended or
supplemented (if used within the period set forth in clause (c) of Article VII
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
that such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity with respect to preliminary prospectuses shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities if such untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus (excluding
documents incorporated by reference) has not been furnished to such person at or
prior to the written confirmation of the sale of such Offered Securities to such
person.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who
16
<PAGE>
sign the Registration Statement and any person controlling the Company to the
same extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to information furnished in writing by such Underwriter
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus as amended or supplemented.
If any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding;
any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the indemnifying party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated
in writing by the Manager in the case of parties indemnified pursuant to the
second preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but, if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
17
<PAGE>
If the indemnification provided for in this Article IX is unavailable
to an indemnified party underthe second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other in connection with the
offering of the Offered Securities shall be deemed to be in the same proportion
as the total net proceeds from the offering of such Offered Securities (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters in respect thereof. The
relative fault of the Company on the one hand and of the Underwriters on the
other 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
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Article IX were determined by pro rata
allocation or by any other method of allocation which does not take account of
the consideration referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or
18
<PAGE>
defending any such action or claim. Notwithstanding the provisions of this
Article IX, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten and distributed to the public by such Underwriter were offered to
the public exceeds the amount of any damages which such Underwriter has
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 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article IX are several, in proportion to the respective number of Offered
Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article IX
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by any Underwriter or on behalf
of any Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its directors or officers or any person controlling the Company
and (iii) acceptance of and payment for any of the Offered Securities.
X.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) trading in the common
stock of the Company has been suspended, (iii) a general moratorium on
commercial banking activities in the State of New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Manager, impracticable to proceed with the
public
19
<PAGE>
offering or delivery of the Offered Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented.
XI.
If any one or more of the Underwriters shall fail or refuse to
purchase Offered Securities which it or they have agreed to purchase hereunder,
and the aggregate number of Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase is not more than one-
tenth of the aggregate number of the Underwriters' Securities, the other
Underwriters shall be obligated severally in the proportions which the number of
Offered Securities set forth opposite their names in the Underwriting Agreement
bear to the aggregate number of Offered Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the number of Offered Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this paragraph in excess of one-ninth of such number of
Offered Securities without the written consent of such Underwriter. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate number of Offered Securities, with respect to which such default
occurs is more than one-tenth of the aggregate number of the Underwriters'
Securities, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or of the Company. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
20
<PAGE>
XII.
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Manager as se forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Article IX hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the Manager upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
21
<PAGE>
This Agreement may be signed in any number of counterparts, each of
which shall be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
22
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed the __ day of _________, 1994.
INTERNATIONAL PAPER COMPANY
By: ________________________
Name:
Title:
[Seal]
Attest:
______________________________
Name:
Title:
23
<PAGE>
EXHIBIT A
[FORM OF OPINION OF THE ASSOCIATE GENERAL COUNSEL
OF THE COMPANY]
___________, 199_
Underwriters, c/o]
[Name and Address of Manager]
Gentlemen:
This opinion is furnished pursuant to Paragraph (d) of Article VI of
the Underwriting Agreement Standard Provisions (Preferred Stock) incorporated by
reference in the Underwriting Agreement dated _____________, 199__ (the
"Underwriting Agreement") between you, as representative of the several
underwriters (the "Underwriters") named therein, and International Paper
Company, a New York corporation (the "Company"), relating to the sale by the
Company and the purchase by the Underwriters, severally, of ______ [shares]
[_____ depositary shares (the "Depositary Shares") evidenced by depositary
receipts (the "Receipts") issued pursuant to the Deposit Agreement (the "Deposit
Agreement") dated as of _______ __, 199_, among the Company, ______, as
Depositary, and the holders from time to time of Receipts, each Depositary Share
representing _____ of a share] of [specify designation] Serial Preferred Stock,
$1.00 par value per share (the "Preferred Stock") of the Company. Capitalized
terms used but not defined in this letter are defined in the Underwriting
Agreement and are used herein with the same meanings as ascribed to them in the
Underwriting Agreement.
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
I have examined an executed copy of the Underwriting Agreement, [the
Deposit Agreement] [and of certain delayed delivery contracts substantially in
the form of Schedule I attached to the Underwriting Agreement (the "Delayed
Delivery Contracts"),] and a certified copy of the Restated Certificate of
Incorporation of the Company, including the applicable certificate of
designation (the "Certificate of Designation"). I have examined originals or
copies, certified or otherwise identified to my satisfaction, of such other
documents, corporate records, certificates of public officials and other
instruments as I have deemed necessary or advisable for the purpose of rendering
this opinion, including those relating to the authorization, execution and
delivery by the Company of the Underwriting Agreement, [the Deposit Agreement]
[and any Delayed Delivery Contracts], and the authorization, issuance and sale
of the Securities by the Company.
I have participated in the preparation of the Company's registration
statement on Form S-3 (File No. 33-____) [and any amendment thereto] (including
documents incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) filed with the Securities and Exchange Commission
(the "Commission") pursuant to the provisions of the Securities Act of 1933, as
amended (the "Act"). In addition, I have reviewed evidence that the
registration statement [as amended] was declared effective under the Act. The
registration statement (including the Incorporated Documents) as amended to the
date of the Underwriting Agreement is hereinafter referred to as the
"Registration Statement," and the prospectus included in the Registration
Statement as supplemented by the prospectus supplement specifically relating to
the Securities is hereinafter referred to as the "Prospectus".
Based on the foregoing, I am of the opinion that:
(i) the Company has been duly incorporated, is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corpo-
<PAGE>
[Underwriters, c/o]
[Date]
Page 3
rate and other) to own its properties and is duly qualified to do business
and is in good standing as a foreign corporation in each jurisdiction in
which its ownership of property or the conduct of its businesses requires
such qualification and where the failure to be so qualified would result in
a material adverse effect on the financial condition or operation or
prospects of the Company and its subsidiaries taken as a whole;
(ii) the Securities have been duly authorized, and,
when issued and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, [or by
institutional investors, if any, pursuant to Delayed Delivery
Contracts], will be validly issued, fully paid and nonassessable and
will have the rights set forth in the Company's Restated Certificate
of Incorporation, including the Certificate of Designation;
(iii) the Certificate of Designations has been filed
with the Secretary of State of the State of New York in accordance
with New York Business Corporation Law;
(iv) the Underwriting Agreement has been validly
authorized, executed and delivered by the Company and constitutes a
legally binding obligation of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, except
as rights to indemnity thereunder may be limited under applicable law;
(v) [the Delayed Delivery Contracts, if any, have been
validly authorized, executed and delivered by the Company and con-
<PAGE>
[Underwriters, c/o]
[Date]
Page 4
stitute 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 creditors' rights and to general equity principles;]
(vi) [the Deposit Agreement has been validly
authorized, executed and delivered by the Company and constitutes a
legally binding obligation of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles;]
(vii) the execution and delivery and performance of
[the Deposit Agreement,] [any Delayed Delivery Contracts and the]
Underwriting Agreement by the Company and sale of the Offered
Securities as provided in the Underwriting Agreement will not
contravene any provision of applicable law or the Company's Restated
Certificate of Incorporation or By-laws or, to my knowledge after
reasonably inquiry, any agreement, indenture or instrument binding
upon the Company, and no consent, approval or authorization of any
governmental agency or authority (other than in connection or in
compliance with the provisions of any state securities or Blue Sky
laws, as to which I express no opinion) is required for the
performance by the Company of the Underwriting Agreement;
(viii) [the [shares of common stock, par value $1.00 per
share (the "Common Stock"),] [or set forth title of other securities
issuable upon conversion] of the Company issuable upon [conversion]
[exchange] of the Offered Securities in accordance with the terms
thereof have been duly authorized and reserved for issuance upon
<PAGE>
[Underwriters, c/o]
[Date]
Page 5
such [conversion] [exchange], and, when issued and delivered upon such
[conversion] [exchange], will be duly authorized and validly issued and
will be fully paid and non-assessable; the stockholders of the Company have
no preemptive rights with respect to such [Common Stock] issuable upon
[conversion] [exchange] of such Offerred Securities; and such [shares of
Common Stock] conform on all material respects to the description of the
[Common Stock] contained in the Registration Statement and the Prospectus];
(ix) I do not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of the
Underwriting Agreement or is required to be disclosed in the
Registration Statement or Prospectus which is not disclosed and
correctly summarized therein;
(x) to the best of my knowledge, neither the Company
nor its subsidiaries are in violation in any material respect of their
corporate charters or by-laws, or in default in any material respect
under any agreement, indenture or instrument material to the Company
and its subsidiaries taken as a whole;
(xi) the Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the sale of the Offered
Securities (other than the financial statements and related schedules
therein, as to which I express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder; and I do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or
<PAGE>
[Underwriters, c/o]
[Date]
Page 6
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not filed or
incorporated by reference or described as required; and
(xii) documents incorporated by reference in the
Registration Statement and the Prospectus, when filed, complied, when
so filed, as to form in all material respects with the Securities
Exchange Act of 1934, as amended, and the applicable rules and
regulations of the Commission thereunder.
I have not conducted any independent investigation with regard to the
information set forth in the Registration Statement or Prospectus (except for
any investigation which I deemed necessary to render the opinions set forth
previously in this letter). I have, however, participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants of the Company, your representatives and
representatives of Skadden, Arps, Slate, Meagher & Flom, counsel for the
Underwriters, at which the contents of the Registration Statement and
Prospectus, including the documents incorporated by reference therein, and
related matters were discussed. On the basis of the foregoing, I advise you
that I have no reason to believe that (except for the financial statements
therein, as to which I express no opinion) the Registration Statement, the
Prospectus and documents incorporated by reference in the Registration Statement
on the date of the Underwriting Agreement contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (except for the financial statements therein, as to which I express
no opinion) as of the date hereof contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
<PAGE>
[Underwriters, c/o]
[Date]
Page 7
I note that the availability of specific enforcement, injunctive
relief or any equitable remedy is subject to the discretion of the court before
which any proceedings therefor may be brought and that certain courts may
enforce the rights of a holder of the Offered Securities only in circumstances
and in a manner in which it is equitable and commercially reasonable to do so.
Very truly yours,
<PAGE>
EXHIBIT B
[FORM OF OPINION OF THE COUNSEL FOR THE UNDERWRITERS]
__________, 199_
[Name of Manager
and the other Several Underwriters
named in the Underwriting Agreement]
[Address]
Dear Sirs:
In connection with the several purchases today by you and the other
Underwriters named in the Underwriting Agreement, dated ____________, 199_ (the
"Underwriting Agreement"), between International Paper Company, a New York
corporation (the "Company"), and you, as Manager of the several Underwriters
named therein (the "Underwriters"), of _______________ [shares] [depositary
shares ("Depositary Shares") evidenced by depositary receipts (the "Receipts")
issued pursuant to the Deposit Agreement (the "Deposit Agreement") dated as of
______, 199_ among the Company, __________, as Depositary (the "Depositary"),
and the holders from time to time of the Receipts, each Depositary Share
representing ___ of one share] of the Company's [specify designation] Serial
Preferred Stock, $1.00 par value per share ___________ (the "Offered
Securities"), we, as counsel for the several Underwriters, have examined such
corporate records, certificates and other documents, and such questions of law,
as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, we advise you that, in our opinion:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of New York.
2. The Offered Securities (other than Contract Securities) have been
duly authorized, issued and delivered; [the Contract Securities (when duly
issued and delivered to, and paid for by, the respective purchasers thereof
under the Delayed Delivery Contracts), constitute valid and legally binding
obligations of the
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
Company, enforceable in accordance with their terms subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.]
3. [Each of the Deposit Agreement and] The Underwriting Agreement
has been duly authorized, executed and delivered by the Company.
In rendering our opinion, we have, with your approval, relied as to
certain matters on information obtained from public officials, officers of the
Company and other sources believed by us to be responsible, and we have assumed
[that the Deposit Agreement has been duly authorized, executed and delivered by
the Depositary], that the Offered Securities conform to the specimen thereof
examined by us, and that the signatures on all documents examined by us are
genuine, assumptions which we have not independently verified.
Very truly yours,
<PAGE>
EXHIBIT C
__________, 199__
[Name of Manager
and the other several Underwriters
named in the Underwriting Agreement]
[Address]
Dear Sirs:
This is with reference to the registration under the Securities Act of 1933 (the
"Act") of __________ [shares] [depositary shares ("Depositary Shares") evidenced
by depositary receipts ("Receipts") issued pursuant to the Deposit Agreement
(the "Deposit Agreement") dated as of ______, 199_ among the Company, ______, as
Depositary, and the holders from time to time of the Receipts, each Depositary
Share representing _____ of a share] of [specify designation] Serial Preferred
Stock, $1.00 par value per share (the "Offered Securities"), of International
Paper Company (the "Company"). The Registration Statement was filed on Form S-3
under the Act, and accordingly the Registration Statement and the Prospectus
dated __________, 199_, filed pursuant to Rule 424(b) under the Act (the
"Prospectus"), do not necessarily contain a current description of the Company's
business and affairs since, pursuant to that Form, the Registration Statement
and the Prospectus incorporate by reference certain documents filed with the
Securities and Exchange Commission (the "Commission") which contain information
as of various dates. When the Registration Statement was declared effective by
the Commission, the form of prospectus included therein omitted certain
information in reliance upon Rule 430 under the Act. Such information is
contained in the Prospectus and, as provided in Rule 430A, is deemed to be a
part of the Registration Statement as of the time it was declared effective.
In accordance with our understanding with you as to the scope of our
services under the circumstances applicable to the offering of the Offered
Securities, we reviewed the Registration Statement and the Prospectus,
participated in discussions with your representatives and those of the Company,
its counsel and its accountants, and advised you as to the requirements of the
Act and the applicable rules and regulations thereunder. On the basis of the
information that we gained in the course of
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
the performance of the services referred to above, considered in the light of
our understanding of the applicable law (including the requirements of Form S-3
and the character of the prospectus contemplated thereby) and the experience we
have gained through our practice under the Act, we advised you and now confirm
that, in our opinion, the Registration Statement, as of its effective date, and
the Prospectus, as of the date of the Prospectus, appeared on their face to be
appropriately responsive, in all material respects, to the requirements of the
Act and the applicable rules and regulations of the Commission thereunder.
Further, nothing that came to our attention in the course of such review has
caused us to believe that the Registration Statement, as of its effective date,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, on the date of the Prospectus,
contained any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for those made under the captions
_______________ and ______________ in the Prospectus insofar as they relate to
provisions of documents therein described. Also, we do not express any opinion
or belief as to the financial statements or other financial data contained in
the Registration Statement or the Prospectus.
This letter is furnished by us as counsel for the several Underwriters
to you as Manager of the several Underwriters and is solely for the benefit of
the several Underwriters.
Very truly yours,
<PAGE>
UNDERWRITING AGREEMENT
_________, 199___
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Dear Sirs:
We understand that International Paper Company, a New York corporation
(the "Company"), proposes to issue and sell ________ [shares] [depositary shares
("Depositary Shares") evidenced by depositary receipts ("Receipts") issued
pursuant to the Deposit Agreement (the "Deposit Agreement") dated as of _______
__, 199_, among the Company, _______, as Depositary (the "Depositary"), and the
holders from time to time of Receipts, each Depositary Share representing
_______ of a share] of [specify designation] Preferred Stock, $1.00 par value
per share (the "Offered Securities"), of the Company. Subject to the terms and
conditions set forth or incorporated by reference herein, the Company hereby
agrees to sell and ______________________[, on behalf of the several
Underwriters named in Schedule A hereto and for their respective accounts] (the
"Underwriters") agree to purchase the Offered Securities on the following terms:
Title:
[Date of Board Resolution and Committees thereof, if any, Establishing
the Offered Securities: ______, 199__]
Number of Firm Securities:
Maximum Number of Optional Securities:
Dividend Rate:
Dividend Payment Dates:
Dividend Rights: [Non-]cumulative, [deferred]
Voting Rights:
<PAGE>
[Underwriters, c/o]
[Date]
Page 2
Redemption Provisions:
Liquidation Rights:
Pre-emptive, Exchange or Conversion Rights:
Sinking Fund:
[Terms of Depositary Shares]:
[Other Terms]
Delayed Delivery Contracts: [None] [Delivery Date[s] shall be
___________, 199__. Underwriters' fee is $_____ per share of the Contract
Securities.]
Purchase Price: $____ per share plus accrued dividends[, if any,]
from ______, 199__.
Expected Reoffering Price: $___ per share, subject to change by the
undersigned.
Closing: [10:00] A.M., New York City time, on _________, 199__, at
[Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, New York,] in
New York Clearing House or similar next day funds. (1)
(1) Underwriter[s']['s] Compensation: $______, payable to the
[Manager[s] for the proportionate accounts of the] Underwriter[s] on the Closing
Date. (1)
[Name[s] and Address[es] of Representative[s]:]
The respective numbers of shares of the Offered Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
[IF APPROPRIATE, INSERT--It is understood that we may, with your
consent, amend this offer to add addi-
- -----------------------
(1) Include if purchase is at public offering price and compensation is payable
separately.
<PAGE>
[Underwriters, c/o]
[Date]
Page 3
tional Underwriters and reduce the number of shares to be purchased by the
Underwriters listed in Schedule A hereto by the number of shares to be purchased
by such additional Underwriters.]
All the provisions contained in the document entitled International
Paper Company Underwriting Agreement Standard Provisions (Preferred Stock), a
copy of which you have previously received, except to the extent otherwise
provided herein, are herein incorporated by reference in their entirety and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein.
<PAGE>
[Underwriters, c/o]
[Date]
Page 4
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us by telecopy.
Very truly yours,
[Insert name(s) of Manager(s) or
Underwriters] [On behalf of --
themselves -- itself -- and as
Manager(s) of the Several] [As]
Underwriter(s)
By:___________________________________
Title:
Accepted as of the date hereof:
INTERNATIONAL PAPER COMPANY
By:___________________________
Title:
<PAGE>
[Underwriters, c/o]
[Date]
Page 5
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Shares
----------- ------
<S> <C>
- ----------------------------- -------
Total
-------
-------
</TABLE>
<PAGE>
SCHEDULE I
DELAYED DELIVERY CONTRACT
________ __, 199_
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Attention:_______________
Gentlemen:
The undersigned hereby agrees to purchase from International Paper
Company, a New York corporation (the "Company"), and the Company agrees to sell
to the undersigned, [IF ONE DELAYED CLOSING, INSERT -- as of the date hereof,
for delivery on ________, 199_ (the "Delivery Date"),]
__________ shares
of the Company's [INSERT TITLE OF SECURITIES] (the "Securities"), offered by the
Company's Prospectus dated ________, 199_ and a Prospectus Supplement dated
____________, 199_ relating thereto, receipt of copies of which is hereby
acknowledged, at $___ per share plus accrued dividends, if any, and on the
further terms and conditions set forth in this Delayed Delivery Contract
("Contract").
[IF TWO OR MORE DELAYED CLOSINGS, INSERT THE FOLLOWING:
The undersigned will purchase from the Company as of the date hereof,
for delivery on the dates set forth below, Securities in the amounts set forth
below:
<PAGE>
Delivery Date Number of Shares
------------- ----------------
_____________ ________________
_____________ ________________
Each of such delivery dates is hereinafter referred to as a "Delivery Date."]
Payment for the Securities that the undersigned has agreed to purchase
for delivery on [the] [each] Delivery Date shall be made to the Company or its
order by wire transfer or by certified or official bank check in New York
Clearing House or similar next day funds at the office of _________________ at
_____ A.M., New York City time, on [the] [such] Delivery Date upon delivery to
the undersigned of the Securities then to be purchased by the undersigned in
definitive fully registered form and in such denominations and registered in
such names as the undersigned may designate by written or telegraphic or such
other electronic communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
It is expressly agreed that the provisions for delayed delivery and
payment are for the sole convenience of the undersigned; that the purchase
hereunder of Securities is to be regarded in all respects as a purchase as of
the date of this Contract; that the obligation of the Company to make delivery
of and accept payment for, and the obligation of the undersigned to take
delivery of and make payment for, Securities on [the] [each] Delivery Date shall
be subject only to the conditions that (1) investment in the Securities shall
not at [the] [such] Delivery Date be prohibited under the laws of any
jurisdiction in the United States to which the undersigned is subject and (2)
the Company shall have sold to the Underwriters the total principal amount of
the Securities less the principal amount thereof covered by this and other
similar Contracts. The undersigned represents that its investment in the
Securities is not, as of the date hereof, prohibited under the laws of any
jurisdiction to which the undersigned is subject and which governs such
investment.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the
2
<PAGE>
undersigned at its address set forth below notice to such effect, accompanied by
a copy of the opinion of counsel for the Company delivered to the Underwriters
in connection therewith.
This Contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail or
deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
_______________________________________
(Name of Purchaser)
By:____________________________________
(Authorized Signature)
Name:
Title:
____________________________________
(Address of Purchaser)
Accepted, as of the above date.
INTERNATIONAL PAPER COMPANY
By:______________________
Name:
Title:
3
<PAGE>
Exhibit 1.3
INTERNATIONAL PAPER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (COMMON STOCK)
<PAGE>
From time to time, International Paper Company, a New York corporation
(the "Company"), may enter into one or more underwriting agreements that provide
for the sale of designated securities (the "Offered Securities") to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
I.
The Company proposes to issue from time to time shares of its common
stock, $1.00 par value ("Common Stock"). Each share of Common Stock so issued
shall be accompanied by one Common Share Purchase Right to purchase Common Stock
upon the terms and conditions set forth in the Rights Agreement dated as of
April 14, 1987, as amended, between the Company and Chemical Bank (as successor
to Manufacturers Hanover Trust Company), as Rights Agent. The shares of Common
Stock, including the Common Share Purchase Rights, to be issued hereunder are
sometimes referred to herein as the "Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Securities and has filed with, or mailed for filing to, the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Act"). The term "Registration Statement" means the registration statement
as amended to the date of the Underwriting Agreement. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement (other than a preliminary prospectus supplement) specifically
relating to the Offered Securities as filed with, or mailed for filing to, the
Commission pursuant to Rule 424. The term preliminary prospectus means a
preliminary prospectus
2
<PAGE>
supplement specifically relating to the Offered Securities together with the
Basic Prospectus. As used herein, the terms "Registration Statement," "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include, in each
case, the material, if any, incorporated by reference therein.
The Offered Securities shall include the Firm Securities (the "Firm
Securities") which the Underwriters have agreed to purchase on the Closing Date
together with any Optional Securities (as hereinafter defined) which the
Underwriters may elect to purchase pursuant to Article III hereof. The term
"Underwriters' Securities" means the Offered Securities to be purchased by the
Underwriters herein.
II.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
III.
The Company may specify in the Underwriting Agreement applicable to
any Firm Securities that the Company grants to the Underwriters the right (an
"Over-allotment Option") to purchase at their election up to the number of
Securities (the "Optional Securities") set forth in the Underwriting Agreement.
Upon written notice from the Manager given to the Company not more than 30 days
subsequent to the date of the initial offering of the Securities, the
Underwriters may purchase all or less than all of the Optional Securities, which
shall be at the purchase price per Security to be paid for the Firm Securities.
Such Optional Securities shall be purchased for the account of each Underwriter
in the same proportion as the number of shares of Firm Securities set forth
opposite such Underwriter's name bears to the total
3
<PAGE>
number of shares of Firm Securities (subject to adjustment by the Manager to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
surrendered and terminated at any time upon notice by the Manager to the
Company.
IV.
Payment for the Underwriters' Securities shall be made by wire
transfer or by certified or official bank check or checks payable to the order
of the Company in New York Clearing House or similar next day funds at the time
and place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the date
of delivery. For the purpose of expediting the checking and packaging of the
Underwriters' Securities, such Underwriters' Securities shall be available for
inspection by the Manager not later than 2:00 P.M., New York City time, on the
business day prior to the Closing Date. The time and date of such payment and
delivery with respect to the Firm Securities is herein referred to as the "First
Closing Date" and with respect to the Optional Securities is herein referred to
as the "Second Closing Date," which may be the First Closing Date (the First
Closing Date and the Second Closing Date, if any, being sometimes referred to
herein as a "Closing Date").
V.
The several obligations of the Underwriters to purchase and pay for
the Firm Securities on the First Closing Date and the Optional Securities on the
Second Closing Date are subject to the following conditions:
4
<PAGE>
(a) The representations and warranties of the Company contained
herein shall be true and correct in all material respects on such Closing Date,
and the Company shall have complied with its agreements hereunder.
(b) The Prospectus as amended or supplemented in relation to the
Underwriters' Securities shall have been filed with the Commission pursuant to
Rule 424 within the applicable time period prescribed for such filing by the
rules and regulations under the Act. No stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no proceedings for such
purpose shall be pending before or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to the Underwriters' satisfaction; and there shall have been
no material adverse change in the condition (financial or otherwise) of the
Company and its subsidiaries, taken as a whole, or in the earnings or business
affairs of the Company and its subsidiaries, taken as a whole, whether or not
arising in the ordinary course of business, from that set forth in the
Registration Statement and the Prospectus.
