SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
May 19, 1994
Date of Report (Date of earliest event reported)
INTERNATIONAL PAPER COMPANY
(Exact name of Registrant as specified in its charter)
New York 1-3157 13-0872805
(State of Commission (IRS Employer
Incorporation) File Identification
Number)
Two Manhattanville Road, Purchase, NY 10577
(Address of principal executive offices)
914-397-1500
(Registrant's telephone No.)
ITEM I. CHANGES IN CONTROL OF REGISTRANT
N/A
ITEM II. ACQUISITION OR DISPOSITION OF ASSETS
N/A
ITEM III. BANKRUPTCY OR RECEIVERSHIP
N/A
ITEM IV. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
N/A
ITEM V. OTHER EVENTS
On May 19, 1994, International Paper Company
(the "Company") entered into an Underwriting
Agreement with Kidder, Peabody & Co.
Incorporated and CS First Boston Corporation in
connection with the proposed issuance and sale
of $150,000,000 aggregate principal amount of
the Company's 71/2% Notes due 2004.
ITEM VI. RESIGNATIONS OF REGISTRANT'S DIRECTORS
N/A
ITEM VII. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements:
N/A
(b) Pro Forma Financial Information:
N/A
(c) Exhibits:
1(a) Underwriting Agreement dated May 19,
1994 among the Company, Kidder,
Peabody & Co. Incorporated and CS
First Boston Corporation.
1(b) International Paper Company
Underwriting Agreement Standard
Provisions (Debt) dated as of May 19,
1994.
1(c) International Paper Company
Underwriting Agreement Standard
Provisions (Preferred Stock) dated as
of May 19, 1994.
1(d) International Paper Company
Underwriting Agreement Standard
Provisions (Common Stock) dated as of
May 19, 1994.
4(a) Indenture relating to Senior Debt
Securities, dated as of April 1,
1994, between the Company and The
Chase Manhattan Bank, N.A., as
trustee.
4(b) Indenture relating to Subordinated
Debt Securities, dated as of April 1,
1994, between the Company and The
Chase Manhattan Bank, N.A., as
trustee.
4(c) Form of Note.
12 Statement re: Calculation of Ratio of
Earnings to Fixed Charges.
ITEM VIII. CHANGES IN FISCAL YEAR
N/A
Signatures
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this
report to be signed on its behalf by the undersigned
thereunto duly authorized.
INTERNATIONAL PAPER COMPANY
(Registrant)
Date: May 23, 1994 /s/SYVERT E. NERHEIM
Purchase, NY Syvert E. Nerheim
Assistant Secretary
EXHIBIT INDEX
1(a) Underwriting Agreement dated May 19, 1994 among the
Company, Kidder, Peabody & Co. Incorporated and CS
First Boston Corporation.
1(b) International Paper Company Underwriting Agreement
Standard Provisions (Debt) dated as of May 19,
1994.
1(c) International Paper Company Underwriting Agreement
Standard Provisions (Preferred Stock) dated as of
May 19, 1994.
1(d) International Paper Company Underwriting Agreement
Standard Provisions (Common Stock) dated as of May
19, 1994.
4(a) Indenture relating to Senior Debt Securities, dated
as of April 1, 1994, between the Company and The
Chase Manhattan Bank, N.A., as trustee.
4(b) Indenture relating to Subordinated Debt Securities,
dated as of April 1, 1994, between the Company and
The Chase Manhattan Bank, N.A., as trustee.
4(c) Form of Note.
12 Statement re: Calculation of Ratio of Earnings to
Fixed Charges.
INTERNATIONAL PAPER
SYVERT E. NERHEIM TWO MANHATTANVILLE ROAD
ASSISTANT SECRETARY PURCHASE NY 10577 2196
& MANAGER PHONE 914-397-1578
INVESTOR & U.S. SUBSIDIARY FAX 914-397-1909
SERVICES
UNDERWRITING AGREEMENT
May 19, 1994
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 $150,000,000 aggregate principal amount of its
7-1/2% Notes due 2004 (the "Offered Securities").
Subject to the terms and conditions set forth or
incorporated by reference herein, the Company hereby
agrees to sell and Kidder, Peabody and Co. Incorporated
and CS First Boston Corporation (the "Underwriters")
severally agree to purchase the Offered Securities at a
purchase price equal to 98.793% of the principal amount
of the Offered Securities, plus interest, if any, accrued
on the Offered Securities from May 15, 1994.
The Underwriters will pay for such Offered
Securities upon delivery thereof at the offices of
Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue,
New York, New York at 10:00 a.m., New York City time, May
26, 1994, or at such other time as shall be jointly
designated by the Underwriters and the Company.
The Offered Securities will be issued pursuant
to the Indenture relating to Senior Debt Securities dated
as of April 1, 1994 (the "Senior Indenture"), between the
Company and The Chase Manhattan Bank, N.A., as Trustee,
and will have the following terms:
MATURITY: May 15, 2004
INTEREST RATE: 7-1/2%
INTEREST PAYMENT DATES: May 15 and November 15,
commencing November 15, 1994
REDEMPTION PROVISIONS: None
SINKING FUND PROVISIONS: None
DEFEASANCE PROVISIONS: The Senior Indenture provisions
relating to legal and covenant
defeasance will apply to the
Offered Securities
CONVERSION RIGHTS: None
REPURCHASE UPON
CHANGE OF CONTROL: The Offered Securities will be
redeemable at the option of the
Holders in the event of a Change
in Control.
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.
All the provisions contained in the document
entitled International Paper Company Underwriting
Agreement Standard Provisions (Debt), 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.
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,
KIDDER, PEABODY & CO. INCORPORATED
CS FIRST BOSTON CORPORATION
By: KIDDER, PEABODY & CO. INCORPORATED
By: /s/H. Andrew Brownfield, III
Name: H. Andrew Brownfield, III
Title: Vice President
Accepted as of the date hereof:
INTERNATIONAL PAPER COMPANY
By: /s/E. William Boehmler
Name: E. William Boehmler
Title: Vice President and Treasurer
SCHEDULE A
Principal
Underwriter Amount
Kidder, Peabody & Co. Incorporated. . . . $75,000,000
CS First Boston Corporation. . . . . . . . $75,000,000
Total . . . . . . . . . . . . . . . . $150,000,000
INTERNATIONAL PAPER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
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 The 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
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 of the Underwriters, the fee set forth in the
Underwriting Agreement with respect to the Contract
Securities. The Underwriters will not have any
responsibility in respect of 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 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 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:
(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 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
affecting 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
Underwriting 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 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.
(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).
(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 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 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.
(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
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
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
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.
If the indemnification provided for in this
Article IX 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 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 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 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
liability 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) 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.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed as of the 19th day of May,
1994.
INTERNATIONAL PAPER COMPANY
By: E. WILLIAM BOEHMLER
Name: E. William Boehmler
Title: Vice President and
Treasurer
[Seal]
Attest:
SYVERT E. NERHEIM
Name: Syvert E. Nerheim
Title: Assistant Secretary
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 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
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;
(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 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 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
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
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,
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 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,
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 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.
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,
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:
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 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:
SCHEDULE A
Principal
Underwriter Amount
Manager . . . . . . . . . . . . . . . . . $
Total . . . . . . . . . $
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:
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 by
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
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:
INTERNATIONAL PAPER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (PREFERRED STOCK)
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
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 of the Underwriters, the fee set forth in the
Underwriting Agreement with respect to the Contract
Securities. The Underwriters will not have any
responsibility in respect of 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
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:
(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 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
affecting 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 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.
(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 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
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 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,
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.
(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
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
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
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.
If the indemnification provided for in this
Article IX 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 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 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 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.
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.
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.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed the 19th day of May, 1994.
INTERNATIONAL PAPER COMPANY
By: E. William Boehmler
Name: E. William Boehmler
Title: Vice President and Treasurer
[Seal]
Attest:
SYVERT E. NERHEIM
Name: Syvert E. Nerheim
Title: Assistant Secretary
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.
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
(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 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 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 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 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 in 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
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.
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,
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 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,
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
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,
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:
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)
Underwriter[s']['s] Compensation: $___,
payable to the [Manager[s] for the proportionate accounts
of the] Underwriter[s] on the Closing Date. (1)
(1) Include if purchase is at public offering price and
compensation is payable separately.
[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
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 (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.
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:
[Underwriters, c/o]
[Date]
Page 4
SCHEDULE A
Number of
Underwriter Shares
----------------------------- -------
Total
-------
-------
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:
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
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:
INTERNATIONAL PAPER COMPANY
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (COMMON STOCK)
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 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
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:
(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 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 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
affecting 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 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.
(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 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
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 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.
(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 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 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.
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
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 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 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 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
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 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.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed as of the 19th day of May,
1994.
INTERNATIONAL PAPER COMPANY
By: E. WILLIAM BOEHMLER
Name: E. William Boehmler
Title: Vice President and
Treasurer
[Seal]
Attest:
SYVERT E. NERHEIM
Name: Syvert E. Nerheim
Title: Assistant Secretary
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 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 Underwriting
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
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;
(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;
(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
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
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,
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
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,
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 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,
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)(1) Underwriter[s']['s] Compensation: $_____,
payable to the [Manager[s] for the proportionate
accounts of the] Underwriter[s] on the Closing Date.
[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.]
1 Include if purchase is at public offering price and
compensation is payable separately.
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.
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:
International Paper Company
[Date]
Page 5
SCHEDULE A
Number of
Underwriter Shares
_________
Total................._______
_______
INTERNATIONAL PAPER COMPANY
TO
THE CHASE MANHATTAN BANK, N.A.
Trustee
____________
Indenture
Dated as of April 1, 1994
____________
Senior Debt Securities
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.
TABLE OF CONTENTS(1)
PAGE
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . 1
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
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
1 NOTE: This table of contents shall not, for any
purpose, be deemed to be a part of the Indenture.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series . . 25
SECTION 3.2 Denominations . . . . . . . . . . . . . . 29
SECTION 3.3 Execution, Authentication, Delivery and
Dating . . . . . . . . . . . . . . . . . 29
SECTION 3.4 Temporary Securities . . . . . . . . . . 32
SECTION 3.5 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . 35
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities and Coupons . . . . . . . . 40
SECTION 3.7 Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . 41
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . 43
SECTION 3.9 Cancellation . . . . . . . . . . . . . . 43
SECTION 3.10 Computation of Interest . . . . . . . . . 44
SECTION 3.11 Electronic Security Issuance . . . . . . 44
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . 45
SECTION 4.2 Application of Trust Money . . . . . . . 47
SECTION 4.3 Satisfaction, Discharge and Defeasance
of Securities of any Series . . . . . . 47
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . 50
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment . . . . . . . . . . . . . . . 52
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . 54
SECTION 5.4 Trustee May File Proofs of Claim. . . . . 55
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons . . 56
SECTION 5.6 Application of Money Collected . . . . . 56
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 . . . 58
SECTION 5.10 Rights and Remedies Cumulative . . . . . 58
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 . . . . . . . . . 59
SECTION 5.14 Undertaking for Costs . . . . . . . . . . 60
SECTION 5.15 Waiver of Stay or Extension Laws . . . . 60
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Rights of Trustee . . . . . . . . 61
SECTION 6.2 Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . 62
SECTION 6.3 May Hold Securities . . . . . . . . . . . 62
SECTION 6.4 Money Held in Trust . . . . . . . . . . . 62
SECTION 6.5 Compensation and Reimbursement . . . . . 63
SECTION 6.6 Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 63
SECTION 6.7 Acceptance of Appointment by Successor . 65
SECTION 6.8 Disqualification; Conflicting Interests . 67
SECTION 6.9 Corporate Trustee Required; Eligibility . 67
SECTION 6.10 Preferential Collection of Claims
Against Company . . . . . . . . . . . . 67
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; Communica
tions to Holders . . . . . . . . . . . 70
SECTION 7.2 Reports by Trustee . . . . . . . . . . . 72
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 . . . . . . . . . . . . . . . . . 77
SECTION 9.3 Execution of Supplemental Indentures . . 78
SECTION 9.4 Effect of Supplemental Indentures . . . . 79
SECTION 9.5 Conformity with Trust Indenture Act . . . 79
SECTION 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 79
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . 80
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 . . . . . . . . . . . 84
SECTION 10.5 Existence . . . . . . . . . . . . . . . . 85
SECTION 10.6 Purchase of Securities by Company or
Subsidiary . . . . . . . . . . . . . . 85
SECTION 10.7 Limitation on Liens . . . . . . . . . . . 85
SECTION 10.8 Limitation on Sale and Lease-Back
Transactions . . . . . . . . . . . . . 88
SECTION 10.9 Statement by Officers as to Default . . . 88
SECTION 10.10 Waiver of Certain Covenants . . . . . . . 89
SECTION 10.11 Defeasance of Certain Obligations . . . . 89
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . . . 91
SECTION 11.2 Election to Redeem; Notice to Trustee . . 92
SECTION 11.3 Selection by Trustee of Securities to Be
Redeemed . . . . . . . . . . . . . . . . 92
SECTION 11.4 Notice of Redemption . . . . . . . . . . 93
SECTION 11.5 Deposit of Redemption Price . . . . . . . 94
SECTION 11.6 Securities Payable on Redemption Date . . 94
SECTION 11.7 Securities Redeemed in Part . . . . . . . 95
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . . . 96
SECTION 12.2 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . 96
SECTION 12.3 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . 97
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . . . 98
SECTION 13.2 Call, Notice and Place of Meetings . . . 98
SECTION 13.3 Persons Entitled to Vote at Meetings . . 99
SECTION 13.4 Quorum; Action . . . . . . . . . . . . . 99
SECTION 13.5 Determination of Voting Rights; Conduct
and Adjournment Of Meetings. . . . . . . 101
SECTION 13.6 Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . 102
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 Applicability of Article . . . . . . . . 103
SECTION 14.2 Redemption at Option of Holders Upon a
Change in Control of the Company . . . 103
SECTION 14.3 Notice of Change in Control . . . . . . . 104
SECTION 14.4 Deposit of Redemption Price . . . . . . . 104
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 Applicability of Article . . . . . . . . 105
SECTION 15.2 Exercise of Conversion Privilege . . . . 105
SECTION 15.3 No Fractional Shares . . . . . . . . . . 107
SECTION 15.4 Adjustment of Conversion Price . . . . . 108
SECTION 15.5 Notice of Certain Corporate Actions . . . 108
SECTION 15.6 Reservation of Shares of Common Stock . . 109
SECTION 15.7 Payment of Certain Taxes Upon
Conversion . . . . . . . . . . . . . . 110
SECTION 15.8 Nonassessability . . . . . . . . . . . . 110
SECTION 15.9 Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . . . 110
SECTION 15.10 Duties of Trustee Regarding Conversion . 112
SECTION 15.11 Repayment of Certain Funds Upon
Conversion . . . . . . . . . . . . . . 112
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 Indenture to provide for the issuance
from time to time of its unsecured debentures, notes or
other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in
this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as
otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article
have the meanings assigned to them in this
Article and include the plural as well as the
singular;
(2) all other terms used herein which are
defined in the Trust Indenture Act, either
directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to
them in accordance with generally accepted
accounting principles in the United States of
America, and, except as otherwise herein
expressly provided, the term "generally
accepted accounting principles" with respect to
any computation required or permitted hereunder
shall mean such accounting principles as are
generally accepted in the United States of
America at the date of this instrument; and
(4) the words "herein", "hereof" and
"hereunder" and other words of similar import
refer to this Indenture as a whole and not to
any particular Article, Section or other
subdivision.