(c) The Company shall have furnished to the Manager on such
Closing Date a certificate, dated as of such Closing Date, of an authorized
executive officer of the Company stating that:
(i) The representations, warranties and agreements of the
Company herein are true and correct in all material respects as of such
Closing Date; the Company has complied in all material respects with its
agreements contained herein; and the conditions set forth in clause (b)
above have been fulfilled; and
(ii) Such officer has carefully examined the Registration
Statement and Prospectus and, in such officer's opinion, (A) as of the date
of the Prospectus, (1) the Registration Statement did not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (2) the Prospectus did not include an untrue statement of a
material fact or omit
5
<PAGE>
to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and (B) since the date of the
Prospectus, no event has occurred which should have been set forth in a
supplement to or amendment of the Prospectus which has not been set forth
in such a supplement or amendment.
(d) The Manager shall have received, on such Closing Date, an
opinion of the counsel for the Company, dated as of such Closing Date, in
substantially the form set forth as Exhibit A.
(e) The Manager shall have received, on such Closing Date, an
opinion of the counsel for the Underwriters, dated as of such Closing Date, in
substantially the form set forth as Exhibit B and Exhibit C.
(f) The Manager shall have received, on such Closing Date, a
letter dated as of such Closing Date, in form and substance satisfactory to the
Manager, from Arthur Andersen & Co., independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in or incorporated by reference into the
Registration Statement and the Prospectus and with respect to certain changes
since the date of such financial statements and financial information.
(g)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, and (ii)
since the respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affect-
6
<PAGE>
ing the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented, the effect
of which, in any such case described in clause (i) or (ii), is, in the sole
judgment of the Manager, so material and adverse that proceeding with the public
offering or the delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented would be
impracticable.
(h) On or after the date of the Pricing Agreement relating to
the Offered Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of possible downgrading, of such rating)
and (ii) no suspension or material limitation on trading in securities generally
on the New York Stock Exchange or any securities of the Company on any exchange
or in the over-the-counter market shall have occurred.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, as many copies of
the Registration Statement, only one of which need include exhibits and
materials, if any, incorporated by reference therein, as the Manager may
reasonably request and, during the period mentioned in clause (c) below, as many
copies of the Prospectus, any documents incorporated by reference therein and
any supplements and amendments thereto as the Manager may reasonably request.
The terms "supplement" and "amendment" or "amend" as used in this Agreement with
respect
7
<PAGE>
to the Registration Statement or Prospectus shall include all documents filed by
the Company with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), which are deemed to be incorporated by reference in the Prospectus.
(b) To prepare the Prospectus, as amended and supplemented, in
relation to the applicable Offered Securities in the form approved by the
Manager and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission's close of business on the second day following the
execution and delivery of the Underwriting Agreement relating to the applicable
Offered Securities, and before amending or supplementing the Registration
Statement or the Prospectus with respect to the Offered Securities, to promptly
advise and furnish the Manager with a copy of each such proposed amendment or
supplement.
(c) If, during such period after the commencement of the public
offering of the Offered Securities that counsel for the Underwriters is of the
opinion that the Prospectus is required by law to be delivered with respect
thereto, any event shall occur as a result of which the Prospectus as then
amended or supplemented would, in the opinion of Underwriters' counsel, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances then existing, not misleading, or if, in the opinion of
Underwriters' counsel, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith at the Company's own expense, to amend or to
supplement the Prospectus and to furnish such amendment or supplement to the
Underwriters, so as to correct such statement or omission or effect such
compliance.
(d) Endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Offered Securities
for investment under the laws of such jurisdictions as the Manager may
designate.
8
<PAGE>
(e) To make generally available to the Company's security
holders as soon as practicable, but no later than 18 months after the effective
date of the Registration Statement (as defined in Rule 158(c)), an earnings
statement, which shall satisfy the provisions of Section 11(a) of the Act and
the rules and regulations thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the earlier of (i) the date of notice
to the Company by the Manager of the termination of trading restrictions, if
any, with respect to the Offered Securities imposed by any agreement among
Underwriters or (ii) the applicable Closing Date, not to offer, sell, contract
to sell or otherwise dispose of any shares of Common Stock of the Company or
securities convertible into, or exercisable or exchangeable for, shares of its
Common Stock (except issuances in accordance with the terms of the Company's
Common Share Purchase Rights or up to [ ] shares issuable pursuant to any
stock option or incentive plan of the Company in effect on the date of the
Underwriting Agreement or issuances upon the conversion of securities or the
exercise of warrants outstanding on the date of the Underwriting Agreement)
without the prior written consent of the Manager.
(g) To advise the Manager promptly (i) when any post-effective
amendment to the Registration Statement relating to or covering the Offered
Securities becomes effective, (ii) of any request or proposed request by the
Commission for an amendment or supplement to the Registration Statement or to
any Prospectus (insofar as the amendment or supplement relates to or covers the
Offered Securities), (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or any order directed
to any Prospectus or any document incorporated therein by reference or the
initiation or threat of any stop order proceeding or of any challenge to the
accuracy or adequacy of any document incorporated by reference in any Prospectus
(insofar as any such issuance or challenge relates to or covers the Offered
Securities), (iv) of receipt by the Company of any notification with respect to
the suspension of the qualification of the Offered Securities for sale in any
jurisdiction or the initiation or threat of any proceeding for that purpose and
(v) of the happening
9
<PAGE>
of any event which makes untrue any statement of a material fact made in the
Registration Statement or any Prospectus or which requires the making of a
change in the Registration Statement or any Prospectus in order to make any
material statement therein not misleading (insofar as the Registration Statement
or Prospectus relates to or covers the Offered Securities).
(h) If, during the period referred to in clause (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the lifting of
that order at the earliest possible time.
(i) To pay the costs of printing this Agreement, the fees paid
in connection with the listing of the Securities, including the Offered
Securities, on the New York Stock Exchange and all other costs and expenses
incident to the performance of the Company's obligations under this Agreement;
provided that, except as provided otherwise herein, the Underwriters shall pay
their own costs and expenses, including the fees and expenses of their counsel,
any transfer taxes on the Offered Securities which they may sell, the expenses
incident to the performance of the Company's obligations under this Agreement,
and the expenses of advertising any offering of the Offered Securities made by
the Underwriters.
(j) Until the termination of the offering of the Offered
Securities, to file all documents, and any amendments to previously filed
documents, required to be filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act in a timely manner.
VII.
The Company represents and warrants to each Underwriter as follows:
(a) The Registration Statement has become effective; (ii) each
document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the
10
<PAGE>
applicable rules and regulations thereunder and, except as otherwise disclosed
to the Manager, no order directed to any document incorporated by reference in
the Prospectus has been issued, (iii) each part of the Registration Statement
(including the documents incorporated by reference therein), filed with the
Commission pursuant to the Act relating to the Securities, when such part became
effective, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iv) each preliminary prospectus, if any,
filed pursuant to Rule 424 under the Act complied when so filed in all material
respects with such Act and the applicable rules and regulations thereunder, (v)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the Act
and the applicable rules and regulations thereunder, (vi) (1) the Registration
Statement does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and (2) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that these representations and warranties do not apply to
statements or omissions in the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the Company in
writing by any Underwriter through the Manager expressly for use therein.
(b) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements
11
<PAGE>
therein not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished to the Company by an Underwriter of
Offered Securities directly or through the Manager expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
(c) Neither the Company nor any of its subsidiaries is in
violation of its corporate charter or by-laws or in default under any agreement,
indenture, mortgage, lease, note or instrument, which violation or default would
have a material adverse effect on the assets, operations, condition (financial
and otherwise) or the prospects of the Company and its subsidiaries taken as a
whole (a "Material Adverse Effect"); the execution, delivery and performance of
this Agreement and compliance by the Company with the provisions of the Offered
Securities will not (1) conflict with, result in the creation or imposition of
any lien, charge or encumbrance upon any of the assets of the Company or any of
its subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument, or result in a violation of the corporate
charter or by-laws of the Company or any of its subsidiaries or any order, rule
or regulation of any court or governmental agency having jurisdiction over the
Company, any of its subsidiaries or their respective properties or (2) have a
Material Adverse Effect; and except as required by the Act, the Exchange Act and
applicable state securities or Blue Sky laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency is required
for the execution, delivery and performance by the Company of this Agreement.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, since the dates as of which information is given
in the Registration Statement and the Prospectus, no Material Adverse Effect has
occurred.
(e) Each of the accountants whose reports are incorporated by
reference in the Prospectus are independent public accountants as required by
the Act and the applicable rules and regulations thereunder.
12
<PAGE>
(f) On the applicable Closing Date, (i) the Offered Securities
will have been validly authorized and, upon payment therefor as provided in this
Agreement, will be validly issued, fully paid and nonassessable and will have
the rights set forth in the Company's Restated Certificate of Incorporation, and
(ii) the Offered Securities will conform to the descriptions thereof contained
in the Prospectus.
(g) The Company and each of its subsidiaries have been duly
incorporated, are validly existing and in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
in good standing as foreign corporations in each jurisdiction in which their
respective ownership of property or the conduct of their respective business
requires such qualification and where the failure to be so qualified would have
a Material Adverse Effect, and have the corporate power and authority necessary
to own or hold their respective properties and to conduct the businesses in
which they are engaged.
(h) Except as described in each Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which might
result in any Material Adverse Effect or which is required to be disclosed in
the Registration Statement.
(i) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein in light of the
circumstances under which they were made not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regu-
13
<PAGE>
lations of the Commission thereunder and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished to
the Company by an Underwriter of Offered Securities directly or through the
Manager expressly for use in the Prospectus as amended or supplemented relating
to such Securities.
(j) The audited financial statements filed as part of or
incorporated by reference in the Registration Statement or Prospectus present,
or (in the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made) will
present fairly, at all times during the period specified in clause (c) of
Article VI hereof, the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been, and (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation is
being made) will be at all times during the period specified in clause (c) of
Article VI hereof, prepared in conformity with generally accepted accounting
principles.
(k) There are no contracts or other documents which are required
to be filed as exhibits to the Registration Statement by the Act or by the rules
and regulations thereunder, or which were required to be filed as exhibits to
any document incorporated by reference in any Prospectus by the Exchange Act or
the rules and regulations thereunder, which have not been filed as exhibits to
the Registration Statement or to such document or incorporated therein by
reference as permitted by such rules and regulations.
14
<PAGE>
VIII.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus or the Prospectus as amended or
supplemented (if used within the period set forth in clause (c) of Article VI
hereof and as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
that such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter through the
Manager expressly for use therein; provided, however, that the foregoing
indemnity with respect to preliminary prospectuses shall not inure to the
benefit of any Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities if such untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus is
eliminated or remedied in the Prospectus and a copy of the Prospectus (excluding
documents incorporated by reference) has not been furnished to such person at or
prior to the written confirmation of the sale of such Offered Securities to such
person.
Each Underwriter agrees to indemnify and hold harmless the Company,
its directors, its officers who sign the Registration Statement and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to information furnished in
writing by such Underwriter through the Manager expressly for use in the
Registration Statement, any preliminary prospectus or the Prospectus as amended
or supplemented.
If any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to
15
<PAGE>
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding; any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by the Manager in
the case of parties indemnified pursuant to the second preceding paragraph and
by the Company in the case of parties indemnified pursuant to the first
preceding paragraph. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but, if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in this Article VIII is
unavailable to an indemnified party under the second or third paragraphs hereof
or insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the alloca-
16
<PAGE>
tion provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of such Offered
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters in respect
thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other 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 or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Article VIII were
determined by pro rata allocation or by any other method of allocation which
does not take account of the consideration referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article VIII, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Offered Securities
underwritten and distributed to the public by such Underwriter were offered to
the public exceeds the amount of any damages which such Underwriter has
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 Act) shall be
entitled to contribution from any person who was not guilty of such
17
<PAGE>
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Article VIII are several, in proportion to the respective
number of Offered Securities purchased by each of such Underwriters, and not
joint.
The indemnity and contribution agreements contained in this Article
VIII and the representations and warranties of the Company in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by any Underwriter or
on behalf of any Underwriter or any person controlling any Underwriter or by or
on behalf of the Company, its directors or officers or any person controlling
the Company and (iii) acceptance of and payment for any of the Offered
Securities.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) trading in the Common
Stock of the Company has been suspended, (iii) a general moratorium on
commercial banking activities in the State of New York shall have been declared
by either Federal or New York State authorities or (iv) there shall have
occurred any material outbreak or escalation of hostilities or other calamity or
crisis the effect of which on the financial markets of the United States is such
as to make it, in the judgment of the Manager, impracticable to proceed with the
public offering or delivery of the Offered Securities on the terms and in the
manner contemplated in the Prospectus as amended or supplemented.
X.
If any one or more of the Underwriters shall fail or refuse to
purchase Offered Securities which it or they have agreed to purchase hereunder,
and the aggregate number of Offered Securities which such defaulting
18
<PAGE>
Underwriter or Underwriters agreed but failed or refused to purchase is not more
than one-tenth of the aggregate number of the Underwriters' Securities, the
other Underwriters shall be obligated severally in the proportions which the
number of Offered Securities set forth opposite their names in the Underwriting
Agreement bear to the aggregate number of Offered Securities set forth opposite
the names of all such non-defaulting Underwriters, or in such other proportions
as the Manager may specify, to purchase the Underwriters' Securities which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase;
provided that in no event shall the number of Offered Securities which any
Underwriter has agreed to purchase pursuant to the Underwriting Agreement be
increased pursuant to this paragraph in excess of one-ninth of such number of
Offered Securities without the written consent of such Underwriter. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. If any Underwriter or
Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate number of Offered Securities, with respect to which such default
occurs is more than one-tenth of the aggregate number of the Underwriters'
Securities, and arrangements satisfactory to the Manager and the Company for the
purchase of such Offered Securities are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or of the Company. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
XI.
The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
19
<PAGE>
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Securities.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Manager as se forth in the Pricing
Agreement; and if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Article VIII hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the Manager upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement, with respect to themselves, severally, for
all out-of-pocket expenses (including the fees and disbursements of their
counsel) reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
20
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed as of the __ day of ________, 1994.
INTERNATIONAL PAPER COMPANY
By: ________________________
[Seal]
Attest:
______________________________
21
<PAGE>
EXHIBIT A
[FORM OF OPINION OF THE ASSOCIATE GENERAL COUNSEL
OF THE COMPANY]
___________, 199_
[Underwriters, c/o]
[Name and Address of Manager]
Gentlemen:
This opinion is furnished pursuant to Paragraph (d) of Article V of
the Underwriting Agreement Standard Provisions (Common Stock) incorporated by
reference in the Underwriting Agreement dated ______________, 199_ (the
"Underwriting Agreement") between you, as representative of the several
underwriters (the "Underwriters") named therein, and International Paper
Company, a New York corporation (the "Company"), relating to the sale by the
Company and the purchase by the Underwriters, severally, of __ shares of Common
Stock, par value $1.00 per share, of the Company (the "Securities").
Capitalized terms used but not defined in this letter are defined in the
Underwriting Agreement and are used herein with the same meanings as ascribed to
them in the Underwriting Agreement.
I have examined an executed copy of the Underwriting Agreement. In
addition, I have examined originals or copies, certified or otherwise identified
to my satisfaction, of such other documents, corporate records, certificates of
public officials and other instruments as I have deemed necessary or advisable
for the purpose of rendering this opinion, including those relating to the
authorization, execution and delivery by the Company of
<PAGE>
International Paper Company
[Date]
Page 2
the Underwriting Agreement, and the authorization, issuance and sale of the
Securities by the Company.
I have participated in the preparation of the Company's registration
statement on Form S-3 (File No. 33-____) [and any amendment thereto] (including
documents incorporated by reference in the prospectus included therein (the
"Incorporated Documents")) filed with the Securities and Exchange Commission
(the "Commission") pursuant to the provisions of the Securities Act of 1933, as
amended (the "Act"). In addition, I have reviewed evidence that the
registration statement [as amended] was declared effective under the Act on
________ __, 199_. The registration statement (including the Incorporated
Documents) as amended to the date of the Underwriting Agreement is hereinafter
referred to as the "Registration Statement", and the prospectus included in the
Registration Statement as supplemented by the prospectus supplement specifically
relating to the Securities is hereinafter referred to as the "Prospectus."
Based on the foregoing, I am of the opinion that:
(i) the Company has been duly incorporated, is validly
existing and in good standing under the laws of its jurisdiction of
incorporation, with power and authority (corporate and other) to own
its properties and is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which its
ownership of property or the conduct of its businesses requires such
qualification and where the failure to be so qualified would result in
a material adverse effect on the financial condition or operation or
prospects of the Company and its subsidiaries taken as a whole;
(ii) the Securities have been duly authorized, and,
when issued and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwrit-
<PAGE>
International Paper Company
[Date]
Page 3
ing Agreement, will be validly issued, fully paid and nonassessable and
will have the rights set forth in the Company's Restated Certificate of
Incorporation;
(iii) the Underwriting Agreement has been validly
authorized, executed and delivered by the Company and constitutes a
legally binding obligation of the Company enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles, except
as rights to indemnity thereunder may be limited under applicable law;
(iv) the execution and delivery and performance of the
Underwriting Agreement by the Company and sale of the Offered Securi-
ties as provided in the Underwriting Agreement will not contravene any
provision of applicable law or the Company's Restated Certificate of
Incorporation or By-laws or, to my knowledge after reasonably inquiry,
any agreement, indenture or instrument binding upon the Company, and
no consent, approval or authorization of any governmental agency or
authority (other than in connection or in compliance with the provi-
sions of any state securities or Blue Sky laws, as to which I express
no opinion) is required for the performance by the Company of the
Underwriting Agreement;
(v) I do not know of any litigation or any
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which would affect the subject matter of the
Underwriting Agreement or is required to be disclosed in the
Registration Statement or Prospectus which is not disclosed and
correctly summarized therein;
<PAGE>
International Paper Company
[Date]
Page 4
(vi) to the best of my knowledge, neither the Company
nor its subsidiaries are in violation in any material respect of their
corporate charters or by-laws, or in default in any material respect
under any agreement, indenture or instrument material to the Company
and its subsidiaries taken as a whole;
(vii) the Registration Statement and the Prospectus as
amended or supplemented and any further amendments and supplements
thereto made by the Company prior to the sale of the Offered
Securities (other than the financial statements and related schedules
therein, as to which I express no opinion) comply as to form in all
material respects with the requirements of the Act and the rules and
regulations thereunder; and I do not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as amended
or supplemented which are not filed or incorporated by reference or
described as required; and
(viii) documents incorporated by reference in the
Registration Statement and the Prospectus, when filed, complied, when
so filed, as to form in all material respects with the Securities
Exchange Act of 1934, as amended, and the applicable rules and regula-
tions of the Commission thereunder.
I have not conducted any independent investigation with regard to the
information set forth in the Registration Statement or Prospectus (except for
any investigation which I deemed necessary to render the opinions set forth
previously in this letter). I have,
<PAGE>
International Paper Company
[Date]
Page 5
however, participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants of the
Company, your representatives and representatives of SKADDEN, ARPS, SLATE,
MEAGHER & FLOM, counsel for the Underwriters, at which the contents of the
Registration Statement and Prospectus, including the documents incorporated by
reference therein, and related matters were discussed. On the basis of the
foregoing, I advise you that I have no reason to believe that (except for the
financial statements therein, as to which I express no opinion) the Registration
Statement, the Prospectus and documents incorporated by reference in the
Registration Statement on the date of the Underwriting Agreement contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectus (except for the financial statements therein, as to which
I express no opinion) as of the date hereof contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
I note that the availability of specific enforcement, injunctive
relief or any equitable remedy is subject to the discretion of the court before
which any proceedings therefor may be brought and that certain courts may
enforce the rights of a holder of the Offered Securities only in circumstances
and in a manner in which it is equitable and commercially reasonable to do so.
Very truly yours,
<PAGE>
EXHIBIT B
[FORM OF OPINION OF THE COUNSEL FOR THE UNDERWRITERS]
__________, 199_
[Name of Manager
and the other Several Underwriters
named in the Underwriting Agreement]
[Address]
Dear Sirs:
In connection with the several purchases today by you and the other
Underwriters named in the Underwriting Agreement, dated ____________, 199_ (the
"Underwriting Agreement"), between International Paper Company, a New York
corporation (the "Company"), and you, as Manager of the several Underwriters
named therein (the "Underwriters"), of _______________ shares of the Company's
Common Stock, par value $1.00 per share (the "Offered Securities"), we, as
counsel for the several Underwriters, have examined such corporate records,
certificates and other documents, and such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion. Upon the
basis of such examination, we advise you that, in our opinion:
1. The Company has been duly incorporated and is validly existing and
in good standing under the laws of the State of New York.
2. The Offered Securities have been duly authorized, issued and
delivered and are fully paid and nonassessable.
3. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
In rendering our opinion, we have, with your approval, relied as to
certain matters on information obtained from public officials, officers of the
Company and other sources believed by us to be responsible, and we have assumed
that the Offered Securities conform to
<PAGE>
International Paper Company
[Date]
Page 3
the specimen thereof examined by us, and that the signatures on all documents
examined by us are genuine, assumptions which we have not independently
verified.
Very truly yours,
<PAGE>
EXHIBIT C
__________, 199_
[Name of Manager
and the other several Underwriters
named in the Underwriting Agreement]
[Address]
Dear Sirs:
This is with reference to the registration under the Securities Act of
1933 (the "Act") of ___ shares of Common Stock, par value $1.00 per share (the
"Offered Securities"), of International Paper Company (the "Company"). The
Registration Statement was filed on Form S-3 under the Act, and accordingly the
Registration Statement and the Prospectus dated ___________, 199_, filed
pursuant to Rule 424(b) under the Act (the "Prospectus"), do not necessarily
contain a current description of the Company's business and affairs since,
pursuant to that Form, the Registration Statement and the Prospectus incorporate
by reference certain documents filed with the Securities and Exchange Commission
(the "Commission") which contain information as of various dates. When the
Registration Statement was declared effective by the Commission, the form of
prospectus included therein omitted certain information in reliance upon Rule
430 under the Act. Such information is contained in the Prospectus and, as
provided in Rule 430A, is deemed to be a part of the Registration Statement as
of the time it was declared effective.
In accordance with our understanding with you as to the scope of our
services under the circumstances applicable to the offering of the Offered
Securities, we reviewed the Registration Statement and the Prospectus,
participated in discussions with your representatives and those of the Company,
its counsel and its accountants, and advised you as to the requirements of the
Act and the applicable rules and regulations thereunder. On the basis of the
information that we gained in the course of the performance of the services
referred to above, considered in the light of our understanding of the
applicable law (including the requirements of Form S-3 and the character of the
prospectus contemplated thereby) and the experience we have gained through our
practice under the
<PAGE>
International Paper Company
[Date]
Page 3
Act, we advised you and now confirm that, in our opinion, the Registration
Statement, as of its effective date, and the Prospectus, as of the date of the
Prospectus, appeared on their face to be appropriately responsive, in all
material respects, to the requirements of the Act and the applicable rules and
regulations of the Commission thereunder. Further, nothing that came to our
attention in the course of such review has caused us to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus, on the date of the Prospectus, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
The limitations inherent in the independent verification of factual
matters and the character of determinations involved in the registration process
are such, however, that we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus except for those made under the captions
_______________ and ______________ in the Prospectus insofar as they relate to
provisions of documents therein described. Also, we do not express any opinion
or belief as to the financial statements or other financial data contained in
the Registration Statement or the Prospectus.
This letter is furnished by us as counsel for the several Underwriters
to you as Manager of the several Underwriters and is solely for the benefit of
the several Underwriters.
Very truly yours,
<PAGE>
UNDERWRITING AGREEMENT
_________, 199_
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Dear Sirs:
We understand that International Paper Company, a New York corporation
(the "Company"), proposes to issue and sell ____ shares of its Common Stock, par
value $1.00 per share (the "Offered Securities"). Subject to the terms and
conditions set forth or incorporated by reference herein, the Company hereby
agrees to sell and ______[, on behalf of the several Underwriters named in
Schedule A hereto and for their respective accounts] (the "Underwriters") agree
to purchase the Offered Securities on the following terms.
Title:
Number of Firm Securities:
Purchase Price: $_____ per share.
Expected Reoffering Price: $_____ per share, subject to change by the
undersigned.
Closing: [10:00 A.M.], New York City time, on ______, 199_, at the offices
of [Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York,] New
York, in New York Clearing House or similar next day funds.
(1) Underwriter[s']['s] Compensation: $_____, payable to the [Manager[s]
for the proportionate accounts of the] Underwriter[s] on the Closing Date.
- --------------------
1 Include if purchase is at public offering price and compensation is payable
separately.
<PAGE>
International Paper Company
[Date]
Page 2
[Name[s] and address[es] of Manager[s]:]
The respective number of shares of the Securities to be purchased by
each of the Underwriters are set forth opposite their names in Schedule A
hereto.
[IF APPROPRIATE, INSERT-- It is understood that we may, with your
consent, amend this offer to add additional Underwriters and reduce the number
of shares to be purchased by the Underwriters listed in Schedule A hereto by the
number of shares to be purchased by such additional Underwriters.]
All the provisions contained in the document entitled International
Paper Company Underwriting Agreement Standard Provisions (Common Stock), a copy
of which you have previously received, except to the extent otherwise provided
herein, are herein incorporated by reference in their entirety and shall be
deemed to be a part of this Agreement to the same extent as if such provisions
had been set forth in full herein.