Certain terms used principally in Article Six are
defined in that Article.
"Act", when used with respect to any Holder of a
Security, has the meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such
specified Person. For the purposes of this definition,
"control", when used with respect to any specified
Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract
or otherwise; and the terms "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 payments during the remaining term of any lease
(including any period for which such lease has been
extended) entered into in connection with a sale and
lease-back transaction.
"Authenticating Agent" means any Person authorized
by the Trustee pursuant to Section 6.14 to act on behalf
of the Trustee to authenticate Securities of one or more
series.
"Authorized Newspaper" means a newspaper, in the
English language or in an official language of the
country of publication, customarily published on each
Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the
place, in connection with which the term is used, or in
the financial community of such place. Where successive
publications are required to be made in Authorized
Newspapers, the successive publications may be made in
the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on
any Business Day.
"Bearer Security" means any Security in the form set
forth in either Exhibit C or Exhibit D to this Indenture
or established pursuant to Section 2.1 which is payable
to bearer.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
of that board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the
legend specified in Section 2.4, evidencing all or part
of a series of Securities, issued to the Depository for
such series or its nominee, and registered in the name of
such Depository or nominee. Book-Entry Securities shall
not be deemed to be securities in global form for
purposes of Sections 2.1 and 2.3 and Article III of the
Indenture.
"Business Day", when used with respect to any Place
of Payment or any other particular location referred to
in this Indenture or in the Securities, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of
Payment or other location are authorized or obligated by
law or executive order to close.
"Change in Control" shall mean a change in control
of the Company which shall be deemed to have occurred at
such time or times as (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 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.
"Coupon" means any interest coupon appertaining to a
Bearer Security.
"Defaulted Interest" has the meaning specified in
Section 3.7.
"Depository" means, with respect to the Securities
of any series issuable or issued in whole or in part in
the form of one or more Book-Entry Securities, the
clearing agency registered under the Securities Exchange
Act of 1934, as amended specified for that purpose as
contemplated by Section 3.1."
"Dollar" or "$" means a dollar or other equivalent
unit in such coin or currency of the United States of
America as at the time shall be legal tender for the
payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear
System.
"Event of Default" has the meaning specified in
Section 5.1.
"Exchange Date" has the meaning specified in Section
3.4.
"Exercise Period" means the period commencing with
the day notice is first given to Holders by the Company
pursuant to Section 14.3 of a Change in Control and
ending with the day twenty days thereafter, excluding the
day such notice is first given and including such
twentieth day.
"Forestlands" shall mean at any time property in the
United States which contains standing timber which is, or
upon completion of a growth cycle then in process is
expected to become, of a commercial quantity and of
merchantable quality excluding from the term
"Forestlands", however, any land which at the time is
held by, or has been or is after the date hereof
transferred to a Subsidiary primarily for development
and/or sale, and not primarily for the production of any
lumber or other timber products.
"Funded Debt" shall mean indebtedness for money
borrowed which by its terms matures at, or is extendible
or renewable at the option of the obligor, to a date more
than twelve months after the date of the creation of such
indebtedness.
"Holder", when used with respect to any Security,
means in the case of a Registered Security, the Person in
whose name the Security is registered in the Security
Register and in the case of a Bearer Security the bearer
thereof and, when used with respect to any coupon, means
the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of
Securities established as contemplated by Section 3.1.
"Interest", when used with respect to an Original
Issue Discount Security which by its terms bears interest
only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", when used with respect to
any Security, means the Stated Maturity of an installment
of interest on such Security.
"Maturity", when used with respect to any Security,
means the date on which the principal of such Security or
an installment of principal becomes due and payable as
therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, call for
redemption or otherwise.
"Officers' Certificate" means a certificate signed
by the Chairman of the Board, the Vice Chairman of the
Board, the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the
Trustee. One of the Officers signing an Officers'
Certificate given pursuant to Section 10.9 shall be the
principal executive, financial or accounting officer of
the Company.
"Opinion of Counsel" means a written opinion of
counsel, who may be counsel for the Company, and who
shall be acceptable to the Trustee.
"Original Issue Discount Security" means any
Security which provides for an amount less than the
principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof
pursuant to Section 5.2.
"Outstanding", when used with respect to Securities,
means, as of the date of determination, all Securities
theretofore authenticated and delivered under this
Indenture, except:
(i) Securities theretofore cancelled by
the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities for whose payment or
redemption money in the necessary amount has
been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by
the Company (if the Company shall act as its
own Paying Agent) for the Holders of such
Securities and any coupons appertaining
thereto; provided that, if such Securities are
to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee
has been made; and
(iii) Securities which have been paid
pursuant to Section 3.6 or in exchange for or
in lieu of which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been
presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide
purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of
Holders of Securities (i) the principal amount of an
Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of
such determination upon acceleration of the Maturity
thereof pursuant to Section 5.2, (ii) the principal
amount of a Security denominated in a foreign currency or
currencies shall be the U.S. dollar equivalent,
determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such
Security of the amount determined as provided in (i)
above) of such Security, and (iii) Securities owned by
the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other 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
satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other 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 mutilated,
destroyed, lost or stolen coupon appertains shall be
deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security or the Security to
which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Principal Manufacturing Facility" shall mean any
paperboard, paper or pulp mill or any paper converting
plant of the Company or any Subsidiary which is located
within the United States, other than any such mill or
plant or portion thereof which is financed by obligations
issued by a State, a Territory, or a possession of the
United States, or any political subdivision of any of the
foregoing, or the District of Columbia, the interest on
which is excludable from gross income of the holders
thereof pursuant to the provisions of Section 1.3(a) of
the Internal Revenue Code (or any successor to such
provision) as in effect at the time of issuance of such
obligations, or which, in the opinion of the Board of
Directors, is not of material importance to the total
business conducted by the Company and its Subsidiaries as
an entirety.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such
redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any
Security to be redeemed, means the price at which it is
to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form
set forth in either Exhibit A or Exhibit B to this
Indenture or established pursuant to Section 2.1 which is
registered in the Security Register.
"Regular Record Date" for the interest payable on
any Interest Payment Date on the Registered Securities of
any series means the date specified for that purpose as
contemplated by Section 3.1., whether or not such 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.
"Special Record Date" for the payment of any
Defaulted Interest on the Registered Securities of any
series means a date fixed by the Trustee pursuant to
Section 3.7.
"Stated Maturity", when used with respect to any
Security or any installment of principal thereof or
interest thereon, means the date specified in such
Security or a coupon representing such installment of
interest as the fixed date on which the principal of such
Security or such installment of principal or interest is
due and payable.
"Subsidiary" shall mean any corporation of which at
least a majority of the outstanding stock having by the
terms thereof ordinary voting power to elect a majority
of the board of directors of such corporation (whether or
not at the time stock of any other class or classes of
such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by the
Company, or by one or more Subsidiaries, or by the
Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act
of 1939 as in force at the date as of which this
instrument was executed, provided, however, that in the
event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"United States" means the United States of America
(including the States and the District of Columbia), its
territories, its possessions and other areas subject to
its jurisdiction.
"United States Alien" means any Person who, for
United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-
resident alien fiduciary of a foreign estate or trust, or
a foreign partnership one or more of the members of which
is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or
trust.
"U.S. Government Obligations" means direct
obligations of the United States for the payment of which
its full faith and credit is pledged, or obligations of a
person controlled or supervised by and acting as an
agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States which,
in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S.
Government Obligations or a specific payment of or
interest on any such U.S. Government Obligations held by
such custodian for the account of the holder of such
depository receipt, provided that (except as required by
law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the
custodian in respect of the U.S. Government 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 accordance with accepted financial
practice.
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee
an Officers' 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 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
representations by, an officer or officers of the Company
stating that the information with respect to such factual
matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing.
If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or
taken by Holders of such series may, alternatively, be
embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments
and any such record. Except as herein otherwise
expressly provided, such action shall become effective
when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy, or of the
holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any
such instrument or writing, or the authority of the
Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of
Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of
holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved
by the certificate or affidavit of the Person holding
such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate
or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange
for a Registered Security, or (4) such Bearer Security is
no longer Outstanding. The principal amount and serial
numbers of Bearer Securities held by any Person, and the
date of holding the same, may also be proved in any other
manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action
is made upon such Security.
(f) With respect to the Securities of any Series
all or part of which are represented by Book-Entry
Securities, the following provisions shall apply:
(1) Upon receipt by the Trustee of (i)
any written notice directing the time, method
or place of conducting any proceeding or
exercising any 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
Holder, or a proxy of a Holder, from giving,
(i) after the expiration of such 90-day period,
a new demand, request or notice identical to a
demand, request or notice which has been
canceled pursuant to the proviso to the
preceding sentence or (ii) during any such 90-
day period, a new demand, request or notice
which has been canceled pursuant to the proviso
to the preceding sentence or (iii) during any
such 90-day period, a new demand, request or
notice contrary to or different from such
demand, request or notice, in either of which
events a new record date shall be 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 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 Indenture Act, the Company shall
not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any action to
be given or taken by Holders pursuant to Section 5.1, 5.2
or 5.12.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the
Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it
at the address of its principal office
specified in the first paragraph of this
instrument, to the attention of its Secretary,
or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of
Securities of any event:
(1) such notice shall be sufficiently
given to Holders of Registered Securities if in
writing and mailed, first-class postage
prepaid, to each Holder of a Registered
Security affected by such event, at the address
of such Holder as it appears in the Security
Register, not earlier than the earliest date,
and not later than the latest date, prescribed
for the giving of such notice; and
(2) such notice shall be sufficiently
given to Holders of Bearer Securities if
published in an Authorized Newspaper in The
City of New York, The City of London and in
such other city or cities as may be specified
in such Securities on a Business Day at least
twice, the first such publication to be not
earlier than the earliest date, and not later
than the latest date, prescribed for the giving
of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as
shall be made with the approval of the Trustee shall
constitute sufficient notice to such Holders for every
purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication
of any Authorized Newspaper or Authorized Newspapers or
by reason of any other cause it shall be impracticable to
publish any notice to Holders of Bearer Securities as
provided above, then such notification as shall be given
with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall
affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders of
Securities shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.7 Language of Notices, Etc.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except
that any published notice may be in an official language
of the country of publication.
SECTION 1.8 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions
of the Trust Indenture Act, such required provision shall
control.
SECTION 1.9 Effect of Headings 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.
SECTION 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 1.11 Separability Clause.
In case any provision in this Indenture or the
Securities or coupons shall be invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.12 Benefits of Indenture.
Nothing in this Indenture or the Securities or
coupons, express or implied, shall give to any Person,
other than the parties hereto, their successors hereunder
and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.13 Governing Law.
This Indenture and the Securities and coupons shall
be governed by and construed in accordance with the laws
of the State of New York without regard to conflicts of
laws.
SECTION 1.14 Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities or coupons other than a provision in
the Securities of any series which specifically states
that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as
if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest
shall accrue on the amount so payable for the period from
and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Registered Securities, if any, of each series
and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms set
forth in Exhibits A, B, C or D to this Indenture, or in
such other form (including temporary or permanent global
form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined
by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or
coupons. If temporary Securities of any series are
issued in global form as permitted by Section 3.4, the
form thereof shall be established as provided in the
preceding sentence. If the forms of Securities or
coupons of any series (or any such temporary global
Security) are established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and
delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by
Section 3.1, Securities in bearer form shall have
interest coupons attached.
The definitive Securities and coupons, if any, shall
be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as
determined by the officers executing such Securities or
coupons, as evidenced by their execution of such
Securities or coupons.
SECTION 2.2 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.
The provisions of the last sentence of Section 3.3
shall apply to any security represented by a Security in
global form if such Security was never issued and sold by
the Company and the Company delivers to the Trustee the
Security in global form together with written instructions
(which need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel) with regard to the
reduction in the principal amount of Securities
represented thereby, together with the written statement
contemplated by the last sentence of Section 3.3.
Notwithstanding the provisions of Sections 2.1 and
3.7, unless otherwise specified as contemplated by Section
3.1, payment of principal of and any premium and interest
on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and
except as provided in the preceding paragraph, the
Company, the Trustee and any agent of the Company and the
Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by
a permanent global Security as shall be specified in a
written statement of the Holder of such permanent global
Security or, in the case of a permanent global Security in
bearer form, of Euro-clear or CEDEL S.A. which is provided
to the Trustee by such Person.
SECTION 2.4 Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered
hereunder shall bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of a Depository or a nominee of a
Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the
Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security
as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository) may be
registered except in such limited circumstances."
SECTION 2.5 Form of Conversion Notice.