<PAGE>
International Paper Company
[Date]
Page 3
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below and returning the signed
copy to us by telecopy.
Very truly yours,
[Insert name(s) of Manager(s) or
Underwriters] [On behalf of--themselves
--itself--and as Manager(s) of the
several] [As] Underwriter(s)
By:____________________________________
Title:
Accepted as of the date hereof:
INTERNATIONAL PAPER COMPANY
By:___________________________
Title:
<PAGE>
International Paper Company
[Date]
Page 4
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Shares
- ----------- ---------
<S> <C>
_________
Total................._______
_______
</TABLE>
<PAGE>
EXHIBIT 4.5
- -------------------------------------------------------------------------------
INTERNATIONAL PAPER COMPANY
TO
THE CHASE MANHATTAN BANK, N.A.
Trustee
____________
Indenture
Dated as of April 1, 1994
____________
Senior Debt Securities
- -------------------------------------------------------------------------------
<PAGE>
PAGE
----
INTERNATIONAL PAPER COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of April 1, 1994
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . 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.
<PAGE>
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. . . . . . . . . . . . . . . . . . . . . 4
Commission . . . . . . . . . . . . . . . . . . . . . . . . 4
Common Stock . . . . . . . . . . . . . . . . . . . . . . . 4
Company. . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Request or Company Order . . . . . . . . . . . . . 4
Continuing Director. . . . . . . . . . . . . . . . . . . . 4
Corporate Trust Office . . . . . . . . . . . . . . . . . . 5
Corporation. . . . . . . . . . . . . . . . . . . . . . . . 5
Coupon . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Defaulted Interest . . . . . . . . . . . . . . . . . . . . 5
Depository . . . . . . . . . . . . . . . . . . . . . . . . 5
Dollar or $. . . . . . . . . . . . . . . . . . . . . . . . 5
Euro-clear . . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . . 5
Exchange Date. . . . . . . . . . . . . . . . . . . . . . . 5
Exercise Period. . . . . . . . . . . . . . . . . . . . . . 5
(1) NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
PAGE
----
Forestlands. . . . . . . . . . . . . . . . . . . . . . . . 5
Funded Debt. . . . . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest . . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date. . . . . . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificate. . . . . . . . . . . . . . . . . . . 6
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . . 7
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . 7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . . 8
Principal Manufacturing Facility . . . . . . . . . . . . . 9
Redemption Date. . . . . . . . . . . . . . . . . . . . . . 9
Redemption Price . . . . . . . . . . . . . . . . . . . . . 9
Registered Security. . . . . . . . . . . . . . . . . . . . 9
Regular Record Date. . . . . . . . . . . . . . . . . . . . 9
Responsible Officer. . . . . . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . . . . .10
Security Register and
Security Registrar . . . . . . . . . . . . . . . . . . .10
Special Record Date. . . . . . . . . . . . . . . . . . . .10
Stated Maturity. . . . . . . . . . . . . . . . . . . . . .10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . .10
Trustee . . . . . . . . . . . . . . . . . . . . . . . . .11
Trust Indenture Act. . . . . . . . . . . . . . . . . . . .11
United States. . . . . . . . . . . . . . . . . . . . . . .11
United States Alien. . . . . . . . . . . . . . . . . . . .11
U.S. Government Obligations. . . . . . . . . . . . . . . .11
Vice President . . . . . . . . . . . . . . . . . . . . . .12
Yield to Maturity. . . . . . . . . . . . . . . . . . . . .12
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . 12
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . 13
SECTION 1.4 Acts of Holders. . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.5 Notices, Etc., to Trustee and Company. . . . . . . . . . 18
SECTION 1.6 Notice to Holders of Securities; Waiver. . . . . . . . . 19
SECTION 1.7 Language of Notices, Etc.. . . . . . . . . . . . . . . . 20
SECTION 1.8 Conflict with Trust Indenture Act. . . . . . . . . . . . 20
SECTION 1.9 Effect of Headings and Table of Contents . . . . . . . . 20
ii
<PAGE>
PAGE
----
SECTION 1.10 Successors and Assigns . . . . . . . . . . . . . . . . . 21
SECTION 1.11 Separability Clause. . . . . . . . . . . . . . . . . . . 21
SECTION 1.12 Benefits of Indenture. . . . . . . . . . . . . . . . . . 21
SECTION 1.13 Governing Law. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.14 Legal Holidays . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.2 Form of Trustee's Certificate
of Authentication. . . . . . . . . . . . . . . . . . . 23
SECTION 2.3 Securities in Global Form. . . . . . . . . . . . . . . . 23
SECTION 2.4 Form of Legend for Book-Entry Securities . . . . . . . . 24
SECTION 2.5 Form of Conversion Notice. . . . . . . . . . . . . . . . 25
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . 26
SECTION 3.2 Denominations. . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.3 Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . 34
SECTION 3.5 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . . . . . . . . 37
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities and Coupons . . . . . . . . . . . . . . . . 42
SECTION 3.7 Payment of Interest; Interest Rights
Preserved. . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 3.8 Persons Deemed Owners. . . . . . . . . . . . . . . . . . 45
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 3.10 Computation of Interest. . . . . . . . . . . . . . . . . 46
SECTION 3.11 Electronic Security Issuance . . . . . . . . . . . . . . 47
iii
<PAGE>
PAGE
----
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. . . . . . . . . 47
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . 49
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series . . . . . . . . . . . . . . . 49
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. . . . . . . . . . . . . . . . . . . . 53
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . 56
SECTION 5.4 Trustee May File Proofs of Claim.. . . . . . . . . . . . 57
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons. . . . . . . . . . 59
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . 59
SECTION 5.7 Limitation on Suits. . . . . . . . . . . . . . . . . . . 59
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest. . . . . . . . . 60
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . 61
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . 61
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . 61
SECTION 5.12 Control by Holders of Securities . . . . . . . . . . . . 62
SECTION 5.13 Waiver of Past Defaults. . . . . . . . . . . . . . . . . 62
SECTION 5.14 Undertaking for Costs. . . . . . . . . . . . . . . . . . 63
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . 63
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Rights of Trustee. . . . . . . . . . . . . . . . 64
SECTION 6.2 Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . . . . . . . . 65
SECTION 6.3 May Hold Securities. . . . . . . . . . . . . . . . . . . 65
SECTION 6.4 Money Held in Trust. . . . . . . . . . . . . . . . . . . 66
SECTION 6.5 Compensation and Reimbursement . . . . . . . . . . . . . 66
iv
<PAGE>
PAGE
----
SECTION 6.6 Resignation and Removal; Appointment of Successor. . . . 66
SECTION 6.7 Acceptance of Appointment by Successor . . . . . . . . . 69
SECTION 6.8 Disqualification; Conflicting Interests. . . . . . . . . 70
SECTION 6.9 Corporate Trustee Required; Eligibility. . . . . . . . . 70
SECTION 6.10 Preferential Collection of Claims
Against Company. . . . . . . . . . . . . . . . . . . . 71
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . . . . . . . . 71
SECTION 6.12 Appointment of Authenticating Agent. . . . . . . . . . . 71
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information;
Communications to Holders. . . . . . . . . . . . . . . 74
SECTION 7.2 Reports by Trustee . . . . . . . . . . . . . . . . . . . 76
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE, TRANSFER OR OTHER DISPOSITION
SECTION 8.1 Company May Consolidate, Etc. Only on
Certain Terms. . . . . . . . . . . . . . . . . . . . . 76
SECTION 8.2 Successor Substituted. . . . . . . . . . . . . . . . . . 78
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . . . . . . . 79
SECTION 9.2 Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . 83
SECTION 9.4 Effect of Supplemental Indentures. . . . . . . . . . . . 83
SECTION 9.5 Conformity with Trust Indenture Act. . . . . . . . . . . 83
SECTION 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . . . . . . . . 83
v
<PAGE>
PAGE
----
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 10.2 Maintenance of Office or Agency. . . . . . . . . . . . . 84
SECTION 10.3 Money for Securities Payments to Be
Held in Trust. . . . . . . . . . . . . . . . . . . . . 86
SECTION 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . 88
SECTION 10.5 Existence. . . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 10.6 Purchase of Securities by Company or
Subsidiary . . . . . . . . . . . . . . . . . . . . . . 89
SECTION 10.7 Limitation on Liens. . . . . . . . . . . . . . . . . . . 90
SECTION 10.8 Limitation on Sale and Lease-Back
Transactions . . . . . . . . . . . . . . . . . . . . . 92
SECTION 10.9 Statement by Officers as to Default. . . . . . . . . . . 93
SECTION 10.10 Waiver of Certain Covenants. . . . . . . . . . . . . . . 93
SECTION 10.11 Defeasance of Certain Obligations. . . . . . . . . . . . 93
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . 96
SECTION 11.2 Election to Redeem; Notice to Trustee. . . . . . . . . . 96
SECTION 11.3 Selection by Trustee of Securities to
Be Redeemed. . . . . . . . . . . . . . . . . . . . . . 96
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . 97
SECTION 11.5 Deposit of Redemption Price. . . . . . . . . . . . . . . 98
SECTION 11.6 Securities Payable on Redemption Date. . . . . . . . . . 99
SECTION 11.7 Securities Redeemed in Part. . . . . . . . . . . . . . . 100
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . 100
SECTION 12.2 Satisfaction of Sinking Fund Payments
with Securities. . . . . . . . . . . . . . . . . . . . 101
SECTION 12.3 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . . . . . . . . 102
vi
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PAGE
----
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . . . . . . . . . 102
SECTION 13.2 Call, Notice and Place of Meetings . . . . . . . . . . . 102
SECTION 13.3 Persons Entitled to Vote at Meetings . . . . . . . . . . 103
SECTION 13.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . 104
SECTION 13.5 Determination of Voting Rights; Conduct
and Adjournment Of Meetings. . . . . . . . . . . . . . 105
SECTION 13.6 Counting Votes and Recording Action
of Meetings. . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . 107
SECTION 14.2 Redemption at Option of Holders Upon
a Change in Control of the Company . . . . . . . . . . 107
SECTION 14.3 Notice of Change in Control. . . . . . . . . . . . . . . 108
SECTION 14.4 Deposit of Redemption Price. . . . . . . . . . . . . . . 109
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 Applicability of Article . . . . . . . . . . . . . . . . 109
SECTION 15.2 Exercise of Conversion Privilege . . . . . . . . . . . . 110
SECTION 15.3 No Fractional Shares . . . . . . . . . . . . . . . . . . 111
SECTION 15.4 Adjustment of Conversion Price . . . . . . . . . . . . . 112
SECTION 15.5 Notice of Certain Corporate Actions. . . . . . . . . . . 113
SECTION 15.6 Reservation of Shares of Common Stock. . . . . . . . . . 114
SECTION 15.7 Payment of Certain Taxes Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . 114
SECTION 15.8 Nonassessability . . . . . . . . . . . . . . . . . . . . 114
SECTION 15.9 Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . . . . . . . . . . . 115
SECTION 15.10 Duties of Trustee Regarding Conversion . . . . . . . . . 116
SECTION 15.11 Repayment of Certain Funds Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . 117
vii
<PAGE>
INDENTURE, dated as of April 1, 1994, 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 Chase Manhattan Bank,
N.A., 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 Inden-
ture 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
<PAGE>
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 "controlling" 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
2
<PAGE>
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 forego-
ing 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 certifica-
tion, 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 securi-
ties 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,
3
<PAGE>
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 (l) 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 1934, 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
4
<PAGE>
and who shall have been nominated or elected by a majority of the other Continu-
ing 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.
"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
5
<PAGE>
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.
6
<PAGE>
"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 authen-
ticated 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 obliga-
tions 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
7
<PAGE>
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) Securi-
ties owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor 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 satisfac-
tion of the Trustee the pledgee's right so to act with respect to such Securi-
ties 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 obligor.
"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
8
<PAGE>
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 conduct-
ed 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 the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the
9
<PAGE>
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
trust officer or assistant trust officer, the controller or any assistant
controller 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 install-
ment 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.
10
<PAGE>
"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
11
<PAGE>
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 Obligations 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 or the Trustee,
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 accor-
dance with accepted financial practice.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any applica-
tion 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' Certificate 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
12
<PAGE>
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examina-
tion 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 Person 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 certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate 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 representa-
tions 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
13
<PAGE>
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 applica-
tions, requests, consents, certificates, statements, opinions or other instru-
ments 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 instru-
ment or writing may be proved by the
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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 execu-
tion 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 suffi-
cient.
(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 certifi-
cate 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
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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 trust 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 Securi-
ties 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 Hold-
er, 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,
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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
established 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
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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 given 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 Inden-
ture 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 suffi-
cient 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 suffi-
cient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to
the Company addressed to it
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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 Regis-
tered Securities if in writing and mailed, first-class postage pre-
paid, 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.
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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 Securi-
ties 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 AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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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 specifi-
cally 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.
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ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer Securi-
ties, 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 estab-
lished 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, litho-
graphed 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.
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SECTION 2.2 FORM OF TRUSTEE'S 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.
THE CHASE MANHATTAN BANK, N.A.,
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.
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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 regis-
tered 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."
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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.
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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:
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(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 Securi-
ties 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 Securi-
ties 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 pre-
sentation 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;
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(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 inter-
est payable on any Registered Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of Sec-
tions 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, Secu-
rities 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 pur-
chase Securities of the series, or particular Securities within the
Series, pursuant to any sinking fund or analogous provisions or at the
option of a Holder
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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 converted or exchanged, in whole
or in part;
(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;
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(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 Registrar, 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 Securi-
ties registered in the name of, an 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 13.2 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).
All 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
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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, under its corporate seal reproduced thereon attested by its Secre-
tary 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 hold 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
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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
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the Trustee and issued by the Company in the manner and subject to any condi-
tions 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 deliv-
ered 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 cancel-
lation as
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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 regis-
tered 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 deter-
mine, 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 shall authenticate and
deliver in exchange therefor a like aggregate principal
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amount of definitive Securities of the same series and of like tenor of autho-
rized 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 Deposi-
tary"), for the benefit of Euro-clear and CEDEL S.A., for credit to the respec-
tive 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 speci-
fied 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 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 temporary 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 temporary
global Security to be exchanged; provided, however, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a certifi-
cate 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.2
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
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by Section 3.1, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that definitive Bearer Securi-
ties 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 otherwise
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.A. 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 authen-
ticated and delivered hereunder, except that, unless otherwise specified as
contemplated by section 301, 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
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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 certifi-
cate 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 1002 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 Securities 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 10.2 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated 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
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the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled 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 represent-
ed by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States. Notwithstand-
ing 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 surren-
dered 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
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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 contemplat-
ed 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 perma-
nent 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 Securi-
ties, 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
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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
agency 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 exchang-
es 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
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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
like tenor, PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified or contem-
plated 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 1934, 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) or 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
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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 registra-
tion 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 appertain-
ing 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
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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 obliga-
tion 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, shall 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
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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 regis-
tered 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 Regis-
tered 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 satis-
factory 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 Re-
cord 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 pro-
posed 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
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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 delivery. 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
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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, registra-
tion 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, or in the absence
of a Company Order, may be destroyed by the Trustee.
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 COMPUTATION OF INTEREST.
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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 3.11 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' Certifi-
cate. Nothing in this Section 3.11 shall be construed as prohibiting the
Company from issuing Securities by any means not inconsistent with the provi-
sions 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 dis-
charge 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 Regis-
tered 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
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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 deposit-
ed 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 Securi-
ties 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
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all condi-
tions 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 (1)(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, all 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 deter-
mine, 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
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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 Company's 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 (1)(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 princi-
pal 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
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and payable in accordance with the terms of this Indenture and of such Securi-
ties; 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
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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 condi-
tions 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 Company's 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 satisfacto-
ry 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 condi-
tions 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;
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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 obliga-
tions, 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 4.2 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
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(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 Securi-
ties other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by regis-
tered 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, ar-
rangement, 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 contin-
uance 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, insolven-
cy, 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
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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 Securi-
ties 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 princi-
pal 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 Outstand-
ing Securities of that
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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 pre-
scribed 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 there-
for 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 ENFORCEMENT BY TRUSTEE.
The Company covenants that if,
(1) default is made in the payment of any interest on any
Security of any series when
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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.
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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 other-
wise and irrespective of whether the Trustee shall have 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 (in-
cluding any claim for the reasonable compensation, expenses, disburse-
ments 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
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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 cou-
pons for principal and any premium and interest, respectively.
SECTION 5.7 LIMITATION ON SUITS.
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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 Securi-
ties 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 reason-
able 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.
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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 proceed-
ing 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 5.1 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 appropri-
ate 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
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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 Out-
standing 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 conse-
quences, 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
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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 Identure, 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 attorneys'
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 princi-
pal amount of the Outstanding Securities of any series, or to any suit institut-
ed 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.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may 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 reasonable
security or indemnity against the costs, expenses and liabilities
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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 attor-
neys 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.
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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 reasonable compensation for all services rendered by it here-
under (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 (in-
cluding 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 for,
and to hold it harmless against, any loss, liability or expense in-
curred 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; APPOINTMENT OF SUCCESSOR.
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(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 310(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
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respect to all Securities and the appointment of a successor Trustee or Trust-
ees.
(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 accor-
dance 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 appoint-
ed by the Company or the Holders of Securities of that series and accepted ap-
pointment 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.
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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, trusts 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 (l) 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 trusts here-
under 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
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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.
(d) 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 $50,000,000. 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
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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 obligor).
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 authenticat-
ed, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such au-
thentication 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 AUTHENTICATING 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
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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
Trustee's certificate of authentication such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an Authenticat-
ing 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 pub-
lished. 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 termi-
nate 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 Authenticat-
ing 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
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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 Trustee's certificate of authentication, an alternative certifi-
cate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank, N.A.,
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
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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 Trustee 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 two years after filing, any informa-
tion filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders of Securities (herein referred to as "appli-
cants") apply in writing to the Trustee, and furnish to the Trustee reasonable
proof that
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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 infor-
mation preserved 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 informa-
tion 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
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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 7.2(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.
ARTICLE VIII
CONSOLIDATION, MERGER,
SALE, LEASE, TRANSFER
OR OTHER DISPOSITION
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
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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 consoli-
date 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 corpora-
tion, 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
supplemental 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 Securi-
ties 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 in-
curred by the Company or such Subsidiary at the time of such transac-
tion, 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,
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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 consoli-
dation, 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.
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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 registrable 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 Securi-
ties 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
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(5) to change or eliminate any of the provisions of this Inden-
ture, PROVIDED that any such change or elimination shall become effec-
tive only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is enti-
tled 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 provid-
ing 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 provi-
sion 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 ad-
versely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect.
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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 supplemen-
tal 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; PROVID-
ED, 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(1) 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
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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 concom-
itant 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 Inden-
ture 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.
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SECTION 9.3 EXECUTION 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 Trustee's 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.
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ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of Securi-
ties 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
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surrendered for payment (including payment of any additional amounts payable on
Securities of that 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 Securi-
ties or shall fail to furnish the Trustee with the address thereof, such pre-
sentations 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
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Security (including any additional amounts payable on Securities of such series
pursuant to Section 10.4) shall be made at the office of the Company's 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 princi-
pal 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
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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 Securi-
ties 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
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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 Sec-
tion 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 will
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furnish the Trustee and the Company's 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
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series as shown in The Stock Exchange Daily Official List for the last trading
day preceding the date of purchase.
SECTION 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 "mort-
gages") upon any Timberlands or any Principal Manufacturing Facility now owned
or hereafter acquired, without in any such case effectively providing, concur-
rently with the issuance, assumption or guarantee of such Debt, that the
Securities (together with, if the Company shall so determine, any other indebt-
edness 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 commence-
ment 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
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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 exten-
sions, renewals or replacements) in whole or in part, of any mortgage
referred to in the foregoing clauses (l) 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 improve-
ments 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 Lease-
back Transactions the proceeds of which have been applied in accordance with
clause (b) of Section 10.8), does not at the time exceed 10% of the net tangible
assets of the Company and its consolidated Subsidiaries (as defined in subsec-
tion (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
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recent consolidated balance sheet of the Company and its consolidated Subsidiar-
ies and computed in accordance with generally accepted accounting principles.
(d) For the purposes of this Article X, the following types of transac-
tions, 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 obli-
gated 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 Subsid-
iary 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 con-
structing 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 commer-
cial 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 Trans-
actions"), 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
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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 de-
fault, 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 10.7 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
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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 securi-
ty 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 sub-
paragraph (l) 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 install-
ment of principal (and premium, if any) and interest on the Outstand-
ing 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 accor-
dance 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 6.8 and for purposes of the Trust Indenture Act with respect
to the Securities of any Series;
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(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 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 condi-
tions precedent herein provided for relating to the defeasance contem-
plated 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 Company's option under this Section 10.11
registration is not required under the Investment
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Company Act of 1940, as amended, by the Company, the trust funds represent-
ing 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 Officer's 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 expira-
tion 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
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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 $ 1,000,000
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 REDEMPTION.
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;
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(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 Redemp-
tion Date upon surrender of such Security a new Security in the
principal amount equal to the unredeemed portion will be issued;
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if ap-
plicable, 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) that the redemption is for a sinking fund, if such is the
case; and
(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 conver-
sion.
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 Company's 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
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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 SECURITIES 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 Redemp-
tion 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 apper-
taining 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 accrued 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 office or agency located outside the United States (except as
otherwise provided in Section 10.2) and, unless otherwise specified as contem-
plated by Section 3.1, only upon presentation and surrender of coupons for such
interest; and PROVIDED, FURTHER, that, unless otherwise specified as contemplat-
ed 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
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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 otherwise specified as contem-
plated 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 IN 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 instrument 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 unre-
deemed 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.
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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.
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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
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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 2l 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 repre-
sented by a Book-Entry Security, not less than 20 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 speci-
fied, as the case may be, may determine the time and the place 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
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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 Out-
standing 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 further 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.
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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
affirmative vote of the Holders of 66-2/3% in principal amount of the Outstand-
ing 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
affirmative 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 Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of Securi-
ties 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
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company, bank or banker authorized by Section 1.4 to certify to the holding of
Bearer Securities. Such regulations may provide that written instruments
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 l3.2(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 chal-
lenged as not Outstanding and ruled by the chairman 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 sub-
scribed 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
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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, at least in duplicate, of 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
preserved 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 Article.
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
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through D. 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, upon the deposit of any Security with a Paying Agent together with a
duly signed and completed Notice of Redemption at Holder's 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;
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(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 Redemption Date, are to be surrendered for payment
of the Redemption Price; and
(6) that exercise of the option to elect redemption is irrevoca-
ble.
SECTION 14.1 DEPOSIT OF REDEMPTION PRICE.
On a Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent in immediately available funds (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.
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SECTION 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, accom-
panied 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 certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. Securities surren-
dered 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 conver-
sion during the period from the close of business on any Regular Record Date to
the opening of business on the next succeeding 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 notwithstanding the 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'
Certificate, 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 office or agency at
which such Security is surrendered, 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
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respect of any fractional share of such Common Stock otherwise issuable upon
such conversion. Such conversion shall be deemed to have been effected immedi-
ately 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 entitled 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 unconverted 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 surrendered. If, except for the provisions
of this Section 15.3, any
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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 reporting 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 New 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
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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 postage prepaid,
to each Holder of Securities of such series at its address appearing on the
Security Register 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 distribu-
tion) on its Common Stock payable otherwise 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 sharehold-
ers 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 sharehold-
ers of the Company is required), or of the sale of all or substantial-
ly 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)
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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 securi-
ties, cash or other property deliverable upon such reclassification, consolida-
tion, 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 reserve 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.
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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 adjust-
ments which shall be as nearly equivalent as may be practicable to the adjust-
ments 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 notwith-
standing, if, pursuant to such merger, consolidation or sale, holders of out-
standing 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
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<PAGE>
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 consoli-
dation, 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 consolidation
of another corporation with or into the Company pursuant to which both of the
following conditions are applicable: (i) the Company is the surviving corpora-
tion 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 ad-
justments of the conversion prices applicable with respect thereto, the Trustee
shall be furnished with and may accept the certificate or opinion of an indepen-
dent 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 resolu-
tions 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
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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 con-
version 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
Article III hereof) and which shall not be required for such purposes because of
the conversion of such Securities as provided in this Article 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.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By: ________________________________
Title
[Seal]
Attest:
_________________________
Assistant Secretary
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: ________________________________
Title
[Seal]
Attest:
_____________________________
Assistant Secretary
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<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the ____ day of _____, 1994, 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; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
___________________________________________________
[Seal] Notary Public, State of New York
Qualified in ___________
___________________________________________________
Commission Expires ________________________________
119
<PAGE>
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _____, 1994, before me personally came ____________, to
me known, who, being by me duly sworn, did depose and say that he is _________
of The Chase Manhattan Bank, N.A., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
___________________________________________________
[Seal] Notary Public, State of New York
Qualified in ___________
___________________________________________________
Commission Expires
120
<PAGE>
EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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 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 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
A-1
<PAGE>
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 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 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 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 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
A-2
<PAGE>
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, benefi-
ciary 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 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;
A-3
<PAGE>
(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 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 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, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
A-4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_________________
INTERNATIONAL PAPER COMPANY
[Seal] By ____________________________________
Name:
Attest: 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 an Indenture, dated as of April 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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 exchangeable for
a like aggregate principal amount of Registered Securities of this series and of
like tenor of any authorized denomina-
A-5
<PAGE>
tions, as requested by the Holder 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 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,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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 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 instalments of
interest on this Security whose Stated Maturity is on or prior to such Redemp-
tion 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
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<PAGE>
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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
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 instalments 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 contemplat-
ed 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
A-7
<PAGE>
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
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 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 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 [appro-
priate] 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 redemp-
tion 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 redemp-
tion, 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
A-8
<PAGE>
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 independent counsel, that any payment made outside the United
States by the Company or any of its Paying Agents of the full amount of princi-
pal, [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
- -------------------------------
* Generally this provision will only be applicable if the Securities of the
series bear interest at a fixed rate.
A-9
<PAGE>
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 deter-
mines, 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
A-10
<PAGE>
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 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] Securi-
ties, 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 (calculat-
ed 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
A-11
<PAGE>
at the date of conversion determined as provided in the Indenture, upon surren-
der 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 follow-
ing such Regular Record Date (unless this Security or the portion being convert-
ed 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 afore-
said 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,r 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
A-12
<PAGE>
electing shares) [, assuming if such consolidation, merger or sale is prior to
________, 199_, that this Security was convertible at the time of such consoli-
dation, 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 indebt-
edness 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 Outstand_ing of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified percent-
ages in principal amount of the Securities of each series at the time Outstand-
ing, 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
A-13
<PAGE>
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 registrable 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
A-14
<PAGE>
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 Securi-
ties, insert--The Securities of this series are issuable only in registered
form, without coupons, in denominations of $__________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder surrendering the
same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If the Securities of the Series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-15
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this Security
is submitted for redemption, please
indicate:
1. Principal Amount submitted for
redemption:
U.S.$_________________
2. Amount and denomination of
Registered Securities repre-
senting principal amount of
this Security not submitted
for redemption to be issued:
Amount: U.S.$____________
Denominations:
U.S.$_____________________
(U.S.$5,000 or an integral
multiple thereof)
Note: Exercise of the option to require redemption is irrevocable.
A-16
<PAGE>
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 frac-
tional 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. $_______
Dated:
---------------------
--------------------------
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national
stock exchange if shares of
A-17
<PAGE>
Common Stock are to be delivered,
or Securities to be issued, other
than to and in the name of the
registered owner.
----------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
- ---------------------------- Social Security or other
(NAME) Taxpayer Identification
Number
------------------------------
- ----------------------------
(ADDRESS)
- ----------------------------
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other Securities of the Company.]
A-18
<PAGE>
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, 19__ [,--AND] THE YIELD TO
MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD IS ___________ AND
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF
___________, 19__ TO _______, 19__ IS __% OF THE PRINCIPAL AMOUNT OF THIS
SECURITY].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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 _____________________ [If the Security 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] [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 instalment 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 regis-
tered 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.
B-1
<PAGE>
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]. [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 enforce-
able), 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.] 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
B-2
<PAGE>
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 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 dis-
count], 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 governmental charge];
PROVIDED, HOWEVER, that the foregoing obligation to pay additional amounts will
not apply to any one or more of the following:
B-3
<PAGE>
(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, benefi-
ciary 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 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 [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 Holder's 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 governmental charge;
(d) any estate, inheritance, gift, sales, transfer, personal property
or any similar tax, assessment or other governmental charge;
B-4
<PAGE>
(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 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 beneficia-
ry, 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.]
B-5
<PAGE>
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, 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 under its corporate seal.
Dated:_________________
INTERNATIONAL PAPER COMPANY
[Seal] By
----------------------------
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 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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
B-6
<PAGE>
principal amount to [U.S.]$______]. [If Securities of the series are issuable
as Bearer Securities, insert--The Securities of this series are issuable as
Bearer Securities [, with interest coupons attached,] in the denomination of
U.S.$__________, and as Registered Securities, without coupons, in denominations
of U.S.$__________ and any integral multiple thereof. As provided in the Inden-
ture 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 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 _____________ 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 [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 percentages of the
principal amount): If redeemed [on or before ____________________, ____%, and
if redeemed] during the 12-month period beginning ____________________ of the
years indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
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--
B-7
<PAGE>
(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 Redemp-
tion 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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------------ -----------------------
<S> <C> <C>
</TABLE>
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 [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
B-8
<PAGE>
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].] [Notwith-
standing 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 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 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.
B-9
<PAGE>
[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 avail-
able 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 redemp-
tion 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
- ----------------------
* This provision will only be applicable if the Securities of the series are
interest-bearing and generally only if the Securities bear interest as a
fixed rate.
B-10
<PAGE>
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 Securi-
ties 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
B-11
<PAGE>
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 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, identifica-
tion 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 payment 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
- ---------------------------
* This provision will only be applicable if the Securities of the series are
not to bear interest prior to Maturity.
B-12
<PAGE>
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
applicable) the last day by which the Company may publish any notice of re-
demption. 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 require-
ment, 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 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
B-13
<PAGE>
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 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 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 (calculat-
ed 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 _______, accompa-
nied (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
B-14
<PAGE>
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 afore-
said 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 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 uncon-
B-15
<PAGE>
verted 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 indebt-
edness 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 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
B-16
<PAGE>
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 limita-
tions 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 registrable 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 agent, at the [main]
B-17
<PAGE>
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 $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If the Securities of the series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.]
B-18
<PAGE>
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
B-19
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this Security
is submitted for redemption, please
indicate:
__1. Principal Amount submitted for
redemption:
U.S.$_________________
__2. Amount and denomination of
Registered Securities repre-
senting principal amount of
this Security not submitted
for redemption to be issued:
Amount:
U.S.$____________
Denominations:
U.S.$_____________________
(U.S.$5,000 or an integral
multiple thereof)
B-20
<PAGE>
Note: Exercise of the option to require redemption is irrevocable.
B-21
<PAGE>
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 frac-
tional 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. $_______
Dated:
---------------------
----------------------------------
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national
stock exchange if shares of
B-22
<PAGE>
Common Stock are to be delivered,
or Securities to be issued, other
than to and in the name of the
registered owner.
----------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
- --------------------------- Social Security or other
(NAME) Taxpayer Identification
Number
- --------------------------- ---------------------------
(ADDRESS)
- ---------------------------
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other Securities of the Company.]
B-23
<PAGE>
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY AND
FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO LIMITA-
TIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
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 enforce-
able) at the rate of __% per annum on any overdue principal and premium and on
any overdue installment of interest]. 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 Paying Agent, at the [main] offices of _____ 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
<PAGE>
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 (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 or any coupon apper-
taining hereto 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 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, settlor, benefi-
ciary 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
C-2
<PAGE>
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 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 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, assess-
ment 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
C-3
<PAGE>
owner of any such payment to the extent that a beneficiary or settlor 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 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 and its
possessions.
[Notwithstanding the foregoing, if and so long as a certification, identi-
fication 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 withholding tax or similar charge, the Company may elect, by so stating
in the Determination Notice (as defined in such paragraph), to have the provi-
sions 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
C-4
<PAGE>
of 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 under its corporate seal and coupons bearing the facsimile signature of
[its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated:________, 19__
International Paper Company
[Seal] By _______________________________________
Attest:
________________________
C-5
<PAGE>
[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 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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 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 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 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
C-6
<PAGE>
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
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
----- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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 (ex-
pressed 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,
C-7
<PAGE>
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
and (3) under the circumstances described in the next [two] succeeding para-
graph[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 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 Untied 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 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
C-8
<PAGE>
the principal amount hereof plus accrued interest to the Redemption Date. For
this Security to be submitted for such redemption, the Company must receive a
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 mea-
sures 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 certifi-
cate 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.
C-9
<PAGE>
[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 informa-
tion 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 require-
ment), 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
- ---------------
* Generally this provision will only be applicable if the Securities of the
series bear interest at a fixed rate.
C-10
<PAGE>
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 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 equal to 100% of their
principal amount, together with interest accrued to the date fixed for redemp-
tion, 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
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 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] [Luxem-
bourg] [or] in any [other] required city outside the United States or, if not
practicable, elsewhere in Europe, [and by mail to Holders of Registered Securi-
ties,] not less than 30 nor more than 60 days prior to the date fixed for
redemption, all as provided in the Indenture.
C-11
<PAGE>
[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 (calculat-
ed 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 _______, accompa-
nied (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 follow-
ing such Regular Record Date (unless this Security or the portion being convert-
ed 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 afore-
said 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
C-12
<PAGE>
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,r 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 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
C-13
<PAGE>
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 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 indemni-
ty, 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.
C-14
<PAGE>
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 registrable 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 registra-
tion 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 regis-
tered,] as the owner thereof for all 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.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
C-15
<PAGE>
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.
Dated:____________________
_____________________________________________
Signature
NOTE: EXERCISE OF THE OPTION TO REQUIRE REDEMPTION IS IRREVOCABLE.
C-16
<PAGE>
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 frac-
tional 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. $_______
Dated: ________________________________
___________________________________
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national stock
exchange if shares of
C-17
<PAGE>
Common Stock are to be delivered, or
Securities to be issued, other than
to and in the name of the registered
owner.
___________________________________
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
____________________________________ Social Security or other
(NAME) Taxpayer Identification
Number ____________________________
____________________________________
(ADDRESS)
____________________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for
conversion into other securities of the Company.]
C-18
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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 _________________________________________________
C-19
<PAGE>
[Reverse of Coupon]
*
______________________________
______________________________
______________________________
______________________________
______________________________
- ---------------
* Insert names and addresses of initial Paying Agents located outside the
United States
C-20
<PAGE>
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 LIMITA-
TIONS 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 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 %].
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
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], com-
mencing , 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 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
D-1
<PAGE>
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
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.
[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
D-2
<PAGE>
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 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 [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, benefi-
ciary 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 Holder's present
or former status as a personal holding company, a
D-3
<PAGE>
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 Holder's 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 governmental 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
D-4
<PAGE>
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 beneficia-
ry, 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, identi-
fication 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 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
D-5
<PAGE>
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 governmen-
tal 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 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.
D-6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal 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
[Seal] 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 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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
D-7
<PAGE>
Indenture and subject to certain limitations therein set forth, Bearer Securi-
ties 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 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--(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 percentages of the
principal amount): If redeemed [on or before , %, and if re-
deemed] during the 12-month period beginning of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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
sinking fund or otherwise)] with accrued interest to the Redemption Date;
provided, however, that interest
D-8
<PAGE>
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 other-
wise 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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
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
D-9
<PAGE>
this series as contemplated by Clause [(2)] above as a part of, or in anticipa-
tion 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 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
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 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
D-10
<PAGE>
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 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 informa-
tion 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
- ---------------
* 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.
D-11
<PAGE>
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 Securi-
ties 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 deter-
mines, 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 additional amounts, and as long as the
Company is obligated to pay such additional
D-12
<PAGE>
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, identifi-
cation or other reporting requirement of any kind, the effect of which require-
ment 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
- ---------------
* This provision will only be applicable if the Securities of the series are
not to bear interest prior to Maturity.
D-13
<PAGE>
manner provided below (the "Determination Notice"), in each case stating the
effective date of such certification, identification or other reporting require-
ment, 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 re-
demption. 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 require-
ment, 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 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 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] [Luxem-
bourg] [or] in any [other] required city outside the United States or, if not
practicable, elsewhere in Europe, [and by mail to Holders of Registered Securi-
ties,] not less
D-14
<PAGE>
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 (calculat-
ed 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 _______, accompa-
nied (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 follow-
ing such Regular Record Date (unless this Security or the portion being convert-
ed 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 afore-
said 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
D-15
<PAGE>
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,r 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 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
D-16
<PAGE>
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 Securi-
ties 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 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
D-17
<PAGE>
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-bearing, 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 certain limitations therein set forth,
the transfer of Registered Securities is registrable 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] 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 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
D-18
<PAGE>
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 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.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
D-19
<PAGE>
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.
Dated: ______________________
_________________________________________________
Signature
Note: Exercise of the option to require redemption is irrevocable.
D-20
<PAGE>
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 frac-
tional 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. $_______
Dated: _________________________
______________________________________
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of
D-21
<PAGE>
Common Stock are to be delivered, or
Securities to be issued, other than
to and in the name of the registered
owner.
__________________________________
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
__________________________________ Social Security or other
(NAME) Taxpayer Identification
Number ________________________________
__________________________________
(ADDRESS)
__________________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for
conversion into other securities of the Company.]
D-22
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1954, AS
AMENDED.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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 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 ____________________________________________
D-23
<PAGE>
[Reverse of Coupon]
*
___________________________
___________________________
___________________________
___________________________
___________________________
- ---------------
* Insert names and addresses of initial Paying Agents located outside the
United States.
D-24
<PAGE>
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)(1)(-
v) of the United States Treasury Regulations or is acquiring through such finan-
cial institution, and in either case the financial institution 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 own-
er), the undersigned will not deliver a Security in temporary or definitive
bearer form to the person who signed such
E-1-1
<PAGE>
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 Securi-
ties 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 certifi-
cate 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]
________________________
(Authorized Signatory)
Name:
Title:
E-1-2
<PAGE>
EXHIBIT E.2
[Form of Certificate to Be Given by Euro-Clear
and Cedel 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 above-
captioned Securities (i) that we have received from each of the persons appear-
ing 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 part submitted herewith for exchange 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]
[Cedel S.A.]
By_________________________
<PAGE>
EXHIBIT E.3
[Form of Certificate to Be Given by Euro-Clear and
Cedel 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]
[Cedel S.A.]
By_________________________
<PAGE>
EXHIBIT 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 paragraph hereof, none of the above-cap-
tioned 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
beneficially 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 1.6049-4(c)(1)(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 regardless 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.
E-4-1
<PAGE>
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 certifi-
cate 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]
___________________________
(Authorized Signatory)
Name:
Title:
<PAGE>
EXHIBIT 4.6
- -------------------------------------------------------------------------------
INTERNATIONAL PAPER COMPANY
TO
THE CHASE MANHATTAN BANK, N.A.
Trustee
_____________
Indenture
Dated as of April 1, 1994
_____________
Subordinated Debt Securities
<PAGE>
INTERNATIONAL PAPER COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of April 1, 1994
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 310(a)(1) . . . . . . . . . . . . . . . . . . . . 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.
<PAGE>
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
Authenticating Agent . . . . . . . . . . . . . . . . . . 2
Authorized Newspaper . . . . . . . . . . . . . . . . . . 2
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
Euro-clear . . . . . . . . . . . . . . . . . . . . . . . 5
Event of Default . . . . . . . . . . . . . . . . . . . . 5
Exchange Date. . . . . . . . . . . . . . . . . . . . . . 5
Exercise Period. . . . . . . . . . . . . . . . . . . . . 5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indenture. . . . . . . . . . . . . . . . . . . . . . . . 5
Interest . . . . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date. . . . . . . . . . . . . . . . . . 6
Junior Subordinated Payment. . . . . . . . . . . . . . . 6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . 6
Officers' Certificates . . . . . . . . . . . . . . . . . 6
- ---------------
(1) NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
PAGE
----
Opinon of Counsel. . . . . . . . . . . . . . . . . . . . 6
Original Issue Discount Security . . . . . . . . . . . . 6
Outstanding. . . . . . . . . . . . . . . . . . . . . . . 6
Paying Agent . . . . . . . . . . . . . . . . . . . . . . 8
Person . . . . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment . . . . . . . . . . . . . . . . . . . . 8
Predecessor Security . . . . . . . . . . . . . . . . . . 8
Proceeding . . . . . . . . . . . . . . . . . . . . . . . 8
Redemption Date. . . . . . . . . . . . . . . . . . . . . 8
Redemption Price . . . . . . . . . . . . . . . . . . . . 9
Registered Security. . . . . . . . . . . . . . . . . . . 9
Regular Record Date. . . . . . . . . . . . . . . . . . . 9
Responsible Officer. . . . . . . . . . . . . . . . . . . 9
Securities . . . . . . . . . . . . . . . . . . . . . . . 9
Security Register and
Security Registrar . . . . . . . . . . . . . . . . . . 9
Senior Indebtedness. . . . . . . . . . . . . . . . . . . 9
Special Record Date. . . . . . . . . . . . . . . . . . . 10
Stated Maturity. . . . . . . . . . . . . . . . . . . . . 10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 10
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 11
Trust Indenture Act. . . . . . . . . . . . . . . . . . . 11
United States. . . . . . . . . . . . . . . . . . . . . . 11
United States Alien. . . . . . . . . . . . . . . . . . . 11
U.S. Government Obligations. . . . . . . . . . . . . . . 11
Vice President . . . . . . . . . . . . . . . . . . . . . 12
Yield to Maturity. . . . . . . . . . . . . . . . . . . . 12
SECTION 1.2 Compliance Certificates and Opinions . . . . . . . . . . 12
SECTION 1.3 Form of Documents Delivered to Trustee . . . . . . . . . 13
SECTION 1.4 Acts of Holders. . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.5 Notices, Etc., to Trustee and Company. . . . . . . . . . 18
SECTION 1.6 Notice to Holders of Securities; Waiver. . . . . . . . . 19
SECTION 1.7 Language of Notices, Etc.. . . . . . . . . . . . . . . . 20
SECTION 1.8 Conflict with Trust Indenture Act. . . . . . . . . . . . 20
SECTION 1.9 Effect of Headings and Table of Contents . . . . . . . . 20
SECTION 1.10 Successors and Assigns . . . . . . . . . . . . . . . . . 21
SECTION 1.11 Separability Clause. . . . . . . . . . . . . . . . . . . 21
SECTION 1.12 Benefits of Indenture. . . . . . . . . . . . . . . . . . 21
SECTION 1.13 Governing Law. . . . . . . . . . . . . . . . . . . . . . 21
SECTION 1.14 Legal Holidays . . . . . . . . . . . . . . . . . . . . . 21
ii
<PAGE>
PAGE
----
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. . . . . . . . . . . . . . . . . . . . . 22
SECTION 2.2 Form of Trustee's Certificate of Authentication. . . . . 23
SECTION 2.3 Securities in Global Form. . . . . . . . . . . . . . . . 23
SECTION 2.4 Form of Legend for Book-Entry Securities . . . . . . . . 24
SECTION 2.5 Form of Conversion Notice. . . . . . . . . . . . . . . . 25
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series . . . . . . . . . . 26
SECTION 3.2 Denominations. . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . 31
SECTION 3.4 Temporary Securities . . . . . . . . . . . . . . . . . . 33
SECTION 3.5 Registration, Registration of Transfer and Exchange. . . 36
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities and Coupons . . . . . . . . . . . . . . . . 41
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . 42
SECTION 3.8 Persons Deemed Owners. . . . . . . . . . . . . . . . . . 44
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 3.10 Computation of Interest. . . . . . . . . . . . . . . . . 45
SECTION 3.11 Electronic Security Issuance . . . . . . . . . . . . . . 45
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. . . . . . . . . 46
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . 47
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series . . . . . . . . . . . . . . . 48
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. . . . . . . . . . . . . . . . . . . . 51
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . 53
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 5.4 Trustee May File Proofs of Claim.. . . . . . . . . . . . 55
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities or Coupons . . . . . . . . . . . . . . . . 57
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . 57
SECTION 5.7 Limitation on Suits. . . . . . . . . . . . . . . . . . . 57
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . 58
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . 59
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . 59
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . 59
SECTION 5.12 Control by Holders of Securities . . . . . . . . . . . . 59
SECTION 5.13 Waiver of Past Defaults. . . . . . . . . . . . . . . . . 60
SECTION 5.14 Undertaking for Costs. . . . . . . . . . . . . . . . . . 60
SECTION 5.15 Waiver of Stay or Extension Laws . . . . . . . . . . . . 61
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Rights of Trustee. . . . . . . . . . . . . . . . 61
SECTION 6.2 Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 6.3 May Hold Securities. . . . . . . . . . . . . . . . . . . 63
SECTION 6.4 Money Held in Trust. . . . . . . . . . . . . . . . . . . 63
SECTION 6.5 Compensation and Reimbursement . . . . . . . . . . . . . 63
SECTION 6.6 Resignation and Removal; Appointment of Successor. . . . 64
SECTION 6.7 Acceptance of Appointment by Successor . . . . . . . . . 66
SECTION 6.8 Disqualification; Conflicting Interests. . . . . . . . . 67
SECTION 6.9 Corporate Trustee Required; Eligibility. . . . . . . . . 67
SECTION 6.10 Preferential Collection of Claims Against Company. . . . 68
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business. . . . . . . . . . . . . . . . . . . . . . 68
SECTION 6.12 Appointment of Authenticating Agent. . . . . . . . . . . 68
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information; Communications to Holders . 71
SECTION 7.2 Reports by Trustee . . . . . . . . . . . . . . . . . . . 73
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ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE
TRANSFER OR OTHER DISPOSITION
SECTION 8.1 Company May Consolidate, Etc. Only on Certain Terms. . . 73
SECTION 8.2 Successor Substituted. . . . . . . . . . . . . . . . . . 74
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . 75
SECTION 9.2 Supplemental Indentures with Consent of Holders. . . . . 76
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . 78
SECTION 9.4 Effect of Supplemental Indentures. . . . . . . . . . . . 78
SECTION 9.5 Conformity with Trust Indenture Act. . . . . . . . . . . 79
SECTION 9.6 Reference in Securities to Supplemental Indentures . . . 79
SECTION 9.7 Subordination Unimpaired . . . . . . . . . . . . . . . . 79
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . 79
SECTION 10.2 Maintenance of Office or Agency. . . . . . . . . . . . . 80
SECTION 10.3 Money for Securities Payments to Be Held in Trust. . . . 82
SECTION 10.4 Additional Amounts . . . . . . . . . . . . . . . . . . . 83
SECTION 10.5 Existence. . . . . . . . . . . . . . . . . . . . . . . . 84
SECTION 10.6 Purchase of Securities by Company or Subsidiary. . . . . 85
SECTION 10.7 Statement by Officers as to Default. . . . . . . . . . . 85
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . . . . . . . . . . . 85
SECTION 11.2 Election to Redeem; Notice to Trustee. . . . . . . . . . 85
SECTION 11.3 Selection by Trustee of Securities to Be Redeemed. . . . 86
SECTION 11.4 Notice of Redemption . . . . . . . . . . . . . . . . . . 87
SECTION 11.5 Deposit of Redemption Price. . . . . . . . . . . . . . . 88
SECTION 11.6 Securities Payable on Redemption Date. . . . . . . . . . 88
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SECTION 11.7 Securities Redeemed in Part. . . . . . . . . . . . . . . 89
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . . . . . . . . . 90
SECTION 12.2 Satisfaction of Sinking Fund Payments with Securities. . 90
SECTION 12.3 Redemption of Securities for Sinking Fund. . . . . . . . 91
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be Called. . . . . . . . 91
SECTION 13.2 Call, Notice and Place of Meetings . . . . . . . . . . . 91
SECTION 13.3 Persons Entitled to Vote at Meetings . . . . . . . . . . 92
SECTION 13.4 Quorum; Action . . . . . . . . . . . . . . . . . . . . . 93
SECTION 13.5 Determination of Voting Rights; Conduct and
Adjournment Of Meetings. . . . . . . . . . . . . . . . 94
SECTION 13.6 Counting Votes and Recording Action of Meetings. . . . . 95
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 Applicability of Article . . . . . . . . . . . . . . . . 96
SECTION 14.2 Redemption at Option of Holders Upon a Change in
Control of the Company . . . . . . . . . . . . . . . . 96
SECTION 14.3 Notice of Change in Control. . . . . . . . . . . . . . . 97
SECTION 14.4 Deposit of Redemption Price. . . . . . . . . . . . . . . 97
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 Applicability of Article . . . . . . . . . . . . . . . . 98
SECTION 15.2 Exercise of Conversion Privilege . . . . . . . . . . . . 98
SECTION 15.3 No Fractional Shares . . . . . . . . . . . . . . . . . . 100
SECTION 15.4 Adjustment of Conversion Price . . . . . . . . . . . . . 100
SECTION 15.5 Notice of Certain Corporate Actions. . . . . . . . . . . 101
SECTION 15.6 Reservation of Shares of Common Stock. . . . . . . . . . 102
SECTION 15.7 Payment of Certain Taxes Upon Conversion . . . . . . . . 102
SECTION 15.8 Nonassessability . . . . . . . . . . . . . . . . . . . . 103
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SECTION 15.9 Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . . . . . . . . . . . 103
SECTION 15.10 Duties of Trustee Regarding Conversion . . . . . . . . . 104
SECTION 15.11 Repayment of Certain Funds Upon Conversion . . . . . . . 105
ARTICLE XVI
SUBORDINATION OF SECURITIES
SECTION 16.1 Securities Subordinate to Senior Indebtedness. . . . . . 105
SECTION 16.2 Payment Over of Proceeds Upon Dissolution, Etc . . . . . 105
SECTION 16.3 Prior Payment to Senior Indebtedness Upon
Acceleration of Securities . . . . . . . . . . . . . . 107
SECTION 16.4 No Payment When Senior Indebtedness in Default . . . . . 108
SECTION 16.5 Payment Permitted If No Default. . . . . . . . . . . . . 109
SECTION 16.6 Subrogation to Rights of Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 109
SECTION 16.7 Provisions Solely to Define Relative Rights. . . . . . . 110
SECTION 16.8 Trustee to Effectuate Subordination. . . . . . . . . . . 111
SECTION 16.9 No Waiver of Subordination Provisions. . . . . . . . . . 111
SECTION 16.10 Notice to Trustee. . . . . . . . . . . . . . . . . . . . 112
SECTION 16.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. . . . . . . . . . . . . . . . . . . 113
SECTION 16.12 Trustee Not Fiduciary For Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 113
SECTION 16.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights . . . . . . . . . . . 113
SECTION 16.14 Article Applicable to Paying Agents. . . . . . . . . . . 114
SECTION 16.15 Defeasance of This Article Sixteen . . . . . . . . . . . 114
SECTION 16.16 Certain Conversions Deemed Payment . . . . . . . . . . . 114
vii
<PAGE>
INDENTURE, dated as of April 1, 1994, 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 Chase Manhattan Bank,
N.A., 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 Inden-
ture to provide for the issuance from time to time of its unsecured
subordinated 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
<PAGE>
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 "controlling" and "controlled" have meanings correlative to the
foregoing.