The Form of conversion notice for the conversion of
Securities into shares of Common Stock or other securities
of the Company shall be in substantially the form included
with the applicable form of Securities as set forth in
Exhibits A,B,C, and D hereto.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is
unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board
Resolution and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the
series (which shall distinguish the Securities
of the series from all other Securities);
(2) any limit upon the aggregate principal
amount of the Securities of the series which may
be authenticated and delivered under this
Indenture (except for Securities authenticated
and delivered upon registration of transfer of,
or in exchange for, or in lieu of, other
Securities of the series pursuant to Section
3.4, 3.5, 3.6, 9.6 or 11.7 and except for any
Securities which, pursuant to Section 3.3, are
deemed never to have been authenticated and
delivered hereunder);
(3) whether Securities of the series are
to be issuable as Registered Securities, Bearer
Securities or both, whether any Securities of
the series are to be issuable initially in
temporary global form and whether any Securities
of the series are to be issuable in permanent
global form with or without coupons and, if so,
whether beneficial owners of interests in any
such permanent global Security may exchange such
interests for Securities of such series and of
like tenor of any authorized form and
denomination and the circumstances under which
any such exchanges may occur, if other than in
the manner provided in Section 3.5;
(4) the Person to whom any interest on any
Registered Security of the series shall be
payable, if other than the Person in whose name
that Security (or one or more Predecessor
Securities) is registered at the close of
business on the Regular Record Date for such
interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon
presentation and surrender of the coupons
appertaining thereto as they severally mature,
and the extent to which, or the manner in which,
any interest payable on a temporary global
Security on an Interest Payment Date will be
paid if other than in the manner provided in
Section 3.4;
(5) the date or dates on which the
principal of the Securities of the series is
payable;
(6) the rate or rates at which the
Securities of the series shall bear interest, if
any, or the formula pursuant to which such rate
or rates shall be determined, the date or dates
from which any such interest shall accrue, the
Interest Payment Dates on which any such
interest shall be payable, the Regular Record
Date for any interest payable on any Registered
Securities on any Interest Payment Date;
(7) the place or places where, subject to
the provisions of Sections 11.4 and 10.2, the
principal of and any premium and interest on
Securities of the series shall be payable, any
Registered Securities of the series, may be
surrendered for registration of transfer,
Securities of the series may be surrendered for
exchange, notices and demands to or upon the
Company in respect of the Securities of the
series and this Indenture may be served and
where notices to Holders of Bearer Securities
pursuant to Section 1.6 will be published;
(8) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Company;
(9) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Holders pursuant to Article XIV,
or such terms and conditions as shall be set
forth in an Officers' Certificate or
supplemental indenture;
(10) the obligation, if any, of the
Company to redeem or purchase Securities of the
series, or 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 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, 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).
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
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 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 owner's interest in such permanent global
Security. Except as permitted by Section 3.6, the Trustee
shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured
have been detached and cancelled.
If the forms or terms of the Securities of the series
and any related coupons have been established in or
pursuant to one or more Board Resolutions as permitted by
Sections 2.1 and 3.1, in authenticating such Securities,
and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee
shall be entitled to receive, and (subject to Section 6.1)
shall be fully protected in relying upon, an Opinion of
Counsel stating:
(a) if the forms of such Securities and any coupons
have been established by or pursuant to Board Resolution
as permitted by Section 2.1, that such forms have been
established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities and any coupons
have been established by or pursuant to Board Resolution
as permitted by Section 3.1, that such terms have been
established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
If such forms or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue or such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of
the two preceding paragraphs, if all Securities of a
series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or
the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraphs at or prior
to the time of authentication of each Security of such
series if such documents are delivered at or prior to the
authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of
its authentication; and each Bearer Security shall be
dated as of the date of original issuance of the first
Security of such series to be issued.
No Security or coupon shall be entitled to any
benefit under this Indenture or be valid or obligatory for
any purpose unless there appears on such Security, or the
Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for
herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as
provided in Section 3.9 together with a written statement
(which need not comply with Section 1.2 and need not be
accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company,
for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of
this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one
or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities or
coupons may determine, as evidenced by their execution of
such Securities or coupons. In the case of any series
issuable as Bearer Securities, such temporary Securities
may be in global form. A temporary Bearer Security shall
be delivered only in compliance with the conditions set
forth in Section 3.3.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with the
provisions of the following paragraphs), if temporary
Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or
agency of the Company maintained pursuant to Section 10.2
in a Place of Payment for such series for the purpose of
exchanges of Securities of such series, without charge to
the Holder. Upon surrender for cancellation of any one or
more temporary Securities of any series (accompanied by
any unmatured coupons appertaining thereto) the Company
shall execute and the Trustee 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 Depositary"), for the benefit of Euro-clear and
CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the
terms of, any such temporary global Security (the
"Exchange Date"), the Company shall deliver to the Trustee
definitive Securities of that series, in aggregate
principal amount equal to the principal amount of such
temporary global Security, executed by the Company. On or
after the Exchange Date such temporary global Security
shall be surrendered by the Common Depositary to the
Trustee, as the Company's 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 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 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.
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 the case may be, in respect
of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of
this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 3.1, any permanent
global Security shall be exchangeable only as provided in
this paragraph. If the beneficial owners of interests in
a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor
and principal amount of another authorized form and
denomination, as specified as contemplated by Section 3.1,
then without unnecessary delay but in any event not later
than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in aggregate
principal amount equal to the principal amount of such
permanent global Security, executed by the Company. On or
after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other
depositary or Common Depositary as shall be specified in
the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive
Securities of such series without charge and the Trustee
shall authenticate and deliver, in exchange for each
portion of such permanent global Security, a like
aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor
as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 3.1,
shall be in the form of Bearer Securities or Registered
Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided,
however, that no Bearer Security delivered in exchange for
a portion of a permanent global Security shall be mailed
or otherwise delivered to any location in the United
States. If a Registered Security is issued in exchange for
any portion of a permanent global Security after the close
of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the
relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or
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 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
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 a Book-Entry Security and shall
bear the legend specified in Section 2.4 except for any
Security authenticated and delivered in exchange for, or
upon registration of transfer of, Book-Entry Security
pursuant to the preceding sentence.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities and Coupons.
If any mutilated Security or a Security with a
mutilated coupon appertaining thereto is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered
Security and such mutilated Security or a Security with a
mutilated coupon, if any, shall be cancelled by the
Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and
(ii) such security or indemnity as may be required by
them, then, in the absence of notice to the Company or the
Trustee that such Security or coupon has been acquired by
a bona fide purchaser, the Company shall, subject to the
following paragraph, execute, and the Trustee shall
authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with
all appurtenant coupons not destroyed, lost or stolen), a
new Security of the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen
Security or coupon has become or is about to become due
and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or coupon;
provided, however, that principal of and any premium and
interest on Bearer Securities shall, except as otherwise
provided in Section 10.2, be payable only at an office or
agency located outside the United States.
Upon the issuance of any new Security under this
Section, the Company may require payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and any
coupons appertaining thereto, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone,
and any such new Security and coupons, if any, 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 the proposed payment, and at the
same time the Company shall deposit with the
Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed
payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause
provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such
Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the
date of the proposed payment and not less than
10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee
shall promptly notify the Company of such
Special Record Date and, in the name and at the
expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series
at the address of such Holder as it appears in
the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Registered
Securities of such series (or their respective
Predecessor Securities) are registered at the
close of business on such Special Record Date
and shall no longer be payable pursuant to the
following Clause (2); and
(2) The Company may make payment of any
Defaulted Interest on the Registered Securities
of any series in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which such Securities may
be listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by
the Trustee.