"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,
2
<PAGE>
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 publica-
tions are required to be made in Authorized Newspapers, the successive publica-
tions 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 certifica-
tion, 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 securi-
ties 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 (l) 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
3
<PAGE>
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 1934, 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.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
4
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"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.
"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.
5
<PAGE>
"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.
"Junior Subordinated Payment" has the meaning specified in Section 16.2.
"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;
6
<PAGE>
(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 authen-
ticated 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 obliga-
tions 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 obligor 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,
7
<PAGE>
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 satisfac-
tion of the Trustee the pledgee's right so to act with respect to such Secu-
rities 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 obligor.
"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 mutilat-
ed, 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.
"Proceeding" has the meaning specified in Section 16.2.
"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.
8
<PAGE>
"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 day is a Business
Day.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller 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.
"Senior Indebtedness" means all amounts due on any obligations in connec-
tion with any of the following, whether outstanding at the date of execution of
the Indenture or thereafter incurred or created: (a) indebtedness, obligations
and other liabilities (contingent or otherwise) of the Company for money bor-
rowed, or evidenced by bonds, debentures, notes or similar instruments; (b)
reimbursement obligations and other liabilities (contingent or otherwise) of the
Company with respect to letters of
9
<PAGE>
credit, bankers' acceptances issued for the account of the Company or with
respect to interest rate protection agreements or currency exchange or purchase
agreements; (c) obligations and liabilities (contingent or otherwise) in
respect of leases by the Company as lessee which, in conformity with generally
accepted accounting principles, are accounted for as capitalized lease obliga-
tions on the balance sheet of the Company; (d) all direct or indirect guaran-
tees or similar agreements in respect of, and obligations or liabilities
(contingent or otherwise) to purchase or otherwise acquire or otherwise to
assure a creditor against loss of the Company in respect of, indebtedness,
obligations or liabilities of another Person described in clauses (a) through
(c); (e) any indebtedness described in clauses (a) through (d) secured by any
mortgage, pledge, lien or other encumbrance existing on property which is owned
or held by the Company, regardless of whether the indebtedness secured thereby
shall have been assumed by the Company; and (f) any and all deferrals, renew-
als, extensions and refundings of, or amendments, modifications or supplements
to, any indebtedness, obligation or liability of the kind described in clauses
(a) through (e); unless in any case in the instrument creating or evidencing
such indebtedness, obligation, liability, guaranty, assumption, deferral,
renewal, extension or refunding, it is provided that such indebtedness, obliga-
tion, liability, guaranty, assumption, deferral, renewal, extension or refunding
involved is not senior in right of payment to the Securities or that such
indebtedness is pari passu with or junior to the Securities.
"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 install-
ment 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
10
<PAGE>
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
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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 Obliga-
tions 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 or the Trustee,
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 accor-
dance with accepted financial practice.
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any applica-
tion 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' Certificate 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 Comapny 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:
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(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 Person 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 certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate 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 representa-
tions 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
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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 applica-
tions, requests, consents, certificates, statements, opinions or other instru-
ments 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.
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(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 certifi-
cate 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
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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 trust 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 Hold-
er, 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
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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 established 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
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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 requi-
site 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 given 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
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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 Regis-
tered Securities if in writing and mailed, first-class postage pre-
paid, 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.
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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 Securi-
ties 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 AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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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 specifi-
cally 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.
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ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer Securi-
ties, 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 estab-
lished 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, litho-
graphed 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.
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SECTION 2.2 FORM OF TRUSTEE'S 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.
The Chase Manhattan Bank, N.A.,
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.
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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 regis-
tered 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."
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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 within
Exhibits A, B, C and D hereto.
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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);
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(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 deliv-
ered 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 hereun-
der);
(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
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interest shall accrue, the Interest Payment Dates on which any such inter-
est 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 Securi-
ties 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 particular 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
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prices (including adjustments thereto) at which any Securities of the
series shall be converted or exchanged, in whole or in part;
(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 Registrar, 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,
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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, an 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 13.2 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).
Except as otherwise specified herein, the Securities shall be subordinated
and subject in right of payment to the prior terms of the Senior Indebtedness as
provided in Article XVI.
All 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 deliv-
ered 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
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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, under its corporate seal reproduced thereon 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 hold 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
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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 princi-
ples.
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
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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
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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 shall 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 Deposi-
tary"), 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 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 temporary 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
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temporary global Security to be exchanged; provided, however, that, unless
otherwise 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.2 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 otherwise
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.A. 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
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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 301, 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 1002 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 Securities 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 10.2 for such purpose in a Place of Payment for such series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated 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.
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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 entitled 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
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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
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at such office or agency on the relevant Interest Payment Date, or (ii) any Spe-
cial Record Date and before the opening of business at such office or agency 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
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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 like tenor, PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise 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 regis-
tered 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 1934, 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) or 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.
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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.
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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, shall 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
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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 pro-
posed 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
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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 delivery. 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 cancel-
lation 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
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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, or in the absence of a Company Order, may be destroyed by the
Trustee.
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 Deposi-
tory 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 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 3.11 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 provi-
sions of this Indenture.
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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 dis-
charge 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
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(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 (1)(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, all 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 deter-
mine, 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.
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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 Company's 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 Re-
quest, 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
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(ii) of this subparagraph (1)(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 certif-
ication 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) at the time of such deposit: (A) no default in the payment
of principal of (or premium, if any) or interest on any Senior
Indebtedness shall have occurred and be continuing or (B) no other
event of default with respect to any Senior Indebtedness shall have
occurred and be continuing and shall have
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resulted in such Senior Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise become due and
payable, or, in the case of either clause (A) or clause (B) above, each
such default shall have been cured or waived or shall have ceased to exist;
(6) 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;
(7) 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
(8) 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 Company's 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
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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 4.2 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
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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
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(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
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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 pre-
scribed 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 ac-
celeration, 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 ENFORCEMENT 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
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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
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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 have 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 neces-
sary or advisable in order to have the claims of the Trustee (includ-
ing 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 af-
fecting 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.
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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 cou-
pons 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
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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 reason-
able 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.
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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 deter-
mined 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 appropri-
ate 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
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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 attorneys'
fees, against any party litigant in such suit, having due regard to the merits
and good faith of the claims or
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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 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
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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 reasonable
security or indemnity 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.
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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 reasonable compensation for all services rendered by it here-
under (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
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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 for,
and to hold it harmless against, any loss, liability or expense in-
curred 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; APPOINTMENT 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 310(a)
of the Trust Indenture Act and shall fail to resign after written
request therefor by the Company or by any such Holder, or
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(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 accor-
dance 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
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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, trusts 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 (l) 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
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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, it being understood that nothing herein or in such supplemental inden-
ture 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.
(d) 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 $50,000,000. If such Person publishes
reports of condition at least annually, pursuant to law or to
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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 obligor).
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 AUTHENTICATING 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
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by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
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 pub-
lished. 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.
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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 Trustee's certificate of authentication, an alter-native
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.
The Chase Manhattan Bank, N.A.,
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 Opin-
ion 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.
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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 Trustee 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 two 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 elec-
tion, 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 infor-
mation preserved at the
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time by the Trustee in accordance with Section 7.2(a), and as to the ap-
proximate 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 7.2(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).
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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.
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 consoli-
date 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 corpora-
tion, 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
supplemental 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
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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 in-
terest 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
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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 registrable 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 facili-
tate the issuance of Securities in uncertificated form, PROVIDED that
any such action shall not adversely affect the interests of the
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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 establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 2.1 and 3.1; or
(7) 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
(8) 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
(9) 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 ad-
versely 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
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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 Inden-
ture; 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(1) 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 modify the provisions of the Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders, 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
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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
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 EXECUTION 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 Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
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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.
SECTION 9.7 SUBORDINATION UNIMPAIRED.
No provision in any supplemental indenture that effects the superior
position of the holders of Senior Indebtedness shall be effective against
holders of Senior Indebtedness.
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
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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 that 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
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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 Company's 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
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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,
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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 Sec-
tion to the extent that, in such context additional
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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 will furnish the Trustee and the Company's 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 pay-
ment 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
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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.
SECTION 10.7 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 de-
fault, specifying all such defaults and the nature and status thereof of which
they may have knowledge.
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 Officer's 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
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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 $ 1,000,000 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.
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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 REDEMPTION.
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 Redemp-
tion Date upon surrender of such Security a new Security in the
principal amount equal to the unredeemed portion will be issued;
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security to be redeemed and, if ap-
plicable, 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; and
(6) 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
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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 Company's 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 SECURITIES 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 accrued 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 office 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
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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 otherwise specified as contemplated by Section 3.1 only upon presen-
tation 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 IN 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 instrument 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.
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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
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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
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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 2l
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 20 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 speci-
fied, as the case may be, may determine the time and the place 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
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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 further 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
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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 affirmative vote 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 affirmative 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 Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders 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 1.4 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments 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 l3.2(b), in which
case the Company
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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 chairman 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, at least in
duplicate, of 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
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copy shall be delivered to the Company, and another to the Trustee to be
preserved 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 Article.
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 issuable 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
Holder's 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.
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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 Redemption Date, are to be surrendered 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.
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On a Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent in immediately available funds (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.
SECTION 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, accom-
panied 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 certificates 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 satisfac-
tory 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 succeeding 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 notwithstanding the con-
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version 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
Resolu tion 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 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 office
or agency at which such Security is surrendered, 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 entitled 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
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denominations, in aggregate principal amount equal to the unconverted 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 surrendered. 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 reporting 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 New 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
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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 postage prepaid, to each Holder of Securities of
such series at its address appearing on the Security Register and to any con-
version 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 otherwise 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
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(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 speci-
fied, 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 reserve 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
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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
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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 consolidation of another corporation with or
into the Company pursuant to which both of the following conditions are appli-
cable: (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 ad-
justments 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
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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 in-
strument 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
Article III hereof) and which shall not be required for such purposes because of
the conversion of such Securities as provided in this Article XV shall after
such conversion be repaid to the Company by the Trustee upon the Company's
written request.
ARTICLE XVI
SUBORDINATION OF SECURITIES
SECTION 16.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article, indebtedness represented by
the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Indebtedness.
SECTION 16.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, arrangement, reorganization, debt restructuring or
other similar case or proceeding in connection with any insolvency or bankruptcy
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proceeding, relative to the Company or to its assets, or (b) any liquidation,
dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshalling of assets and liabilities of
the Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Proceeding") the holders
of Senior Indebtedness shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Indebtedness, before
the Holders of the Securities are entitled to receive any payment or distribu-
tion of any kind or character, whether in cash, property or securities
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company subordinated to the
payment of the Securities, such payment or distribution being hereinafter
referred to as "Junior Subordinated Payment"), on account of principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
other acquisition of Securities by the Company or any Subsidiary and to that end
the holders of Senior Indebtedness shall be entitled to receive, for application
to the payment thereof, any payment or distribution of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, which may be payable or deliverable in respect of the Securities in any
such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any Junior Subordinated
Payment, before all Senior Indebtedness is paid in full or payment thereof is
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Indebtedness, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness
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in full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness. Any taxes that have been withheld or de-
ducted from any payment or distribution in respect of the Securities, or any
taxes that ought to have been withheld or deducted from any such payment or
distribution that have been remitted to the relevant taxing authority, shall not
be considered to be an amount that the Trustee or the Holder of any Security re-
ceives for purposes of this Section.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation provided for by a plan of
reorganization or readjustment which securities are subordinated in right of
payment to all then outstanding Senior Indebtedness to substantially the same
extent as the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article VIII shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which ac-
quires by sale such properties and assets as an entirety, as the case may be,
shall, as a part of such consolidation, merger, or sale comply with the
conditions set forth in Article VIII.
SECTION 16.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION OF
SECURITIES.
In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of the Senior Indebtedness
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Indebtedness, or provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior In-
debtedness, before the Holders of the Securities are entitled to receive any
payment (including any payment which may be payable by reason of the
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payment of any other indebtedness of the Company being subordinated to the pay-
ment of the Securities) by the Company on account of the principal of (or
premium, if any) or interest on the Securities or on account of the purchase or
other acquisition of Securities by the Company or any Subsidiary; PROVIDED,
HOWEVER, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article XII by delivering and crediting
pursuant to Section 12.2 Securities which have been acquired (upon redemption or
otherwise) prior to such declaration of acceleration or which have been convert-
ed pursuant to Article XV.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with
respect to which Section 12.2 would be applicable.
SECTION 16.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness, or in the event that any event of default with respect to any
Senior Indebtedness shall have occurred and be continuing and shall have result-
ed in such Senior Indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, unless and
until such event of default shall have been cured or waived or shall have ceased
to exist and such acceleration shall have been rescinded or annulled, or (b) in
the event any judicial proceeding shall be pending with respect to any such
default in payment or such event of default, then no payment (including any pay-
ment which may be payable by reason of the payment of any other indebtedness of
the Company being subordinated to the payment of the Securities) shall be made
by the Company on account of principal of (or premium, if any) or interest on
the Securities or on account of the purchase or other acquisition of Securities
by the Company or any Subsidiary; PROVIDED, HOWEVER, that nothing in this Sec-
tion shall prevent the satisfaction of any sinking fund payment in accordance
with Article XII by delivering and crediting pursuant to Section 12.2 Securities
which have been acquired (upon
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redemption or otherwise) prior to such default in payment or event of default or
which have been converted pursuant to Article XV.
In the event that, notwithstanding the foregoing, the Company shall make
any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment with respect
to which Section 16.2 would be applicable.
SECTION 16.5 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in any
of the Securities shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 16.2 or under the conditions
described in Sections 16.3 and 16.4, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 16.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness, or the provision
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated to
the Senior Indebtedness and is entitled to like rights of subrogation by reason
of any payments or distributions made to holders of such Senior Indebtedness) to
the rights of the
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holders of such Senior Indebtedness to receive payments and distributions of
cash, property and securities applicable to the Senior Indebtedness until the
principal of (and premium, if any) and interest on the Securities shall be paid
in full. If the Trustee or the Holders of the Securities are not for any reason
entitled to be subrogated to the rights of holders of Senior Indebtedness in
respect of such payment or distribution, then the Trustee or the Holders of the
Securities may require each holder of Senior Indebtedness to whom any such
payment or distribution is made as a condition to such payment or distribution
to assign its Senior Indebtedness to the extent of such payment or distribution
and all rights with respect thereto to the Trustee on behalf of the Holders.
Such assignment shall not be effective until such time as all Senior
Indebtedness has been paid in full or payment thereof provided for. For
purposes of such subrogation or assignment, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, be deemed to be a
payment or distribution by the Company to or on account of the Senior
Indebtedness.
SECTION 16.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the purpose
of defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Indebtedness on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness, and the Holders of the Securities, the obligations of the
Company, which are absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, are intended to rank
equally with all other general unsecured obligations of the Company), to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other than
the holders of Senior Indebtedness; or (c) prevent the Trustee or
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the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture including, without limitation,
filing and voting claims in any Proceeding, subject to the rights, if any, under
this Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 16.8 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by its acceptance thereof authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 16.9 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities, and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or other-
wise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness;
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and (iv) exercise or refrain from exercising any rights against the Company and
any other Person.
SECTION 16.10 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to the Trustee of any fact
known to the Company which would prohibit the making of any payment to or by the
Trustee in respect of the Securities. Notwithstanding the provisions of this
Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee, agent or
representative therefor; and, prior to the receipt of any such written notice,
the Trustee, subject to the provisions of Section 601, shall be entitled in all
respects to assume that no such facts exist; PROVIDED, HOWEVER, that if the
Trustee shall not have received the notice provided for in this Section at least
two Business Days prior to the date upon which by the terms hereof any money may
become payable for any purpose (including, without limitation, the payment of
the principal of (and premium, if any) or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within two Business Days
prior to such date.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Person representing himself or herself to be a holder of Senior
Indebtedness (or a trustee, agent or representative therefor) to establish that
such notice has been given by a holder of Senior Indebtedness (or a trustee,
agent or representative therefor). In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any
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payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 16.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee and the Holders of the Securities shall be entitled to
rely upon any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 16.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and shall
not be liable to any such holders if it shall in good faith mistakenly pay over
or distribute to Holders of Securities or to the Company or to any other Person
cash, property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 16.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article with respect to any Senior Indebtedness which may at
any time be held by it, to the same extent as any other holder of Senior Indebt-
edness, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.5
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SECTION 16.14 ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
SECTION 16.15 DEFEASANCE OF THIS ARTICLE SIXTEEN.
The subordination of the Securities provided by this Article XVI is
expressly made subject to the provisions for defeasance or covenant defeasance
in Section 4.3 or Section 10.11, as the case maybe and, anything herein to the
contrary notwithstanding, upon the effectiveness of any such defeasance or cove-
nant defeasance, the Securities then outstanding shall thereupon cease to be
subordinated pursuant to this Article XVI.
SECTION 16.16 CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article XV
shall not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest on Securities or on account of the
purchase or other acquisition of Securities, and (b) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of the
principal of such security. For the purposes of this Section, the term "junior
securities" means (i) shares of any stock of any class of the Company and (ii)
securities of the Company which are subordinated in right of payment to all
Senior Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Indebtedness and the Holders of the Securities, the right,
which is absolute and
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unconditional, of the Holder of any Security to convert such Security in accor-
dance with Article XV.
_______________
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By _______________________________________________
[Seal]
Attest:
_________________________
Assistant Secretary
THE CHASE MANHATTAN BANK, N.A.
By _______________________________________________
[Seal]
Attest:
_____________________________
Assistant Secretary
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STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the ____ day of _______, 1994, 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; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
__________________________________________________
[Seal] Notary Public, State of New York
Qualified in ___________
__________________________________________________
Commission Expires________________________________
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _______, 1994, before me personally came ____________,
to me known, who, being by me duly sworn, did depose and say that he is
____________ of The Chase Manhattan Bank, N.A., one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
__________________________________________________
[Seal] Notary Public, State of New York
Qualified in ___________
__________________________________________________
Commission Expires _______________________________
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EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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 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 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
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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 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 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 New York (so long as the
Company has received proper transfer instructions in writing)].
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints
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the Trustee his attorney-in-fact for any and all such purposes.
[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, benefi-
ciary 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 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
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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 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.]
A-4
<PAGE>
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, 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 under its corporate seal.
Dated:_________________
INTERNATIONAL PAPER COMPANY
[Seal] By ____________________________________________
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 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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
A-5
<PAGE>
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 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 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 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,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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 100%
A-6
<PAGE>
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 instalments 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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
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;
A-7
<PAGE>
PROVIDED, HOWEVER, that instalments 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
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 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 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
A-8
<PAGE>
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 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
- ---------------
* Generally this provision will only be applicable if the Securities of the
series bear interest at a fixed rate.
A-9
<PAGE>
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 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
A-10
<PAGE>
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.]
[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 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
A-11
<PAGE>
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-12
<PAGE>
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 the entire
indebtedness of this Security 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
A-13
<PAGE>
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 registrable in the Security Register,
upon
A-14
<PAGE>
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 $__________ and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If the Securities of the Series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by
A-15
<PAGE>
and construed in accordance with the laws of the State of New York.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-16
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this Security is submitted for
redemption, please indicate:
1. Principal Amount submitted for redemption:
U.S.$_________________
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.$5,000 or an integral multiple thereof)
Note: Exercise of the option to require redemption is irrevocable.
A-17
<PAGE>
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. $_______
Dated: ---------------------------
--------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of
A-18
<PAGE>
Common Stock are to be delivered, or
Securities to be issued, other than
to and in the name of the registered
owner.
------------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
_____________________________________ Social Security or other
(NAME) Taxpayer Identification
Number _____________________________
_____________________________________
(ADDRESS)
_____________________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other securities of the Company.]
A-19
<PAGE>
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, 19__ [,--AND] THE YIELD TO
MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD IS ___________].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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 _____________________ [If the Security 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] [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 instalment 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.
B-1
<PAGE>
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]. [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
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.] 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
B-2
<PAGE>
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 New York (so long as the Company has
received proper transfer instructions in writing)].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
[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
B-3
<PAGE>
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 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, benefi-
ciary 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 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 [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 Holder's 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
B-4
<PAGE>
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 [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
B-5
<PAGE>
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 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 under its corporate seal.
Dated:_________________
INTERNATIONAL PAPER COMPANY
[Seal] By ____________________________________________
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 _______, 1994 (herein
B-6
<PAGE>
called the "Indenture"), between the Company and [ ], 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.]$______]. [If Securities of the series are
issuable as Bearer Securities, insert--The Securities of this series are
issuable as Bearer Securities [, with interest coupons attached,] in the
denomination of U.S.$__________, 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 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 ex-
changed 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 _____________ 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 [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 percentages of the
principal amount): If redeemed [on or before ____________________, ____%, and
if redeemed] during the 12-month period beginning ____________________ of the
years indicated,
B-7
<PAGE>
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
<S> <C> <C> <C>
</TABLE>
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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ------------ -------------------
<S> <C> <C>
</TABLE>
B-8
<PAGE>
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 [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 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 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
B-9
<PAGE>
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 Secu-
rity. [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 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 stating that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that
B-10
<PAGE>
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
- ---------------
* 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.
B-11
<PAGE>
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 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
- ---------------
* This provision will only be applicable if the Securities of the series are
not to bear interest prior to Maturity.
B-12
<PAGE>
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 requirement (a) which would not be
applicable to a payment 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 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 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 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
B-13
<PAGE>
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 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 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 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
B-14
<PAGE>
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 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
B-15
<PAGE>
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 the entire
indebtedness of this Security upon compliance by the Company with certain condi-
tions 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
B-16
<PAGE>
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 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
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
B-17
<PAGE>
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 registrable 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 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 issuable as Bearer Securities,
insert--The Securities of this series are issuable only in registered form,
without coupons, in denominations of $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any
B-18
<PAGE>
agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
[If the Securities of the series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
B-19
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated:___________________________
______________________________
Signature
If only a portion of this Security is
submitted for redemption, please indicate:
__1. Principal Amount submitted for
redemption:
U.S.$_________________
__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.$5,000 or an integral multiple
thereof)
B-20
<PAGE>
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. $_______
Dated: ____________________________
____________________________________
Signature(s) must be guaranteed by a
commercial bank
B-21
<PAGE>
or trust company or a member firm of
a national stock exchange if shares
of Common Stock are to be delivered,
or Securities to be issued, other
than to and in the name of the
registered owner.
___________________________________
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
_____________________________________ Social Security or other
(NAME) Taxpayer Identification
Number ____________________________
_____________________________________
(ADDRESS)
_____________________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other securities of the Company.]
B-22
<PAGE>
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY AND
FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
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 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 Paying Agent, at the [main] offices of _____
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
<PAGE>
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 (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 indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such aaction as may be necessary or appropriate to effectyuate the subordination
so provided and (c) appoints the Trustee his attorney-in-fact for any and all
such purposes.
The Company will pay to the Holder of this Security or any coupon
appertaining hereto 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 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
C-2
<PAGE>
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, benefi-
ciary 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 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 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, as-
sessment 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
C-3
<PAGE>
(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 settlor 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 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 and its possessions.
[Notwithstanding the foregoing, if and so long as a certification,
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 withholding 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
C-4
<PAGE>
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 of 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 under its corporate seal and coupons bearing the facsimile signature of
[its Treasurer] [one of its Assistant Treasurers] to be annexed hereto.
Dated:________, 19__
International Paper Company
[Seal] By ______________________________
Attest:
________________________
C-5
<PAGE>
[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 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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 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 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 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
C-6
<PAGE>
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
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ----------- ---- ----------
<S> <C> <C> <C>
</TABLE>
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,
C-7
<PAGE>
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ---------------------
<S> <C> <C>
</TABLE>
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,
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 Untied 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 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%
C-8
<PAGE>
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 a
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 mea-
sures 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.
C-9
<PAGE>
[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
- -----------------------------
* Generally this provision will only be applicable if the Securities of the
series bear intrest at a fixed rate.
C-10
<PAGE>
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 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 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
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 Ireland]
[the Luxembourg Stock Exchange ] [or] any [other] stock exchange located outside
the United States and such stock exchange shall so require, in [London] [Luxem-
bourg] [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.
C-11
<PAGE>
[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
C-12
<PAGE>
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,r 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 amortized into other securities
of the Company, specify 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
C-13
<PAGE>
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 Holders of specified
percentages in principal amount of the Securities of each series at the
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
C-14
<PAGE>
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 registrable 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 registra-
tion 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 regis-
tered,] as the owner thereof for all 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.
C-15
<PAGE>
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 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.
Dated:____________________
_____________________________
Signature
NOTE: EXERCISE OF THE OPTION TO REQUIRE REDEMPTION IS IRREVOCABLE.
C-16
<PAGE>
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. $_______
Dated:
---------------------
---------------------------------
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national
stock exchange if shares of
C-17
<PAGE>
Common Stock are to be delivered,
or Securities to be issued, other
than to and in the name of the
registered owner.
----------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
- ------------------------- Social Security or other
(NAME) Taxpayer Identification
- ------------------------- Number ___________________________
(ADDRESS)
- -------------------------
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other Securities of the Company.]
C-18
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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 _______________________________
C-19
<PAGE>
[Reverse of Coupon]
*
______________________________
______________________________
______________________________
______________________________
______________________________
- -------------------
* Insert names and addresses of initial Paying Agents located outside the
United States.
C-20
<PAGE>
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 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 %].
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
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 , 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 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 pay-
D-1
<PAGE>
ment 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
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. [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 officesor agencies outside the
United States maintained for the purpose by the Company in accordance with the
Indenture is illegal or effectively
D-2
<PAGE>
precluded by exchange controls or other similar restrictions].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authroizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination so provided and (c)
appoints the Trustee his attorney-in-fact for any and all such purposes.
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 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 [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:
D-3
<PAGE>
(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, benefi-
ciary 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 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 [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 Holder's 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 governmental charge;
D-4
<PAGE>
(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
D-5
<PAGE>
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 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)] [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
D-6
<PAGE>
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 under its corporate seal 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
[Seal] 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 1, 1994 (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, N.A., 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
D-7
<PAGE>
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 Securi-
ties 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--(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 percentages of the
principal amount): If redeemed [on or before , %, and if re-
deemed] during the 12-month period beginning of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- -----------
<S> <C> <C> <C>
</TABLE>
D-8
<PAGE>
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
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 other-
wise 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,
<TABLE>
<CAPTION>
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
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-
D-9
<PAGE>
- -, 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 (calcu-
lated 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 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
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
D-10
<PAGE>
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 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 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 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.
D-11
<PAGE>
[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 appli-
- --------------------------------
* This provision will only be applicable if the Securities of the series are
interest-bearing and generally only if the Securities bear interest as a
fixed rate.
D-12
<PAGE>
cable) 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 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, identifi-
cation 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
- ----------------------------------
* This provision will only be applicable if the Securities of the series are
not to bear interest prior to Maturity.
D-13
<PAGE>
(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 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 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 give 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
D-14
<PAGE>
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 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 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
D-15
<PAGE>
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,r 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
D-16
<PAGE>
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 Comapny,
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, 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
D-17
<PAGE>
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 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 [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-bearing,
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 certain limitations therein set forth,
the transfer of Registered Securities is registrable in the Security Register,
upon surrender of a Registered Security for registration of transfer at the
[Corporate Trust Office
D-18
<PAGE>
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] offices of in and
in or at such other offices or agencies as the Company may desig-
nate, 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 [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 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.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
D-19
<PAGE>
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.
Dated: ______________________
_________________________________
Signature
Note: Exercise of the option to require redemption is irrevocable.
D-20
<PAGE>
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. $_______
Dated:
---------------------
__________________________________
Signature(s) must be guaranteed by
a commercial bank or trust company
or a member firm of a national
stock exchange if shares of
D-21
<PAGE>
Common Stock are to be delivered,
or Securities to be issued, other
than to and in the name of the
registered owner.
----------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
- ---------------------------- Social Security or other
(NAME) Taxpayer Identification
Number __________________________
- -----------------------------
(ADDRESS)
- -----------------------------
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other securities of the Company.]
D-22
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1954, AS
AMENDED.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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 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 ________________________________
<PAGE>
[Reverse of Coupon]
*
___________________________
___________________________
___________________________
___________________________
___________________________
- -----------------------
* Insert names and addresses of initial Paying Agents located outside the
United States.
D-24
<PAGE>
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)(1)(v) of the United States Treasury Regulations or is acquiring through
such financial institution, and in either case the financial institution 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 cer-
tificate 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 cer-
tificate 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
E-1-1
<PAGE>
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]
________________________
(Authorized Signatory)
Name:
Title:
E-1-2
<PAGE>
EXHIBIT E.2
[Form of Certificate to Be Given by Euro-Clear
and Cedel 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 above-
captioned 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 part submitted herewith for exchange 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]
[Cedel S.A.]
<PAGE>
By_________________________
<PAGE>
EXHIBIT E.3
[Form of Certificate to Be Given by Euro-Clear and
Cedel 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]
[Cedel S.A.]
By_________________________
<PAGE>
EXHIBIT 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 paragraph 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 beneficially 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 1.6049-4(c)(1)(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 regardless 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.
E-4-1
<PAGE>
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]
___________________________
(Authorized Signatory)
Name:
Title:
E-4-2
<PAGE>
Exhibit 4.9
INTERNATIONAL PAPER COMPANY,
__________________________, As Depositary,
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
_________________
DEPOSIT AGREEMENT
_________________
Dated as of ______________, 199_
<PAGE>
TABLE OF CONTENTS
ARTICLE I
PAGE
----
DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Deposit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Depositary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Depositary Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary's Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Depositary's Office . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Receipt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Record Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Registrar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Transfer Agent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS . . . . . . . . . . 3
SECTION 2.1. Form and Transfer of Receipts. . . . . . . . . . . . . . 3
SECTION 2.2. Deposit of Stock; Execution and Delivery of Receipts in
Respect Thereof. . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.3. Redemption of Stock. . . . . . . . . . . . . . . . . . . 7
SECTION 2.4. Registration of Transfer of Receipts . . . . . . . . . . 8
SECTION 2.5. Split-ups and Combinations of Receipts;
Surrender of Receipts and Withdrawal of Stock. . . . . . 9
SECTION 2.6. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts . . . . . . . . . . . . . . . . 10
SECTION 2.7. Lost Receipts, etc.. . . . . . . . . . . . . . . . . . . 11
SECTION 2.8. Cancellation and Destruction of Surrendered Receipts . . 11
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.1. Filing Proofs, Certificates and Other Information. . . . 12
SECTION 3.2. Payment of Taxes or Other Governmental Charges . . . . . 12
SECTION 3.3. Warranty as to Stock . . . . . . . . . . . . . . . . . . 12
<PAGE>
ARTICLE IV
PAGE
----
THE DEPOSITED SECURITIES; NOTICES. . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.1. Cash Distributions . . . . . . . . . . . . . . . . . . . 13
SECTION 4.2. Distribution Other than Cash, Rights, Preferences or
Privileges . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 4.3. Subscription Rights, Preferences or Privileges . . . . . 14
SECTION 4.4. Notice of Dividends, Etc.: Fixing of Record Date for
Holders of Receipts. . . . . . . . . . . . . . . . . . . 16
SECTION 4.5. Voting Rights. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 4.6. Changes Affecting Deposited Securities and
Reclassifications, Recapitalization, Etc.. . . . . . . . 17
SECTION 4.7. Inspection of Reports. . . . . . . . . . . . . . . . . . 18
SECTION 4.8. Lists of Receipt Holders . . . . . . . . . . . . . . . . 18
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.1. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar. . . . . . . . . . . . . . . . 18
SECTION 5.2. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or
the Company. . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 5.3. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company. . . . . . . . . . . . . . 20
SECTION 5.4. Resignation and Removal of the Depositary; Appointment
of Successor Depositary. . . . . . . . . . . . . . . . . 21
SECTION 5.5. Corporate Notices and Reports. . . . . . . . . . . . . . 22
SECTION 5.6. Indemnification by the Company . . . . . . . . . . . . . 22
SECTION 5.7. Charges and Expenses . . . . . . . . . . . . . . . . . . 23
SECTION 5.8. Tax Compliance . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VI
AMENDMENT AND TERMINATION. . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.1. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 6.2. Termination. . . . . . . . . . . . . . . . . . . . . . . 24
<PAGE>
ARTICLE VII
PAGE
----
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.1. Counterparts . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.2. Exclusive Benefit of Parties . . . . . . . . . . . . . . 25
SECTION 7.3. Invalidity of Provisions . . . . . . . . . . . . . . . . 25
SECTION 7.4. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 7.5. Depositary's Agents. . . . . . . . . . . . . . . . . . . 26
SECTION 7.6. Holders of Receipts Are Parties. . . . . . . . . . . . . 26
SECTION 7.7. Governing Law. . . . . . . . . . . . . . . . . . . . . . 27
SECTION 7.8. Inspection of Deposit Agreement. . . . . . . . . . . . . 27
SECTION 7.9. Headings . . . . . . . . . . . . . . . . . . . . . . . . 27
Exhibit A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
<PAGE>
DEPOSIT AGREEMENT dated as of ___________, 199_, among INTERNATIONAL
PAPER COMPANY, a New York corporation (the "Company"), __________, a __________
corporation (the "Depositary"), and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [Serial Preferred Stock], of the
Company with the Depositary for the purposes set forth in this Deposit Agreement
and for the issuance hereunder of Receipts evidencing Depositary Shares in
respect of the Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and
such other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the Restated Articles of Incorporation of the
Company filed with the Secretary of State of the State of New York establishing
the Stock as a series of preferred stock of the Company.
"Company" shall mean International Paper Company, a New York
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time in accordance with the terms hereof.
"Depositary" shall mean __________, and any successor as Depositary
hereunder.
2
<PAGE>
"Depositary Shares" shall mean Depositary Shares, each representing
[ ] of a share of Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.5.
"Depositary's Office" shall mean the principal office of the
Depositary, at which at any particular time its depositary receipt business
shall be administered.
"Receipt" shall mean one of the depositary receipts substantially in
the form set forth as Exhibit A annexed hereto, issued hereunder, whether in
definitive or temporary form evidencing the number of Depositary Shares held of
record by the holder of such Depositary Shares.
"Record Holder," as applied to a Receipt, shall mean the individual
entity or person in whose name a Receipt is registered on the books of the
Depositary or any register of any Registrar maintained for such purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed by the Depositary to register ownership and transfers of Receipts as
herein provided and which may include the Depositary.
"Stock" shall mean shares of the Company's [______ Serial Preferred
Stock, $1.00 par value per share].
"Transfer Agent" shall mean the Registrar.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND
DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.1. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company deliv-
3
<PAGE>
ered incompliance with Section 2.2, shall execute and deliver temporary receipts
which shall be printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Depositary's Office, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts registered in the name (and only the
name) of the holder of the temporary Receipt. Such exchange shall be made at
the Company's expense and without any charge therefor to the holder. Until so
exchanged, the temporary Receipts shall in all respects be entitled to the same
benefits under this Deposit Agreement, and with respect to the Stock, as
definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary; provided, that such signature
may be a facsimile if a Registrar for the Receipts (other than the Depositary)
shall have been appointed and such Receipts are countersigned by manual
signature of a duly authorized signatory of the Registrar. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose unless it shall have been executed manually by a duly authorized
signatory of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized signatory of the Depositary and countersigned manually by a duly
authorized signatory of such Registrar. The Depositary shall record on its
books each Receipt so signed and delivered as hereinafter provided. Receipts
bearing the manual or facsimile signatures of individuals who were at any time
proper officers of the Depositary or the Registrar, as the case may be, shall
constitute adequate
4
<PAGE>
signatures hereunder, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the delivery of such Receipt or did not
hold such offices on the date of delivery of such Receipts.
Receipts shall be in denominations of any number of whole Depositary
Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation or with the rules and regulations or
any securities exchange upon which the Stock, the Depositary Shares or the
Receipts may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.4, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions with respect to the Stock or to any notice provided for in this
Deposit Agreement and for all other purposes.
The Depositary shall not lend any Stock deposited hereunder.
SECTION 2.2. DEPOSIT OF STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN
RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement,
the Company or any other person authorized by the Company, as notified in
writing to the Depositary, may from time to time deposit shares of the Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Stock to be deposited. Such certificate or certificates
representing the
5
<PAGE>
Stock shall be properly endorsed or accompanied, if required by the Depositary,
by a duly executed instrument of transfer or endorsement, in form satisfactory
to the Depositary, together with such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company, directing the Depositary to
execute and deliver to the person or persons named in such order, a Receipt or
Receipts evidencing in the aggregate the number of Depositary Shares
representing such deposited Stock.
All Stock deposited by the Company with the Depositary shall be held
by the Depositary at the Depositary's Office or at such other place or places as
the Depositary shall determine.
Upon receipt by the Depositary of a certificate or certificates for
Stock deposited with the Depositary by the Company in accordance with the
provisions of this Section, together with the other documents required as above
specified, and upon recordation of the Stock on the books of the Company in the
name of the Depositary or its nominee, the Depositary shall execute and deliver
to the person or persons named in the written order delivered to the Depositary
a Receipt or Receipts, evidencing in the aggregate the number of Depositary
Shares representing the Stock so deposited. Such Receipt or Receipts shall be
registered by the Depositary or the Registrar in such name or names as may be
requested by the person or persons as specified in the written order. The
Depositary shall execute and deliver such Receipts at the Depositary's Office or
such other offices, if any, as such person may designate. Delivery at other
offices shall be at the risk and expense of the person requesting such delivery.
The Depositary may not execute and deliver Receipts pursuant to this Section
prior to receipt of Stock.
Other than in the case of splits, combinations or other
reclassifications affecting the Stock, or in the case of dividends or other
distributions of Stock, if any, there shall be deposited hereunder not more than
___________ shares of Stock.
6
<PAGE>
SECTION 2.3. REDEMPTION OF STOCK. Whenever the Company shall be
permitted and shall elect to redeem shares of Stock in accordance with the
provisions of the Certificate, it shall (unless otherwise agreed to in writing
with the Depositary) give or cause to be given to the Depositary not less than
40 nor more than 70 days' notice of the date of such proposed redemption of
Stock and of the number of such shares held by the Depositary to be so redeemed
and the applicable redemption price, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Stock is in
accordance with the provisions of the Certificate. On the date of such
redemption, provided that the Company shall then have paid or caused to be paid
in full to the Depositary the redemption price of the Stock to be redeemed, plus
an amount equal to any accrued and unpaid dividends thereon to the date fixed
for redemption, in accordance with the provisions of the Certificate, Depositary
shall redeem the number of Depositary Shares representing such Stock. The
Depositary shall mail notice of the Company's redemption of Stock and the
proposed simultaneous redemption of the number of Depositary Shares representing
the Stock to be redeemed by first-class mail, postage prepaid, not less than 30
and not more than 60 days prior to the date fixed for redemption of such Stock
and Depositary Shares (the "Redemption Date"), to the record holders of the
Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of
such holders as they appear on the records of the Depositary on the ____ day
prior to the date of such notice; but neither failure to mail any such notice of
redemption of Depositary Shares to one or more such holders nor any defect in
any notice of redemption of Depositary Shares to one or more such holders shall
affect the sufficiency of the proceedings for redemption as to other holders.
Each such notice shall state: (i) the Redemption Date; (ii) the number of
Depositary Shares to be redeemed and, if less than all the Depositary Shares to
be redeemed, the number of such Depositary Shares held by such holder to be so
redeemed; (iii) the redemption price; (iv) the place or places where Receipts
evidencing Depositary Shares are to be surrendered for payment of the redemption
price; and (v) the dividends in respect of the Stock represented by the
Depositary Shares to be redeemed will cease to accumulate on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be
redeemed, the Depositary Shares to be so redeemed shall
7
<PAGE>
be selected by lot or pro rata nearly as may be) as may be determined by the
Depositary or any other method which may be determined by the Depositary in its
sole discretion to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall failed to provide the funds
necessary to redeem the Stock evidenced by the Depositary Shares called for
redemption), (i) dividends in respect of the shares of Stock so called for
redemption shall cease to accrue from and after such date, (ii) the Depositary
Shares being redeemed from such proceeds shall be deemed no longer to be
outstanding, (iii) all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the redemption price) shall, to
the extent of such Depositary Shares, cease and terminate and, (iv) upon
surrender in accordance with such redemption notice of the Receipts evidencing
any such Depositary Shares called for redemption (properly endorsed or assigned
for transfer, if the Depositary shall so require), such Depositary Shares shall
be redeemed by the Depositary at a redemption price per Depositary Share equal
to __________ (___) of the redemption price per share paid in respect of the
shares of Stock plus all money and other property, if any, represented by such
Depositary Shares, including all amounts paid by the Company in respect of
dividends which on the Redemption Date have accumulated on the shares of Stock
to be so redeemed and have not theretofore been paid.
If fewer than all the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with the redemption payment, a
new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not called for redemption. The Depositary shall remit to the Company any funds
deposited by or for the account of the Company for the purpose of redeeming any
Depositary Shares that the holders thereof have failed to redeem after two years
from the date of such deposit, without further action necessary on the part of
the Company.
SECTION 2.4. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the
terms and conditions of this Deposit Agreement, the Registrar, on behalf of the
Depos-
8
<PAGE>
itary, shall register on its books from time to time transfers of Receipts upon
notice to the Registrar by the Depositary of any surrender of a Receipt for
transfer by the holder in person or by duly authorized attorney, which Receipt
in each case must be properly endorsed or accompanied by a properly executed
instrument of transfer. Upon surrender of a properly endorsed Receipt or
Receipts, accompanied by a properly executed instrument of transfer, the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
transferee named in the endorsement or instrument of transfer.
SECTION 2.5. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF STOCK. Upon surrender of a Receipt or Receipts at
the Depositary's Office or at such other offices as it may designate for the
purpose of effecting a split-up or combination of such Receipt or Receipts, and
subject to the terms and conditions of this Deposit Agreement, the Depositary
shall execute and deliver a new Receipt or Receipts to the holder thereof or to
such holder's order in the denominations requested, evidencing the aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered.
The Depositary shall give prompt notice of such action and the certificate
numbers to the Registrar, if applicable, for the purpose of recording such
split-up or consolidation.
Any holder of a Receipt or Receipts representing any number of whole
shares of Stock may (unless the related Depositary Shares have previously been
called for redemption) withdraw the number of whole shares of Stock underlying
such Depositary Shares and all money and other property, if any, represented
thereby by surrendering such Receipt or Receipts, at the Depositary's Office or
at such other offices as the Depositary may designate for such withdrawals.
Thereafter, without unreasonable delay, the Depositary shall deliver to such
holder, or to the person or persons designated by such holder as hereinafter
provided, the number of whole shares of Stock and all money and other property,
if any, represented by the Receipt or Receipts so surrendered for withdrawal,
but holders of such whole shares of Stock will not thereafter be entitled to
deposit such Stock hereunder or to receive
9
<PAGE>
Depositary Shares therefor. If a Receipt or Receipts delivered by the holder to
the Depositary in connection with such withdrawal shall evidence a number of
Depositary Shares in excess of the number of Depositary Shares representing the
number of whole shares of Stock to be so withdrawn, the Depositary shall at the
same time, in addition to such number of whole shares of Stock and such money
and other property, if any, to be so withdrawn, deliver to such holder, or
(subject to Sections 2.04 and 3.02) upon his order, a new Receipt evidencing
such excess number of Depositary Shares not withdrawn. Delivery of the Stock
and money and other property, if any, being withdrawn may be made by the
delivery of such certificates, documents of title and other instruments as the
Depositary may deem appropriate.
If the Stock and the money and other property, if any, being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Stock, such holder shall
execute and deliver to the Depositary a written order so directing the
Depositary, and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Stock be properly
endorsed in blank or accompanied by a properly executed instrument of transfer
in blank.
Delivery of the Stock and the money and other property, if any,
represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.6. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.7, may require the production of evi-
10
<PAGE>
dence satisfactory to it as to the identity and genuineness of any signature;
and may also require compliance with the rules and regulations of any
governmental body, any stock exchange or applicable self-regulatory body,
including without limitation, the National Association of Securities Dealers,
Inc. (the "NASD") or such regulations, if any, as the Depositary or the Company
may establish consistent with the provisions of this Deposit Agreement.
The deposit of Stock may be refused, the delivery of Receipts against
Stock deposited with the Depositary may be suspended, the registration of
transfer of Receipts may be refused and the registration of transfer, surrender
or exchange of outstanding Receipts may be suspended (i) during any period when
the register of stockholders of the Company is closed with respect to the Stock
or (ii) if any such action is deemed necessary or advisable by the Depositary,
any of the Depositary's Agents or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, stock exchange or the NASD or under any provision of this Deposit
Agreement.
SECTION 2.7. LOST RECEIPTS, ETC. If any mutilated Receipt is
surrendered to the Depositary, the Depositary may, in its discretion, execute
and deliver in exchange therefor a new Receipt of like form and tenor in
exchange and substitution for such mutilated Receipt. In case any Receipt shall
be destroyed, lost or stolen, the Depositary shall execute and deliver a Receipt
to the holder thereof of like form and tenor in exchange and substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
such holder's ownership thereof and (ii) the holder's furnishing the Depositary
with reasonable indemnification satisfactory to the Depositary and the Company.
SECTION 2.8. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
11
<PAGE>
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.1. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to obtain such guarantees of
signature, to execute such certificates and to make such representations and
warranties consistent with the terms of the Stock as the Depositary or the
Company may reasonably deem necessary or proper. The Depositary or the Company
may withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Stock represented by the
Depositary Shares evidenced by any Receipt and the delivery of all money or
other property, if any, represented by the Depositary Shares represented by such
Receipt or the distribution of any dividend or other distribution or the sale of
any rights or of the proceeds thereof until such proof or other information is
filed or such certificates are executed or such representations and warranties
are made.
SECTION 3.2. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders
of Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.7. Registration of transfer of
any Receipt or any withdrawal of Stock and all money or other property, if any,
represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends, interest payments or
other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not
theretofore sold may be sold for the account of the holder thereof (after
attempting by reasonable means to notify such holder prior to such sale), and
such dividends, interest payments or other distributions or the proceeds of any
such sale may be applied to any payment of such charges or expenses, the holder
of such Receipt remaining liable for any deficiency.
SECTION 3.3. WARRANTY AS TO STOCK. The Company hereby represents and
warrants to the Depositary that
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the Stock, when issued, will be validly issued, fully paid and nonassessable.
Such representation and warranty shall survive the deposit of the Stock and the
issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.1. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution with respect to the Stock,
the Depositary shall, subject to Sections 3.1 and 3.2, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.4 the pro
rata portion, as nearly as practicable, of such dividend or distribution
applicable to the number of Depositary Shares evidenced by the Receipts held by
such holders; provided, however, that in case the Company or the Depositary
shall be required to withhold and shall withhold any monies from any cash
dividend or other cash distribution in respect of the Stock an amount on account
of taxes, the distribution in respect of Depositary Shares shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next succeeding distribution to record holders of Receipts then
outstanding.
SECTION 4.2. DISTRIBUTION OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any property (including
securities) for distribution in a form other than cash, with respect to the
Stock, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.4 the
pro rata portion, as nearly as practicable of such property (including
securities) received by it applicable to the number of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such
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distribution cannot be made proportionately among such record holders, or if for
any other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes) the Depositary deems, after consultation
with the Company, such distribution not to be feasible, the Depositary may, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
of the property thus received, or any part thereof, in a commercially reasonable
manner. The net proceeds of any such sale shall, subject to Sections 3.1 and
3.2, be distributed or made available for distribution, as the case may be, by
the Depositary to record holders of Receipts as provided by Section 4.1 in the
case of a distribution received in cash. The Depositary shall not make any
distribution of such securities unless the Company shall have provided an
opinion of counsel stating that such securities have been registered under the
Securities Act of 1933 or do not need to be registered.
SECTION 4.3. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Stock is recorded on the books of the Company any rights, preferences or
privileges to subscribe for or to purchase any securities or any rights,
preferences or privileges of any other nature, such rights, preferences or
privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts, pro rata in proportion to the Stock represented
by the Depositary Shares evidenced by such Receipt, in such manner as the
Depositary may determine, either by the issue to such record holders of warrants
representing such rights, preferences or privileges or by such other method as
may be approved by the Depositary in its discretion with the approval of the
Company; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Depositary determines that it is not
lawful or (after consultation with the Company) not feasible to make such
rights, preferences or privileges available to holders of Receipts by the issue
of warrants or otherwise, or (ii) if and to the extent so instructed by holders
of Receipts who do not desire to exercise such rights, preferences or
privileges, then the Depositary, in its discretion (with the approval of the
Company, in any case where the Depositary has determined that it is
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not feasible to make such rights, preferences or privileges available), may, if
applicable laws or the terms of such rights, preferences or privileges permit
such transfer, sell such rights, preferences or privileges at public or private
sale, at such place or places and upon such terms as it may deem proper. The
net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be
distributed by the Depositary to the record holders of Receipts entitled thereto
as provided by Section 4.1 in the case of a distribution received in cash. The
Depositary shall not make any distribution of any such rights, preferences or
privileges unless the Company shall have provided an opinion of counsel stating
that such rights, preferences or privileges have been registered under the
Securities Act of 1933 or do not need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
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SECTION 4.4. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable or any distribution of property (including securities)
other than cash shall be made, or if rights, preferences or privileges shall at
any time be offered, with respect to Stock, or whenever the Depositary shall
receive notice of (i) any meeting at which holders of Stock are entitled to vote
or of which holders of Stock are entitled to notice, or (ii) any election on the
part of the Company to redeem any shares of Stock, the Depositary shall in each
such instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Stock) for the determination of the
holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or to receive notice of such meeting or for any other appropriate
reasons.