Subject to the foregoing provisions of this Section
and Section 3.5, each Security delivered under this
Indenture upon registration of, transfer of or in exchange
for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person
in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of
receiving payment of principal of (and premium, if any)
and (subject to Sections 3.5 and 3.7) any interest on such
Security and for all other purposes whatsoever, whether or
not such Security shall be overdue, and neither the
Company, the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by 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 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.
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
provisions of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be
of further effect (except as to any surviving rights of
registration of transfer or exchange of Securities herein
expressly provided for, and any right to receive
additional amounts, as provided in Section 10.4), and the
Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either
(A) all Securities theretofore
authenticated and delivered and all coupons, if
any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities
surrendered for exchange for Registered
Securities and maturing after such exchange,
whose surrender is not required or has been
waived as provided in Section 3.5, (ii)
Securities and coupons which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6,
(iii) coupons appertaining to Securities called
for redemption and maturing after the relevant
Redemption Date, whose surrender has been waived
as provided in Section 11.6, and (iv) Securities
and coupons for whose payment money has
theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3)
have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case
of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the Trustee
for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in
the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in
trust for the purpose, an amount sufficient to
pay and discharge the entire indebtedness on
such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for
principal (and premium, if any) and any interest
to the date of such deposit (in the case of
Securities which have become due and payable) or
to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions
precedent herein provided for relating to the
satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the
Trustee under Section 6.7, the obligations of the Trustee
to any Authenticating Agent under Section 6.14 and, if
money shall have been deposited with the Trustee pursuant
to clause (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 determine, to the Persons entitled
thereto, of the principal (and premium, if any) and any
interest for whose payment such money has been deposited
with the Trustee.
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series.
If this Section 4.3 is specified, as contemplated by
Section 3.1, to be applicable to Securities of any series,
then notwithstanding Section 4.1: (i) the Company shall be
deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of any such series; (ii)
the provisions of this Indenture as it relates to such
Outstanding Securities shall no longer be in effect
(except as to the rights of Holders of Securities to
receive, from the trust fund described in subparagraph (1)
below, payment of (x) the principal of (and premium, if
any) and any installment of principal of (and premium, if
any) or interest on such Securities on the Stated Maturity
of such principal (and premium, if any) or installment of
principal (and premium, if any) or interest or (y) any
mandatory sinking fund payments or analogous payments
applicable to the Securities of that series on that day on
which such payments are due and payable in accordance with
the terms of the Indenture and of such Securities, the
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 principal of (and
premium, if any) and each installment of
principal (and premium, if any) and interest on
the Outstanding Securities of that series on the
Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments
applicable to Securities of such series on the
day on which such payments are due and payable
in accordance with the terms of this Indenture
and of such Securities; or
(B) the Company has properly fulfilled
such other means of satisfaction and discharge
as is specified, as contemplated by Section 3.1,
to be applicable to the Securities of such
series;
(2) the Company has paid or caused to be
paid all other sums payable with respect to the
Outstanding Securities of such Series;
(3) such deposit will not result in a
breach or violation of, or constitute a default
under, this Indenture or any other agreement or
instrument to which the Company is a party or by
which it is bound;
(4) no Event of Default or event which
with the giving of notice or lapse of time, or
both, would become an Event of Default with
respect to the Securities of that series shall
have occurred and be continuing on the date of
such deposit and no Event of Default under
Section 5.1(6) or Section 5.1(7) or event which
with the giving of notice or lapse of time, or
both, would become an Event of Default under
Section 5.1(6) or Section 5.1(7) shall have
occurred and be continuing on the 91st day after
such date;
(5) the Company has delivered to the
Trustee an Opinion of Counsel to the effect that
(a) the Company has received from, or there has
been published by, the Internal Revenue Service
a ruling, or (b) since the date of this
Indenture there has been a change in applicable
federal income tax law, in either case to the
effect that, and based thereon such Opinion of
Counsel shall confirm that, the Holders of
Securities of such series will not recognize
income, gain or loss for federal income tax
purposes as a result of such deposit, defeasance
and discharge and will be subject to federal
income tax on the same amount and in the same
manner and at the same times as would have been
the case if such deposit, defeasance and
discharge had not occurred;
(6) if the Securities of that series are
then listed on any domestic or foreign
securities exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel
to the effect that such deposit, defeasance and
discharge will not cause such Securities to be
delisted; and
(7) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions
precedent herein provided for relating to the
satisfaction and discharge of the entire
indebtedness on all Outstanding Securities of
any such series have been complied with and an
Opinion of Counsel to the effect that either (i)
as a result of such deposit and the related
exercise of the 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 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 payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the
principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking
fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or breach,
of any covenant or warranty of the Company in
this Indenture (other than a covenant or
warranty a default in whose performance or whose
breach is elsewhere in this Section specifically
dealt with or which has expressly been included
in this Indenture solely for the benefit of
series of Securities other than that series),
and continuance of such default or breach for a
period of 60 days after there has been given, by
registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by
the Holders of at least 25% in principal amount
of the Outstanding Securities of that series, a
written notice specifying such default or breach
and requiring it to be remedied and stating that
such notice is a "Notice of Default, hereunder;
or
(5) the entry by a court having
jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in an
involuntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Company a
bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization,
arrangement, adjustment or composition of or in
respect of the Company under any applicable
Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the
Company or of any substantial part of its
property, or ordering the winding up or
liquidation of its affairs, and the continuance
of any such decree or order for relief or any
such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the commencement by the Company of a
voluntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order
for relief in respect of the Company in an
involuntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent
seeking reorganization or relief under any
applicable Federal or State law, or the consent
by it to the filing of such petition or to the
appointment of or taking possession by a
custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the
Company or of any substantial part of its
property, or the making by it of an assignment
for the benefit of creditors, or the admission
by it in writing of its inability to pay its
debts generally as they become due, or the
taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided
with respect to Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may
be specified in the terms thereof) of all of the
Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount)
shall become immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and
before adjudgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by
written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if:
(1) the Company has paid or deposited with
the Trustee a sum sufficient to pay,
(A) all overdue interest on all Securities
of that series,
(B) the principal of (and premium, if any,
on) any Securities of that series which have
become due otherwise than by such declaration of
acceleration and any interest thereon at the
rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the non-
payment of the principal of Securities of that
series which have become due solely by such
declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for
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
interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any
Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities of that
series and any coupons appertaining thereto, the whole
amount then due and payable on such Securities of that
series and coupons for principal and any premium and
interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue
principal and on the premium, if any, and overdue
interest, at the rate or rates prescribed therefor in such
Securities of that series and, in addition thereto, such
further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final
decree and may enforce the same against the Company or any
other obligor upon such Securities and collect the moneys
adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other
obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such series
and any coupons appertaining thereto by such appropriate
judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall 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
(including any claim for the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel)
and of the Holders of Securities and coupons
allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or
other property payable or deliverable on any
such claims and to distribute the same,
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to
the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to the Trustee
any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee
under Section 6.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt
on behalf of any Holder of a Security or coupon any plan
of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any
Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder of a Security or coupon
in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been
recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due
the Trustee under Section 6.7; and
SECOND: To the payment of the amounts then
due and unpaid for principal of and any premium
and interest on the Securities and coupons in
respect of which or for the benefit of which
such money has been collected, ratably, without
preference or priority of any kind, according to
the amounts due and payable on such Securities
and coupons for principal and any premium and
interest, respectively.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series or any
related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless;
(1) such Holder has previously given
written notice to the Trustee of a continuing
Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities
of that series shall have made written request
to the Trustee to institute proceedings in
respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to
the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and
ratable benefit of all of such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have
the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject
to Section 3.7) interest on such Security or payment of
such coupon on the Stated Maturity or Maturities expressed
in such Security or coupon (or, in the case of redemption,
on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not
be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon
has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the
Holders of Securities and coupons shall be restored
severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive or any other right or
remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion
or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security or coupon to exercise any right or remedy
accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or
to the Holders of Securities or coupons may be exercised
from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities
or coupons, as the case may be.