SECTION 4.5. VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Stock are entitled to vote, the Depositary shall, as soon
as practicable thereafter, mail to the record holders of Receipts a notice which
shall contain (i) such information as is contained in such notice of meeting and
(ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of Stock represented by their respective Depositary Shares (including
an express indication that instructions may be given to the Depositary to give a
discretionary proxy to a person designated by the Company) and a brief statement
as to the manner in which such instructions may be given. Upon the written
request of the holders of Receipts on the applicable record date, the Depositary
shall endeavor insofar as practicable, to vote or cause to be voted, in
accordance with the instructions set forth in such requests, the maximum number
of whole shares of Stock represented by the Depositary Shares evidenced by all
Receipts as to which any particular voting instructions are received. The
Company hereby agrees to take all action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such
Stock to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary
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will either vote the Shares or abstain from voting in accordance with applicable
stock exchange rules on which the Shares may be listed (but, at its discretion,
not from appearing at any meeting with respect to such Stock unless directed to
the contrary by the holders of all the Receipts) to the extent of the Stock
represented by the Depositary Shares evidenced by such Receipt.
SECTION 4.6. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATION, ETC. Upon any change in par or stated
value or liquidation preference, split-up, combination or any other
reclassification of the Stock, or upon any recapitalization, reorganization,
merger, amalgamation or consolidation to which the Company is a party or sale of
all or substantially all of the Company's assets, the Depositary may in its
discretion with the approval of, and shall upon the instructions of, the
Company, and (in either case) in such manner as to retain as nearly as possible
the percentage ownership interest in the Stock of holders of the Receipts
immediately prior to such event, (i) make such adjustments in (x) the fraction
of an interest represented by one Depositary Share in one share of Stock and (y)
the ratio of the redemption price per Depositary Share to the redemption price
of a share of Stock, in each case, as may be necessary fully to reflect the
effects of such change in par or stated value or liquidation preference, split-
up, combination or other reclassification of Stock, or of such recapitalization,
reorganization, merger, amalgamation or consolidation or sale and (ii) treat any
securities which shall be received by the Depositary in exchange for or upon
conversion of or in respect of the Stock as new deposited securities so received
in exchange for or upon conversion or in respect of such Stock. In any such
case the Depositary may in its discretion, with the approval of the Company,
execute and deliver additional Receipts, or may call for the surrender of all
outstanding Receipts to be exchanged for new Receipts specifically describing
such new deposited securities.
Anything to the contrary herein notwithstanding, holders of Receipts
shall have the right from and after the effective date of any such change in par
or stated value or liquidation preference, split-up, combination or other
reclassification of the Stock or any such recapitalization, reorganization,
merger, amalgamation or consolidation or sale to the extent that holders of
Stock had the right, prior to or on the applicable effective date, to convert,
exchange or surrender the Stock repre-
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sented thereby only into or for, as the case may be, the kind and amount of
shares of stock and other securities and property and cash into which such Stock
might have been exchange or surrendered immediately prior to the effective date
of such transaction.
SECTION 4.7. INSPECTION OF REPORTS. The Depositary shall transmit to
the record holders of Receipts, at the addresses of such record holders as set
forth on the books of the Depositary, and shall make available for inspection by
holders of Receipts at the Depositary's Office, and at such other places as it
may from time to time deem advisable, any reports and communications received
from the Company which are received by the Depositary as the holder of Stock.
SECTION 4.8. LISTS OF RECEIPT HOLDERS. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names and addresses of all persons in whose names Receipts
are registered on the books of the Depositary and the amount of Stock
represented thereby.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.1. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY
THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the
Depositary shall maintain, at the Depositary's Office, facilities for the
execution and delivery, registration and registration of transfer, surrender and
exchange of Receipts, and at the offices of the Depositary's Agents, if any,
facilities for the delivery, registration of transfer, surrender and exchange of
Receipts and the deposit and withdrawal of Stock, all in accordance with the
provisions of this Deposit Agreement.
The Depositary shall, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares in
accordance with any requirements of any applicable stock exchange on which the
Receipts or the Depositary Shares are listed. Such Registrar (which may be the
Depositary if so permitted by
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the requirements of such exchange) may be removed and a substitute registrar
appointed by the Depositary upon the request or with the approval of the
Company. If the Receipts, the Depositary Shares or the Stock are listed on one
or more other stock exchanges, the Depositary will, at the request of the
Company, arrange such facilities for the delivery, registration, registration of
transfer, surrender and exchange of such Receipts, such Depositary Shares or
such Stock as may be required by law or applicable stock exchange regulation.
The Registrar shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts or at such other place as
shall be approved by the Company and of which the holders of Receipts shall have
reasonable notice, which books at all reasonable times shall be open for
inspection by the record holders of Receipts; provided, that any such holder
requesting to exercise such right shall certify to the Registrar that such
inspection shall be in compliance with the Business Corporation Law of the State
of New York and for a proper purpose reasonably related to such person's
rights as an owner of Depositary Shares evidenced by the Receipts.
The Depositary may cause the Registrar to close such books, at any
time or from time to time, when the register of stockholders of the Company is
closed with respect to the Stock or when such action is deemed necessary or
advisable by the Depositary or any Depositary's Agent because of any requirement
of law or of any government, governmental body or commission, stock exchange or
any applicable self-regulatory body, including without limitation, the NASD.
SECTION 5.2. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Restated Articles of Incorporation or by reason of any
act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, the Depositary's Agent, the Registrar or the Company
shall be
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prevented, delayed or forbidden from doing or performing any act or thing which
the terms of this Deposit Agreement provide shall be done or performed; nor
shall the Depositary, any Depositary's Agent, any Registrar or the Company incur
any liability or be subject to any obligation (i) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which the terms of this Deposit Agreement provide shall or may be done or
performed, or (ii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement except, in case of any such
exercise or failure to exercise discretion not caused as aforesaid, if caused by
the negligence or willful misconduct of the party charged with such exercise or
failure to exercise.
SECTION 5.3. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY. Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit or other proceeding in respect of the
Stock, the Depositary Shares or the Receipts which in its opinion may involve it
in expense or liability unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar
nor the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, any holder of
a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties
specified in this Deposit Agreement.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the shares of Stock or for the manner or effect
of any such vote made, as long as any such action or non-action is in good
faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in
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this Deposit Agreement using its best efforts and in good faith. The parties
hereto acknowledge that no implied covenants or obligations shall be read into
this Depositary Agreement against the Depositary or any Registrar. The
Depositary will indemnify the Company against any liability that may arise out
of acts performed or omitted by the Depositary or the Depositary's Agents due to
its or their negligence or willful misconduct. The Depositary, the Depositary's
Agents, and any Registrar may own and deal in any class of securities of the
Company and its affiliates and in Receipts. The Depositary may also act as
transfer agent or registrar of any of the securities of the Company and its
affiliates.
SECTION 5.4. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice or
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and agreeing to become a party to this
Deposit Agreement and thereupon such successor Depositary, without any further
act or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor
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and for all purposes shall be the Depositary under this Deposit Agreement, and
such predecessor, upon payment of all sums due it and on the written request of
the Company, shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Stock and any
moneys or property held hereunder to such successor, and shall deliver to such
successor a list of the record holders of all outstanding Receipts. Any
successor Depositary shall promptly mail notice of its appointment to the record
holders of Receipts.
Any corporation or other entity into or with which the Depositary may
be merged, consolidated or converted or to which the Depositary may sell all or
substantially all of its assets shall be the successor of such Depositary
without the execution or filing of any document or any further act, and notice
thereof shall not be required hereunder. Such successor Depositary may
authenticate the Receipts in the name of the predecessor Depositary or in the
name of the successor Depositary.
SECTION 5.5. CORPORATE NOTICES AND REPORTS. The Company agrees that
it will deliver to the Depositary and the Depositary will, promptly after
receipt thereof, transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.8, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Stock, the Depositary
Shares or the Receipts are listed or by the Company's Restated Articles of
Incorporation to be furnished by the Company to holders of Stock. Such
transmission will be at the Company's expense and the Company will provide the
Depositary with such number of such documents as the Depositary may reasonably
request.
SECTION 5.6. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself and reasonable counsel fees) which may
arise out of (a) acts performed or omitted in connection with this Deposit
Agreement and the Receipts (i) by the Depositary, any Registrar or any of their
respective agents (including
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any Depositary's Agent), except for any liability arising out of negligence or
bad faith on the respective parts of any such person or persons, or (ii) by the
Company or any of its agents, or (b) the offer, sale or registration of the
Receipts, the Depositary Shares or the Stock pursuant to the provisions hereof.
SECTION 5.7. CHARGES AND EXPENSES. The Company shall pay all
transfer and other taxes and governmental charges arising solely from the
existence of the depositary arrangements hereunder. The Company shall pay all
charges of the Depositary in connection with the initial deposit of the Stock
and the initial issuance of the Depositary Shares, redemption of the Stock at
the option of the Company and all withdrawals of shares of the Stock by owners
of Depositary Shares. All other transfer and other taxes and governmental
charges shall be at the expense of holders of Depositary Shares. If, at the
request of a holder of Receipts, the Depositary incurs charges or expenses for
which it is not otherwise liable hereunder, such holder will be liable for such
charges and expenses. All other charges and expenses of the Depositary and any
Depositary's Agent hereunder and of any Registrar (including, in each case,
reasonable fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges
and expenses to the Company once every three months or at such other intervals
as the Company and the Depositary may agree.
SECTION 5.8. TAX COMPLIANCE. (a) The Depositary, on its own behalf
and on behalf of the Company, will comply with all applicable certification,
information reporting and withholding (including "backup" withholding)
requirements imposed by applicable tax laws, regulations or administrative
practice with respect to (i) any payments made with respect to the Depositary
Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise
of rights under the Receipts or the Depositary Shares. Such compliance shall
include, without limitation, the preparation and timely filing of required
returns and the timely payment of all amounts required to be withheld to the
appropriate taxing authority or its designated agent.
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(b) The Depositary shall comply with any direction received from
the Company with respect to the application of such requirements to particular
payments or holders or in other particular circumstances, and may for purposes
of this Deposit Agreement rely on any such direction in accordance with the
provisions of Section 5.3 hereof.
(c) The Depositary shall maintain all appropriate records
documenting compliance with such requirements, and shall make such records
available on request of the Company or to its authorized representatives.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1. AMENDMENT. The form of the Receipts and any provisions
of this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment which
would materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of
Receipts evidencing at least a [majority] of the Depositary Shares then
outstanding. Every holder of an outstanding Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Receipt, or by reason of the acquisition thereof, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby.
SECTION 6.2. TERMINATION. This Deposit Agreement may be terminated
by the Company or the Depositary only after (i) all outstanding Depositary
Shares shall have been redeemed pursuant to Section 2.3 or (ii) there shall have
been made a final distribution in respect of the Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts evidencing the Depositary
Shares pursuant to Section 4.1 or 4.2, as applicable.
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Upon the termination of this Deposit Agreement, the parties hereto
shall be discharged from all obligations under this Deposit Agreement except for
their respective obligations under Sections 5.3, 5.6 and 5.7.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1. COUNTERPARTS. This Deposit Agreement may be executed
in any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.2. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement
is for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.
SECTION 7.3. INVALIDITY OF PROVISIONS. In case any one or more of
the provisions contained in this Deposit Agreement or in the Receipts should be
or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.4. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or telegram,
telecopy or telex confirmed by letter, addressed to the Company at Two
Manhattanville Road, Purchase, New York 10577 telephone (914) 397-1500, telecopy
(914) 397-1505, to the attention of the Office of the Secretary, or at any other
address of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram, telecopy or
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telex confirmed by letter, addressed to the Depositary at the Depositary's
Office, at [ ] telephone _________, telecopy ________, or at any
other address of which the Depositary shall have notified the Company and the
record holders of the Receipts in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram, telecopy
or telex confirmed by letter, addressed to such record holder at the address of
such record holder as it appears on the books of the Depositary, or if such
holder shall have filed with the Depositary a written request that notices
intended for such holder be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or by telegram, telecopy or telex
shall be deemed to be effected at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a telegram,
telecopy or telex message) is deposited, postage prepaid, in a post office
letter box. The Depositary or the Company may, however, act upon any telegram,
telecopy or telex message received by it from the other or from any holder of a
Receipt, notwithstanding that such telegram, telecopy or telex message shall not
subsequently be confirmed by letter or as aforesaid.
SECTION 7.5. DEPOSITARY'S AGENTS. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.67. HOLDERS OF RECEIPTS ARE PARTIES. By acceptance of
delivery of the Receipts, the holder of any such Receipt from time to time shall
be deemed to have agreed to become a party to this Deposit Agreement and to be
bound by all of the terms and conditions hereof and of the Receipts to the same
extent as though such person executed this Deposit Agreement.
26
<PAGE>
SECTION 7.7. GOVERNING LAW. THIS DEPOSIT AGREEMENT AND THE RECEIPTS
AND ALL RIGHTS HEREUNDER AND THEREUNDER AND PROVISIONS HEREOF AND THEREOF SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK (WITHOUT REFERENCE TO APPLICABLE CONFLICTS OF LAWS PROVISIONS).
SECTION 7.8. INSPECTION OF DEPOSIT AGREEMENT. Copies of this
Deposit Agreement shall be filed with the Depositary and the Depositary's Agents
and shall be open to inspection during business hours at the Depositary's Office
and the respective offices of the Depositary's Agent, if any, by any holder of a
Receipt.
SECTION 7.9. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or the Receipts or to have any bearing upon the
meaning or interpretation of any provision contained herein or in the Receipts.
27
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Deposit Agreement as of the day and year first above set forth, and all
holders of Receipts shall become parties hereto by and upon acceptance by them
of delivery of Receipts issued in accordance with the terms hereof.
INTERNATIONAL PAPER COMPANY,
Attested by
_________________________ By:_________________________
Name:
Title:
[SEAL]
[ ], as Depositary
Attested by:
__________________________ By:_________________________
Name:
Title:
[SEAL]
28
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
TEMPORARY RECEIPT - Exchangeable for Definitive Engraved Receipt When Ready for
Delivery
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ________ DEPOSITARY SHARES
TDR
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[SERIAL PREFERRED STOCK] OF INTERNATIONAL PAPER COMPANY
CUSIP________
INCORPORATED UNDER THE LAWS OF THE STATE OF NEW YORK (SEE REVERSE FOR CERTAIN
DEFINITIONS)
_______________________________, as Depositary (the "Depositary"), hereby
certifies that
is the registered owner of ________________ DEPOSITARY SHARES
("Depository Shares"), each Depositary Share representing _____________ of one
share of [insert title of stock], ____________________________________________)
(the "Stock"), of International Paper Company, a New York corporation (the
"Company"), on deposit with the Depositary, subject to the terms and entitled to
the benefits of the Deposit Agreement dated as of ______, 199_ (the "Deposit
Agreement"), between the Company and the Depositary. By accepting this
Depositary Receipt the holder hereof becomes a party to and agrees to be bound
by all the terms and conditions of the Deposit Agreement. This Depositary
Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer or, if executed
in facsimile by the Depository, countersigned by a Registrar
29
<PAGE>
in respect of the Depositary Receipts by the manual signature of a duly
authorized officer thereof.
Dated: Countersigned:
______________ _____________________
Depositary Registrar
By By
Authorized Officer Authorized Officer
30
<PAGE>
[FORM OF REVERSE OF RECEIPT]
INTERNATIONAL PAPER COMPANY
INTERNATIONAL PAPER COMPANY WILL FURNISH WITHOUT CHARGE TO EACH RECEIPT
HOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE COMPANY IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE TRANSFER AGENT NAMED ON THE FACE OF THIS RECEIPT.
The following abbreviations when used in the inscription on the face of
this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties Act
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ________ Custodian _______
(Cust) (Minor)
Under Uniform Gifts to Minors Act ______________
(State)
Additional abbreviations may also be used though not in the above list
31
<PAGE>
For value received,_______________ hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_________________________________________ Depositary Shares represented by the
within Receipt, and do hereby irrevocably constitute and appoint
________________________________________ Attorney to transfer the said
Depositary Shares on the books of the within-named Depositary with full power of
substitution in the premises
Dated_________, 199_
NOTICE: The signature to the assignment must correspond with the name as
written upon the face of this Receipt in every particular, without
alteration or enlargement or any change whatever.
(GUARANTEE OF SIGNATURE/S)
Authorized Signature_____________________________
Name and Title___________________________________
Dated___________, 199__
Name of Firm:____________________________________
Notice: If applicable, all signatures on this assignment must be guaranteed by a
firm that is a member of a registered national securities exchange of
the National Association of Securities Dealers, Inc., or by a commercial
bank or trust company having an office or correspondent in the United
States (an "Eligible Institution"). However, signatures need not be
guaranteed if this assignment is made for the account of an Eligible
Institution.
32
<PAGE>
INTERNATIONAL PAPER COMPANY
Two Manhattanville Road
Purchase, New York 10577
April 1, 1994
Securities and Exchange Commission
Judiciary Plaza
450 5th Street, N.W.
Washington, D.C. 20549
Re: International Paper Company
Registration Statement on Form S-3
----------------------------------
Dear Sirs:
This opinion is furnished by me as counsel for International Paper
Company, a New York corporation (the "Company"), in connection with the Regis-
tration Statement on Form S-3 filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Securi-
ties Act"). The Registration Statement relates to the issuance and sale from
time to time, pursuant to Rule 415 of the General Rules and Regulations promul-
gated under the Securities Act, of the following securities of the Company with
an aggregate initial public offering price of up to $2,000,000,000 or the equiv-
alent thereof, based on the applicable exchange rate at the time of sale, in one
or more foreign currencies, currency units or composite currencies as shall be
designated by the Company: (i) debt securities (the "Debt Securities") which
may be either senior debt securities (the "Senior Debt Securities") or subordi-
nated debt securities (the "Subordinated Debt Securities"); (ii) shares of its
serial preferred stock, $1.00 par value (the "Preferred Stock"), which may also
be issued in the form of depositary shares (the "Depositary Shares") evidenced
by depositary receipts (the "Receipts"); (iii) shares of its common stock, $1.00
par value (the "Common Stock"), including Common Share Purchase Rights (the
"Rights") issued therewith; (iv) warrants to purchase Debt Securities, Preferred
Stock, Common Stock or other securities of the Company as shall be designated by
the Company at the time of offer-
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 2
ing (the "Warrants"); (v) such indeterminate number of Debt Securities and
shares of Common Stock (including Rights) and Preferred Stock as may be issued
upon conversion or exchange of any Debt Securities or Preferred Stock or upon
exercise of Warrants for such securities, including such shares of Common Stock
and Preferred Stock as may be issued pursuant to anti-dilution adjustments, in
amounts, at prices and on terms to be determined at the time of offering (the
"Indeterminate Securities"). Pursuant to Rule 429 under the Securities Act, the
prospectus included in the Registration Statement also relates to $400,000,000
in aggregate proceeds of securities (the "Registered Securities") registered as
Debt Securities under Registration Statement No. 33-48167 (the "Prior Registra-
tion Statement"). The Debt Securities, Preferred Stock, Common Stock, Warrants,
Indeterminate Securities and Registered Securities are collectively referred to
herein as the "Securities." The Senior Debt Securities may be issued under an
Indenture (the "Senior Indenture") proposed to be entered into between the
Company and The Chase Manhattan Bank, N.A., as trustee (the "Senior Indenture
Trustee"). The Subordinated Debt Securities may be issued under a separate
Indenture (the "Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures"), proposed to be entered into between the Company and The Chase
Manhattan Bank, N.A., as trustee (the "Subordinated Indenture Trustee" and,
together with the Senior Indenture Trustee, the "Trustees").
This opinion is delivered in accordance with the requirements of Items
601(b)(5) of Regulation S-K under the Securities Act.
I have examined and am familiar with originals or copies of such
documents, corporate records and other instruments as I have deemed necessary or
appropriate in connection with this opinion, including (i) the form of Registra-
tion Statement relating to the Securities; (ii) the Prior Registration State-
ment; (iii) the form of the Senior Indenture; (iv) the form of the Subordinated
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 3
Indenture; (v) the forms of underwriting agreements (including the Underwriting
Agreement Standard Provisions relating to firm commitment underwritten offerings
of Debt Securities, Preferred Stock and Common Stock, respectively, incorporated
therein) that may be entered into between the Company and one or more underwrit-
ers named therein in connection with any offering of the Securities (the "Under-
writing Agreements"); (vi) the form of deposit agreement (the "Deposit Agree-
ment") that may be entered into among the Company, a depositary to be appointed
by the Company (the "Depositary"), and the holders from time to time of Receipts
issued thereunder in connection with any offering of Depositary Shares; (vii)
the Rights Agreement dated as of April 14, 1987, as amended (the "Rights Agree-
ment"), between the Company and Chemical Bank as successor to Manufacturers
Hanover Trust Company, as Rights Agent; (viii) the Restated Certificate of
Incorporation of the Company, as amended; (ix) the By-laws of the Company as
currently in effect; and (x) resolutions adopted to date by the Board of
Directors of the Company (the "Board") relating to the issuance of the
Securities (the "Board Resolutions").
I am a member of the Bar of the State of New York and do not express
any opinion as to the laws of any other jurisdiction other than the laws of the
United States of America to the extent referred to specifically herein.
Based on the foregoing I am of the opinion that:
1. The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of New York.
2. Each of the Indentures has been duly authorized by the Company
and, when executed and delivered by the Company, will be a valid and binding
agreement, enforceable against the Company in accordance with its
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 4
terms, except to the extent that enforcement thereof may be limited by (a)
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally,
(b) general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (c) public policy consider-
ations which may limit the rights of parties to obtain further remedies, (d) re-
quirements that a claim with respect to any Debt Securities denominated other
than in United States dollars (or a judgment denominated other than in United
States dollars in respect of such claim) be converted into United States dollars
at a rate of exchange prevailing on a date determined pursuant to applicable
law, and (e) governmental authority to limit, delay or prohibit the making of
payments outside the United States or in foreign currencies, currency units or
composite currencies.
3. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Registration Statement, as finally amended (including
all necessary post-effective amendments), has become effective; (ii) an appro-
priate Prospectus Supplement with respect to the Offered Debt Securities has
been prepared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii) if the Offered Debt Securi-
ties are to be sold pursuant to a firm commitment underwritten offering, the
Underwriting Agreement with respect to the Offered Debt Securities has been duly
authorized, executed and delivered by the Company and the other parties thereto;
(iv) the Board, including any appropriate committee appointed thereby, and
appropriate officers of the Company have taken all necessary corporate action to
approve the issuance and terms of the Offered Debt Securities and related
matters; (v) the terms of the Offered Debt Securities and of their issuance and
sale have been duly established in conformity with the applicable Indenture so
as not to violate any applicable law, the Restated
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 5
Certificate of Incorporation or By-laws of the Company or result in a default
under or breach of any agreement or instrument binding upon the Company and so
as to comply with any requirement or restriction imposed by any court or gov-
ernmental body having jurisdiction over the Company; (vi) the applicable Inden-
ture has been qualified under the Trust Indenture Act of 1939, as amended, and
duly executed and delivered by the Company to the applicable Trustee; and (vii)
the Offered Debt Securities have been duly executed and authenticated in accor-
dance with the provisions of the applicable Indenture and duly delivered to the
purchasers thereof upon payment of the agreed-upon consideration therefor,
(1) the Offered Debt Securities (including any Debt Securities duly issued upon
exercise of any Warrants), when issued and sold in accordance with the applica-
ble Indenture and the applicable Underwriting Agreement or any other duly autho-
rized, executed and delivered applicable valid and binding purchase agreement
will be valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except to the extent that en-
forcement thereof may be limited by (a) bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally, (b) general principles of equity (re-
gardless of whether enforceability is considered in a proceeding at law or in
equity), (c) public policy considerations which may limit the rights of parties
to obtain further remedies, (d) requirements that a claim with respect to any
Offered Debt Securities denominated other than in United States dollars (or a
judgment denominated other than in United States dollars in respect of such
claim) be converted into United States dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law, and (e) governmental authority
to limit, delay or prohibit the making of payments outside the United States or
in foreign currencies, currency units or composite currencies; and (2) if Common
Stock or Preferred Stock is issuable upon conversion or exchange of any
convertible
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 6
Offered Debt Securities, the Common Stock (including the accompanying Rights
issuable therewith) or Preferred Stock issuable upon conversion or exchange of
such Offered Debt Securities will be validly issued, fully paid and nonassess-
able, assuming the execution, authentication, issuance and delivery of the Of-
fered Debt Securities and conversion or exchange of the Offered Debt Securities
in accordance with the terms of the applicable Indenture relating thereto (and
assuming, with respect to Rights issuable with any Common Stock, the issuance of
the Rights in accordance with the terms of the Rights Agreement).