SECTION 5.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series, provided
that,
(1) such direction shall not be in
conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series
and any coupons appertaining thereto waive any past
default hereunder with respect to the Securities of such
series and its consequences, except a default,
(1) in the payment of the principal of (or
premium, if any) or any interest on any Security
of such series, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be
modified or amended without the consent of the
Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall be
deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security or coupon by his acceptance thereof shall
be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party litigant
in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess
reasonable costs, including reasonable 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 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 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.
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
hereunder (which compensation shall not be
limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided
herein, to reimburse the Trustee or any
predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance
with any provision of this Indenture (including
the compensation and the expenses and
disbursements of its agents and counsel, except
any such expense, disbursement or advance as may
be attributable to its negligence or bad faith;
and
(3) to indemnify the Trustee and any
predecessor Trustee for, and to hold it harmless
against, any loss, liability or expense incurred
without negligence or bad faith on its part,
arising out of or in connection with the
acceptance or administration of the trust or
trusts hereunder, including the costs and
expenses of defending itself against any claim
or liability in connection with the exercise or
performance of any of its powers or duties
hereunder.
SECTION 6.6 Resignation and Removal; 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
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its
property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 5.14 any Holder of
a Security who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor
Trustee or Trustees.
(d) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in
the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those
series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time
there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with
the applicable requirements of Section 6.11. If, within
one year after such resignation, removal or incapability,
or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal
amount of Outstanding Securities of such series delivered
to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable
requirements of Section 6.11, become the successor Trustee
with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by
the Company or the Holders of Securities of that series
and accepted appointment in the manner required by Section
6.11, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six
months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the
Securities of such series.
(e) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with
respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 6.7 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become
vested with all the rights, powers, 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
hereunder by more than one Trustee, it being understood
that nothing herein or in such supplemental indenture
shall constitute such Trustees as co-trustees of the same
trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent
provided therein and each such successor Trustee, without
any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any
successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as
the case may be.
(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
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 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
published. If at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of such Authenticating Agent, shall continue to
be an Authenticating Agent provided such corporation shall
be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the
part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating
Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable
to the Company and shall promptly give notice of such
appointment to all Holders of Securities pursuant to
Section 1.6. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its
predecessor hereunder with like effect as if originally
named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to
the provisions of Section 6.7.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
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 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 information filed with it pursuant to
Section 7.3(c)(2).
(b) If three or more Holders of Securities (herein
referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that
each such applicant has owned a Security for a period of
at least six months preceding the date of such
application, and such application states that the
applicants desire to communicate with other Holders of
Securities with respect to their rights under this
Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the Trustee
in accordance with Section 7.2(a), or
(ii) inform such applicants as to the
approximate number of Holders of Securities
whose names and addresses appear in the
information 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
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).
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 consolidate or merge with or into the
Company or to sell, lease, transfer or otherwise dispose
of its assets substantially as an entirety to the Company,
unless:
(1) in case the Company shall consolidate
or merge with or into another Person or sell,
lease, transfer or otherwise dispose of its
assets substantially as an entirety to any
Person, the Person formed by such consolidation
or into which the Company is merged or the
Person which acquires by sale, lease, transfer
or otherwise, the assets of the Company
substantially as an entirety shall be a
corporation, partnership or trust, shall be
organized and validly existing under the laws of
the United States of America, any State thereof
or the District of Columbia and shall expressly
assume, by an indenture 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 Securities and the performance
of every covenant of this Indenture on the part
of the Company to be performed or observed;
(2) immediately after giving effect to
such transaction and treating any indebtedness
which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as
having been incurred by the Company or such
Subsidiary at the time of such transaction, no
Event of Default, and no event which, after
notice or lapse of time or both, would become an
Event of Default, shall have happened and be
continuing;
(3) if as a result of any such
consolidation or merger or such sale, lease,
transfer or other disposition of the assets of
the Company would become subject to a mortgage,
pledge, lien, security interest or other
encumbrance which would not be permitted by this
Indenture, the Company or such successor Person,
as the case may be shall take such steps as
shall be necessary effectively to secure the
Securities equally and ratably with (or prior
to) all indebtedness secured thereby; and
(4) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such
consolidation, merger, conveyance, sale, lease,
transfer or other disposition and, if a
supplemental indenture is required in connection
with such transaction, such supplemental
indenture comply with this Article and that all
conditions precedent herein provided for
relating to such transaction have been complied
with.
SECTION 8.2 Successor Substituted.