4. With respect to the shares of any series of Preferred Stock,
including, if applicable, Depositary Shares representing fractional interests in
any Preferred Stock (together, the "Offered Preferred Stock"), when (i) the
Registration Statement, as finally amended (including all necessary post-effec-
tive amendments), has become effective; (ii) an appropriate Prospectus Supple-
ment with respect to the shares of the Offered Preferred Stock has been pre-
pared, delivered and filed in compliance with the Securities Act and the
applicable rules and regulations thereunder; (iii) if the Offered Preferred
Stock is to be sold pursuant to a firm commitment underwritten offering, the
Underwriting Agreement with respect to the shares of the Offered Preferred Stock
has been duly authorized, executed and delivered by the Company and the other
parties thereto; (iv) the Board, including any appropriate committee appointed
thereby, and appropriate officers of the Company have taken all necessary corpo-
rate action to approve the issuance and terms of the shares of the Offered
Preferred Stock and related matters, including the adoption of a Certificate of
Designation for the Offered Preferred Stock in accordance with the applicable
provisions of New York law (the "Certificate of Designation"); (v) the filing of
the Certificate of Designation with the Secretary of State of the State of New
York has duly occurred; (vi) the terms of the Offered Preferred Stock and of
their issuance and sale
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 7
have been duly established in conformity with the Company's Restated Certificate
of Incorporation, including the Certificate of Designation relating to the Of-
fered Preferred Stock, and the By-laws of the Company so as not to violate any
applicable law, the Restated Certificate of Incorporation or By-laws of the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company;
(vii) in the case of Depositary Shares, the Depositary Agreement has been duly
executed and delivered; and (viii) certificates representing the shares of the
Offered Preferred Stock are duly executed, countersigned, registered and deliv-
ered upon payment of the agreed-upon consideration therefor (and, in the case of
Depositary Shares, such Preferred Stock certificates are delivered to the
Depositary for deposit in accordance with the laws of the State of New York
against issuance of the Receipts evidencing the Depositary Shares in accordance
with the terms of the Deposit Agreement), (1) the shares of the Offered Pre-
ferred Stock (including any Preferred Stock duly issued upon exercise of any
Warrants), when issued and sold in accordance with the applicable Underwriting
Agreement or any other duly authorized, executed and delivered applicable valid
and binding purchase agreement, will be duly authorized, validly issued, fully
paid and nonassessable, provided that the consideration therefor is not less
than the par value thereof; and (2) if the Offered Preferred Stock is con-
vertible or exchangeable into Common Stock, the Common Stock (including the
accompanying Rights issuable therewith) issuable upon conversion or exchange of
the Offered Preferred Stock will be duly authorized, validly issued, fully paid
and nonassessable, assuming the execution, authentication, issuance and delivery
of the Offered Preferred Stock and the conversion or exchange of the Offered
Preferred Stock in accordance with the terms of the Certificate of Designation
(and assuming, with respect to Rights issuable
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 8
with such Common Stock, the issuance of the Rights in accordance with the terms
of the Rights Agreement).
5. With respect to any offering of Common Stock, when (i) the
Registration Statement, as finally amended (including all necessary post-effec-
tive amendments) has become effective; (ii) an appropriate Prospectus Supplement
with respect to the Common Stock has been prepared, delivered and filed in
compliance with the Securities Act and the applicable rules and regulations
thereunder; (iii) if the Common Stock is to be sold pursuant to a firm commit-
ment underwritten offering, the Underwriting Agreement with respect to the
Common Stock has been duly authorized, executed and delivered by the Company and
the other parties thereto; (iv) the Board, including any appropriate committee
appointed thereby, and appropriate officers of the Company have taken all neces-
sary corporate action to approve the issuance of the Common Stock and related
matters; (v) the terms of the issuance and sale of the Common Stock have been
duly established in conformity with the Restated Certificate of Incorporation
and By-laws so as not to violate any applicable law, the Restated Certificate of
Incorporation or By-laws of the Company or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with
any restriction imposed by any court or governmental body having jurisdiction
over the Company; and (vi) certificates representing the shares of Common Stock
are duly executed, countersigned, registered and delivered upon payment of the
agreed-upon consideration therefor, the shares of Common Stock (including any
duly issued upon exercise of any Warrants), when issued and sold in accordance
with the Underwriting Agreement with respect to the Common Stock or any other
duly authorized, executed and delivered applicable valid and binding purchase
agreement, and the Rights issuable in connection therewith, when so issued in
accordance with the terms of the Rights Agreement, will be duly authorized,
validly issued, fully paid and nonassessable,
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 9
provided that the consideration therefor is not less than the par value thereof.
6. With respect to the issuance of any series of Warrants (the
"Offered Warrants"), when (i) the Registration Statement, as finally amended
(including all necessary post-effective amendments), has become effective;
(ii) an appropriate Prospectus Supplement with respect to the Offered Warrants
has been prepared, delivered and filed in compliance with the Securities Act and
the applicable rules and regulations thereunder; (iii) the warrant agreement
relating to the Offered Warrants (the "Warrant Agreement") in the form to be
filed as an exhibit to the Registration Statement, any amendment thereto or any
document incorporated by reference therein has been duly executed and delivered
as contemplated by the Board Resolutions; (iv) the terms of the Offered Warrants
and of their issuance and sale have been duly established in conformity with the
Warrant Agreement relating to such Offered Warrants so as not to violate any
applicable law, the Restated Certificate of Incorporation or By-laws of the
Company or result in a default under or breach of any agreement or instrument
binding upon the Company and so as to comply with any requirement or restriction
imposed by any court or governmental body having jurisdiction over the Company;
(v) the Offered Warrants have been duly executed, delivered and countersigned,
in accordance with the Warrant Agreement relating to such Offered Warrants, and
duly issued and sold in the applicable form to be filed as an exhibit to the
Registration Statement or any amendment thereto and in the manner contemplated
in the Registration Statement and any Prospectus Supplement relating thereto;
(vi) if the Offered Warrants are to be sold pursuant to a firm commitment under-
written offering, the Underwriting Agreement with respect to the Offered War-
rants has been duly authorized, executed and delivered by the Company and the
other parties thereto; and (vii) the Board, including any appropriate committee
appointed thereby, and appropriate officers of the Company have
<PAGE>
Securities and Exchange Commission
April 1, 1994
Page 10
taken all necessary corporate action to approve the issuance and terms of the
Offered Warrants and related matters, such Offered Warrants will be valid and
binding obligations of the Company, enforceable against the Company in accor-
dance with their respective terms, except to the extent that enforcement thereof
may be limited by (a) bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect relating
to creditors' rights generally, (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding at law or in equity), and
(c) public policy considerations which may limit the rights of parties to obtain
further remedies.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. I also consent to the reference to me
under the heading "Validity of Securities" in the Registration Statement. In
giving this consent, I do not thereby admit that I am in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ James W. Guedry
James W. Guedry
<PAGE>
EXHIBIT 12.1
INTERNATIONAL PAPER COMPANY AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(dollar amounts in millions)
(unaudited)
For the Years Ended December 31,
<TABLE>
<CAPTION>
TITLE 1989 1990 1991 1992 1993
----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
A)Earnings before income taxes, extraordinary
item and accounting changes $ 1,404.7 $ 945.9 $ 637.9 $ 206.1 $ 500.0
B)Add: Fixed charges excluding
capitalized interest 250.4 336.2 380.3 325.3 365.3
C)Add: Amortization of previously
capitalized interest 8.4 8.6 9.9 9.9 12.2
D)Less: Equity in undistributed
earnings of affiliates (6.7) (9.4) (10.8) (19.1) (25.9)
--------- ------- ------- ------- --------
E)EARNINGS BEFORE INCOME TAXES,
EXTRAORDINARY ITEM, ACCOUNTING
CHANGES AND FIXED CHARGES $ 1,656.8 $1,281.3 $1,017.3 $ 522.2 $ 851.6
--------- -------- -------- ------- ---------
--------- -------- -------- ------- ---------
FIXED CHARGES
F)Interest and amortization of
debt expense $ 228.7 $ 309.5 $ 351.1 $ 297.1 $ 334.5
G)Interest factor attributable
to rentals 21.7 26.7 29.2 28.2 30.8
H)Capitalized interest 10.9 26.3 36.4 42.0 12.2
--------- -------- -------- ------- --------
I)TOTAL FIXED CHARGES $ 261.3 $ 362.5 $ 416.7 $ 367.3 $ 377.5
--------- -------- -------- ------- --------
--------- -------- -------- ------- --------
J)RATIO OF EARNINGS TO FIXED CHARGES 6.34 3.53 2.44 1.42 2.26
--------- ------ ------- ------- --------
--------- ------ ------- ------- --------
</TABLE>
<PAGE>
EXHIBIT 12.2
INTERNATIONAL PAPER COMPANY AND CONSOLIDATED SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
(dollar amounts in millions)
(unaudited)
<TABLE>
<CAPTION>
For the Years Ended December 31,
TITLE 1989 1990 1991 1992 1993
----- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
A)Earnings before income taxes, extraordinary
item and accounting changes $ 1,404.7 $ 945.9 $ 637.9 $ 206.1 $ 500.0
B)Add: Combined fixed charges and preferred
stock dividends excluding capitalized
interest and preferred stock dividends 250.4 336.2 380.3 325.3 365.3
C)Add: Amortization of previously
capitalized interest 8.4 8.6 9.9 9.9 12.2
D)Less: Equity in undistributed
earnings of affiliates (6.7) (9.4) (10.8) (19.1) (25.9)
--------- ---------- --------- ---------- ------------
E)EARNINGS BEFORE INCOME TAXES,
EXTRAORDINARY ITEM, ACCOUNTING
CHANGES AND COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS $ 1,656.8 $ 1,281.3 $ 1,017.3 $ 522.2 $ 851.6
--------- ---------- --------- ---------- ------------
--------- ---------- --------- ---------- ------------
COMBINED FIXED CHARGES AND PREFERRED
STOCK DIVIDENDS
F)Interest and amortization of
debt expense $ 228.7 $ 309.5 $ 351.1 $ 297.1 $ 334.5
G)Interest factor attributable
to rentals 21.7 26.7 29.2 28.2 30.8
H)Pretax earnings required to cover
preferred stock dividends 31.1 - - - -
I)Capitalized interest 10.9 26.3 36.4 42.0 12.2
--------- ---------- --------- ---------- ------------
J)TOTAL COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS $ 292.4 $ 362.5 $ 416.7 $ 367.3 $ 377.5
--------- ---------- --------- ---------- ------------
--------- ---------- --------- ---------- ------------
K)RATIO OF EARNINGS TO COMBINED FIXED
CHARGES AND PREFERRED STOCK DIVIDENDS 5.67 3.53 2.44 1.42 2.26
--------- ---------- --------- ---------- ------------
--------- ---------- --------- ---------- ------------
</TABLE>
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 4,
1994 included or incorporated by reference in International Paper Company's
Form 10-K for the year ended December 31, 1993, and to all references to our
Firm included in this registration statement.
ARTHUR ANDERSEN & CO.
New York, New York,
March 28, 1994.
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
Know All Men By These Presents, that the undersigned hereby constitutes and
appoints ROBERT C. BUTLER, JAMES W. GUEDRY and JAMES P. MELICAN, and each of
them (with full power to each of them to act alone), their true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for them on their behalf and in their name, place and stead, in
any and all capacities, to sign, execute and affix their seal thereto and file
any and all Form S-3 Registration Statements on behalf of International Paper
Company, under the Securities Act of 1933, as amended, together with any and all
amendments (including post-effective amendments) to such Form S-3 Registration
Statements and to file the same, with all exhibits and other documents in
connection therewith, with the Securities and Exchange Commission, with respect
to the registration of any and all forms of securities, whether debt or equity
or rights or warrants for debt or equity and including securities with
conversion rights to another security or securities, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises in order to effectuate the same, for all intents and purposes, and
that the undersigned hereby ratify and confirm all that said attorneys-in-fact
and agents, or any of them, may lawfully do or cause to be done by virtue
hereof.
<PAGE>
Executed on the date set forth opposite their names
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
Chairman of the Board, February 8, 1994
- -------------------------- Chief Executive Officer
(John A. Georges) and Director
/s/ John T. Dillon Executive Vice February 8, 1994
- -------------------------- President and Director
(John T. Dillon)
/s/ Willard C. Butcher Director February 8, 1994
- --------------------------
(Willard C. Butcher)
/s/ Frederick B. Dent Director February 8, 1994
- --------------------------
(Frederick B. Dent)
/s/ William M. Ellinghaus Director February 8, 1994
- --------------------------
(William M. Ellinghaus)
Director February 8, 1994
- --------------------------
(Stanley C. Gault)
/s/ Thomas C. Graham Director February 8, 1994
- --------------------------
(Thomas C. Graham)
/s/ Arthur G. Hansen Director February 8, 1994
- --------------------------
(Arthur G. Hansen)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
/s/ William G. Kuhns Director February 8, 1994
- --------------------------
(William G. Kuhns)
/s/ Donald F. McHenry Director February 8, 1994
- --------------------------
(Donald F. McHenry)
/s/ Jane C. Pfeiffer Director February 8, 1994
- --------------------------
(Jane C. Pfeiffer)
/s/ Samuel R. Pierce, Jr. Director February 8, 1994
- --------------------------
(Samuel R. Pierce, Jr.)
/s/ Edmund T. Pratt, Jr. Director February 8, 1994
- --------------------------
(Edmund T. Pratt, Jr.)
/s/ Roger B. Smith Director February 8, 1994
- --------------------------
(Roger B. Smith)
/s/ Patrick F. Noonan Director February 8, 1994
- --------------------------
(Patrick F. Noonan)
</TABLE>
<PAGE>
Securities Act of 1933 File No. _________
(If application to determine eligibility
of trustee for delayed offering
pursuant to Section 305 (b) (2))
_______________________________________________________________________________
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
________________
INTERNATIONAL PAPER COMPANY
(Exact name of obligor as specified in its charter)
NEW YORK
(State or other jurisdiction of incorporation or organization)
13-0872805
(I.R.S. Employer Identification No.)
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK
(Address of principal executive offices)
10577
(Zip Code)
__________________________________
SENIOR DEBT SECURITIES
(Title of the indenture securities)
_____________________________________________________________________________
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control
with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12) , Registration
No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of
which documents are still in effect. (See Exhibit T-1
(Item 12), Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor
is in default. (Not applicable).
*6. -- The consents of United States institutional trustees required
by Section 321(b) of the Act.
(See Exhibit T-1, (Item 12), Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to
which there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 1st day April, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By Sheik Wiltshire
-----------------------
Sheik Wiltshire, Corporate Trust Officer
_________________
2
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
THE CHASE MANHATTAN BANK, N.A.
OF NEW YORK IN THE STATE OF NEW YORK, AT THE CLOSE OF BUSINESS ON
DECEMBER 31, 1993, PUBLISHED IN RESPONSE TO CALL MADE BY COMPTROLLER
OF THE CURRENCY, UNDER TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NUMBER 02370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS THOUSANDS
OF DOLLARS
CASH AND BALANCES DUE FROM
DEPOSITORY INSTITUTIONS:
NONINTEREST-BEARING BALANCES AND CURRENCY AND COIN $5,778,428
INTEREST-BEARING BALANCES 5,431,174
SECURITIES 7,439,029
FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER
AGREEMENTS TO RESELL IN DOMESTIC OFFICES OF THE
BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES
AND IN IBFS:
FEDERAL FUNDS SOLD 3,982,649
SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL 0
LOANS AND LEASE FINANCING RECEIVABLES:
LOANS AND LEASES, NET OF UNEARNED INCOME $48,856,930
LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES 1,065,877
LESS: ALLOCATED TRANSFER RISK RESERVE 0
-----------
LOAN AND LEASES, NET OF UNEARNED INCOME, ALLOWANCE,
AND RESERVE 47,791,053
ASSETS HELD IN TRADING ACCOUNTS 6,244,939
PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED
LEASES) 1,617,111
OTHER REAL ESTATE OWNED 1,189,024
INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND
ASSOCIATED COMPANIES 67,637
CUSTOMERS' LIABILITY TO THIS BANK ON ACCEPTANCE
OUTSTANDING 774,020
INTANGIBLE ASSETS 354,023
OTHER ASSETS 3,520,283
---------
TOTAL ASSETS $84,189,415
-----------
-----------
LIABILITIES
DEPOSITS:
IN DOMESTIC OFFICES $34,624,513
NONINTEREST-BEARING $13,739,371
INTEREST-BEARING 20,885,142
-----------
IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES,
AND IBFS 30,660,808
NONINTEREST-BEARING $ 2,473,222
INTEREST-BEARING 28,187,586
-----------
FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS
TO REPURCHASE IN DOMESTIC OFFICES OF THE BANK AND OF ITS
EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFS:
FEDERAL FUNDS PURCHASED 2,829,219
SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE 140,462
DEMAND NOTES ISSUED TO THE U.S. TREASURY 25,000
OTHER BORROWED MONEY 2,618,185
MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER
CAPITALIZED LEASES 41,366
BANK'S LIABILITY ON ACCEPTANCES, EXECUTED AND OUTSTANDING 780,289
SUBORDINATED NOTES AND DEBENTURES 2,360,000
OTHER LIABILITIES 3,697,556
----------
TOTAL LIABILITIES $77,777,398
-----------
-----------
LIMITED-LIFE PREFERRED STOCK AND RELATED SURPLUS 0
EQUITY CAPITAL
PERPETUAL PREFERRED STOCK AND RELATED SURPLUS 0
COMMON STOCK $ 910,494
SURPLUS 4,382,506
UNDIVIDED PROFITS AND CAPITAL RESERVES 920,258
NET UNREALIZED GAINS ON AVAILABLE-FOR-SALE SECURITIES 187,683
CUMULATIVE FOREIGN CURRENCY TRANSLATION ADJUSTMENTS 11,076
-----------
TOTAL EQUITY CAPITAL 6,412,017
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $84,189,415
-----------
-----------
I, LESTER J. STEPHENS, JR., SENIOR VICE PRESIDENT AND CONTROLLER OF THE
ABOVE-NAMED BANK DO HEREBY DECLARE THAT THIS REPORT OF CONDITION IS TRUE
AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF.
(SIGNED) LESTER J. STEPHENS, JR.
WE THE UNDERSIGNED DIRECTORS, ATTEST TO THE CORRECTNESS OF THIS STATEMENT
OF RESOURCES AND LIABILITIES. WE DECLARE THAT IT HAS BEEN EXAMINED BY US,
AND TO THE BEST OF OUR KNOWLEDGE AND BELIEF HAS BEEN PREPARED IN
CONFORMANCE WITH THE INSTRUCTIONS AND IS TRUE AND CORRECT.
(SIGNED) THOMAS G. LABRECQUE
(SIGNED) ARTHUR F. RYAN DIRECTORS
(SIGNED) RICHARD J. BOYLE
3
<PAGE>
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
_____________________________________________________________________________
_____________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
________________
INTERNATIONAL PAPER COMPANY
(Exact name of obligor as specified in its charter)
NEW YORK
(State or other jurisdiction of incorporation or organization)
13-0872805
(I.R.S. Employer Identification No.)
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK
(Address of principal executive offices)
10577
(Zip Code)
__________________________________
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
______________________________________________________________________________
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
The Trustee is not the obligor, nor is the Trustee directly
or indirectly controlling, controlled by, or under common
control with the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12) , Registration
No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association)and The Chase Bank of New York
(National Association) to commence business and a copy of
approval of merger of said corporations, all of which
documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank
(National Association) to exercise corporate trust powers,
both of which documents are still in effect. (See Exhibit T-1
(Item 12), Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the
obligor is in default. (Not applicable).
*6. -- The consents of United States institutional trustees
required by Section 321(b) of the Act.
(See Exhibit T-1, (Item 12), Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the
requirements of its supervising or examining authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to
which there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by
the trustee of all facts on which to base a responsive answer to Item 2 the
answer to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939,
the trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 1st day April, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By Sheik Wiltshire
---------------------------
Sheik Wiltshire, Corporate Trust Officer
_________________
2
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
CONSOLIDATING DOMESTIC AND FOREIGN SUBSIDIARIES OF
THE CHASE MANHATTAN BANK, N.A.
OF NEW YORK IN THE STATE OF NEW YORK, AT THE CLOSE OF BUSINESS ON
DECEMBER 31, 1993, PUBLISHED IN RESPONSE TO CALL MADE BY COMPTROLLER
OF THE CURRENCY, UNDER TITLE 12, UNITED STATES CODE, SECTION 161.
CHARTER NUMBER 02370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS THOUSANDS
OF DOLLARS
CASH AND BALANCES DUE FROM
DEPOSITORY INSTITUTIONS:
NONINTEREST-BEARING BALANCES AND CURRENCY AND COIN $5,778,428
INTEREST-BEARING BALANCES 5,431,174
SECURITIES 7,439,029
FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER
AGREEMENTS TO RESELL IN DOMESTIC OFFICES OF THE
BANK AND OF ITS EDGE AND AGREEMENT SUBSIDIARIES
AND IN IBFS:
FEDERAL FUNDS SOLD 3,982,649
SECURITIES PURCHASED UNDER AGREEMENTS TO RESELL 0
LOANS AND LEASE FINANCING RECEIVABLES:
LOANS AND LEASES, NET OF UNEARNED INCOME $48,856,930
LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES 1,065,877
LESS: ALLOCATED TRANSFER RISK RESERVE 0
-----------
LOAN AND LEASES, NET OF UNEARNED INCOME, ALLOWANCE,
AND RESERVE 47,791,053
ASSETS HELD IN TRADING ACCOUNTS 6,244,939
PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED
LEASES) 1,617,111
OTHER REAL ESTATE OWNED 1,189,024
INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND
ASSOCIATED COMPANIES 67,637
CUSTOMERS' LIABILITY TO THIS BANK ON ACCEPTANCE
OUTSTANDING 774,020
INTANGIBLE ASSETS 354,023
OTHER ASSETS 3,520,283
---------
TOTAL ASSETS $84,189,415
-----------
-----------
LIABILITIES
DEPOSITS:
IN DOMESTIC OFFICES $34,624,513
NONINTEREST-BEARING $13,739,371
INTEREST-BEARING 20,885,142
-----------
IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES,
AND IBFS 30,660,808
NONINTEREST-BEARING $ 2,473,222
INTEREST-BEARING 28,187,586
-----------
FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER AGREEMENTS
TO REPURCHASE IN DOMESTIC OFFICES OF THE BANK AND OF ITS
EDGE AND AGREEMENT SUBSIDIARIES, AND IN IBFS:
FEDERAL FUNDS PURCHASED 2,829,219
SECURITIES SOLD UNDER AGREEMENTS TO REPURCHASE 140,462
DEMAND NOTES ISSUED TO THE U.S. TREASURY 25,000
OTHER BORROWED MONEY 2,618,185
MORTGAGE INDEBTEDNESS AND OBLIGATIONS UNDER
CAPITALIZED LEASES 41,366
BANK'S LIABILITY ON ACCEPTANCES, EXECUTED AND OUTSTANDING 780,289
SUBORDINATED NOTES AND DEBENTURES 2,360,000
OTHER LIABILITIES 3,697,556
----------
TOTAL LIABILITIES $77,777,398
-----------
-----------
LIMITED-LIFE PREFERRED STOCK AND RELATED SURPLUS 0
EQUITY CAPITAL
PERPETUAL PREFERRED STOCK AND RELATED SURPLUS 0
COMMON STOCK $ 910,494
SURPLUS 4,382,506
UNDIVIDED PROFITS AND CAPITAL RESERVES 920,258
NET UNREALIZED GAINS ON AVAILABLE-FOR-SALE SECURITIES 187,683
CUMULATIVE FOREIGN CURRENCY TRANSLATION ADJUSTMENTS 11,076
-----------
TOTAL EQUITY CAPITAL 6,412,017
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL $84,189,415
-----------
-----------
I, LESTER J. STEPHENS, JR., SENIOR VICE PRESIDENT AND CONTROLLER OF THE
ABOVE-NAMED BANK DO HEREBY DECLARE THAT THIS REPORT OF CONDITION IS TRUE
AND CORRECT TO THE BEST OF MY KNOWLEDGE AND BELIEF.
(SIGNED) LESTER J. STEPHENS, JR.
WE THE UNDERSIGNED DIRECTORS, ATTEST TO THE CORRECTNESS OF THIS STATEMENT
OF RESOURCES AND LIABILITIES. WE DECLARE THAT IT HAS BEEN EXAMINED BY US,
AND TO THE BEST OF OUR KNOWLEDGE AND BELIEF HAS BEEN PREPARED IN
CONFORMANCE WITH THE INSTRUCTIONS AND IS TRUE AND CORRECT.
(SIGNED) THOMAS G. LABRECQUE
(SIGNED) ARTHUR F. RYAN DIRECTORS
(SIGNED) RICHARD J. BOYLE
3