Upon any consolidation or merger of the Company with
or into any other Person or any sale, lease, transfer or
other disposition of the assets of the Company
substantially as an entirety in accordance with Section
8.1, the successor Person formed by such consolidation or
into which the Company is merged or to which sale, lease,
transfer or other disposition is made shall assume the
obligations of the Company on the Securities and under
this Indenture with the same effect as if such successor
Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor
Person shall be relieved of all obligations and covenants
under this Indenture and the Securities and coupons.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of Securities or
coupons, the Company is then authorized by a Board
Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company
for the benefit of the Holders of all or any
series of Securities (and if such covenants are
to be for the benefit of less than all series of
Securities, stating that such covenants are
expressly being included solely for the benefit
of such series) or to surrender any right or
power herein conferred upon the Company; or
(3) to add any additional Events of
Default; or
(4) to add to or change any of the
provisions of this Indenture to provide that
Bearer Securities may be 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 facilitate the
issuance of Securities in uncertificated form,
provided that any such action shall not
adversely affect the interests of the Holders of
Securities of any series or any related coupons
in any material respect; or
(5) to change or eliminate any of the
provisions of this Indenture, provided that any
such change or elimination shall become
effective only when there is no Security
Outstanding of any series created prior to the
execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities pursuant to
the requirements of Section 10.7 or otherwise;
or
(7) to establish the form or terms of
Securities of any series and any related coupons
as permitted by Sections 2.1 and 3.1; or
(8) to evidence and provide for the
acceptance of appointment thereunder by a
successor Trustee with respect to the Securities
of one or more series and to add to or change
any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the
administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements
of Section 6.11(b); or
(9) to make provision with respect to the
conversion rights of Holders pursuant to the
requirements of Article XV, including providing
for the conversion of the Securities into any
Security or property (other than the Common
Stock of the Company); or
(10) to cure any ambiguity, to correct or
supplement any provision herein which may be
inconsistent with any other provision herein,
or to make any other provisions with respect to
matters or questions arising under this
Indenture, provided that such action shall not
adversely affect the interests of the Holders of
Securities of any series or any related coupons
in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders of Securities of such
series and any related coupons under this Indenture;
provided, however, that no such supplemental indenture
shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the
principal of, or any installment of principal of
or interest on, any Security, or reduce the
principal amount thereof or the rate of interest
thereon or any premium payable upon the
redemption thereof, or change any obligation of
the Company to pay additional amounts pursuant
to Section 10.4 (except as contemplated by
Section 8.1(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 in this
Indenture, or reduce the requirements of Section
13.4 for quorum or voting, or
(3) change any obligation of the Company
to maintain an office or agency in the places
and for the purposes specified in Section 10.2,
or
(4) modify any of the provisions of this
Section, Section 5.13 or Section 10.10, except
to increase any such percentage or to provide
that certain other provisions of this Indenture
cannot be modified or waived without the consent
of the Holder of each Outstanding Security
affected thereby; provided, however, that this
clause shall not be deemed to require the
consent of any Holder of a Security or coupon
with respect to changes in the references to
"the Trustee" and concomitant changes in this
Section and Section 10.10 or the deletion of
this proviso, in accordance with the
requirements of Sections 6.11(b) and 9.1(8), or
(5) make any change that adversely affects
the right to convert any Security as provided in
Article XV or pursuant to Section 3.1 (except as
permitted by Section 9.1) or decrease the
conversion rate or increase the conversion price
of any such Security.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which
has expressly been included solely for the benefit of one
or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series
with respect to such covenant or other provision, shall be
deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of
Securities under this Section to approve the particular
form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3 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.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of
each series of Securities that it will duly and punctually
pay the principal of and any premium and interest on the
Securities of that series in accordance with the terms of
the Securities, any coupons appertaining thereto and this
Indenture. Unless otherwise specified as contemplated by
Section 3.1 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity
shall be payable only upon presentation and surrender
outside the United States of the several coupons for such
interest installments as are evidenced thereby as they
severally mature.
SECTION 10.2 Maintenance of Office or Agency.
If Securities of a series are issuable only as
Registered Securities, the Company will maintain in each
Place of Payment for such series an office or agency where
Securities of that series may be presented or surrendered
for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in
respect of the Securities of that series and this
Indenture may be served. If Securities of a series are
issuable as Bearer Securities, the Company will maintain
(A) in The City of New York, an office or agency where any
Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities
of that series may be surrendered for registration of
transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or
upon the Company in respect of the Securities of that
series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise),
(B) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located
outside the United States, an office or agency where
Securities of that series and related coupons may be
presented and surrendered for payment (including payment
of any additional amounts payable on Securities of 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 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 the
Holders of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held in
Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of and
any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the
principal and any premium or interest so becoming due
until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities it will, prior to each
due date of the principal of and any premium or interest
on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any
premium or interest so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such
principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and
deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the
payment of the principal of and any premium or
interest on Securities of that series in trust
for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default
by the Company (or any other obligor upon the
Securities of that series) in the making of any
payment of principal of and any premium or
interest on the Securities of that series; and
(3) at any time during the continuance of
any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be
held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the
payment of the principal of and any premium or interest on
any Security of any series and remaining unclaimed for two
years after such principal and any premium or interest has
become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such
Security or any coupon appertaining thereto shall
thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust
money and all liability of the Company as trustee thereof
shall thereupon cease; provided, however, that the Trustee
or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each
Place of Payment, notice that such money remains unclaimed
and that after a date specified therein, which shall not
be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 10.4 Additional Amounts.
If the Securities of a series provide for the payment
of additional amounts, the Company will pay to the Holder
of any Security of such series or any coupon appertaining
thereto additional amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on,
or in respect of any Security of any series or payment of
any related coupon or the net proceeds received on the
sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment
of additional amounts provided for in this Section to the
extent that, in such context additional amounts are, were
or would be payable in respect thereof pursuant to the
provisions of this Section and express mention of the
payment of additional amounts (if applicable) in any
provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment
of additional amounts, at least 10 days prior to the first
Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not
bear interest prior to Maturity, the first day on which a
payment of principal and any premium is made), and at
least 10 days prior to each date of payment of principal
and any premium or interest if there has been any change
with respect to the matters set forth in the below-
mentioned Officers' Certificate, the Company 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 payment of
principal of and any premium or interest on the Securities
of that series shall be made to Holders of Securities of
that series or any related coupons who are United States
Aliens without withholding for or on account of any tax
assessment or other governmental charge described in the
Securities of that series. If any such withholding shall
be required, then such Officers' Certificate shall specify
by country the amount, if any, required to be withheld on
such payments to such Holders of Securities or coupons and
the Company will pay to the Trustee or such Paying Agent
the additional amounts required by this Section. The
Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss
liability or expense reasonably incurred without
negligence or willful misconduct on their part arising out
of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished
pursuant to this Section.
SECTION 10.5 Existence.
Subject to Article VIII, the Company will do or cause
to be done all things necessary to preserve and keep in
full force and effect its existence, rights (charter and
statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right
or franchise if the Board of Directors shall determine
that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.6 Purchase of Securities by Company or
Subsidiary.
If and so long as the Securities of a series are
listed on The Stock Exchange of the United Kingdom and the
Republic of Ireland and such stock exchange shall so
require, the Company will not, and will not permit any of
its Subsidiaries to, purchase any Securities of that
series by private treaty at a price (exclusive of expenses
and accrued interest) which exceeds 120% of the mean of
the nominal quotations of the Securities of that series as
shown in The Stock Exchange Daily Official List for the
last trading day preceding the date of purchase.
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
"mortgages") upon any Timberlands or any Principal
Manufacturing Facility now owned or hereafter acquired,
without in any such case effectively providing,
concurrently with the issuance, assumption or guarantee of
such Debt, that the Securities (together with, if the
Company shall so determine, any other indebtedness of or
guaranteed by the Company or such Subsidiary ranking
equally with the Securities then outstanding and existing
or thereafter created) shall be secured equally and
ratably with (or prior to) such Debt; provided, however,
that the foregoing restriction shall not apply to:
(1) mortgages on any property acquired,
constructed or improved by the Company or any
Subsidiary after the date of this Indenture
which are created or assumed contemporaneously
with, or within one hundred and eighty days
after, such acquisition (or in the case of
property constructed or improved, after the
completion and commencement of commercial
operation of such property, whichever is later)
to secure or provide for the payment of any part
of the purchase price of such property or the
cost of such construction or improvement, or
mortgages on any property existing at the time
of acquisition thereof; provided that in the
case of any such construction or improvement the
mortgage shall not apply to any property
theretofore owned by the Company or any
Subsidiary, other than any theretofore
unimproved real property on which the property
so constructed, or the improvement, is located;
(2) mortgages on any property acquired
from a corporation which is merged with or into
the Company or a Subsidiary or mortgages
outstanding at the time any corporation becomes
a Subsidiary;
(3) mortgages in favor of the Company or
any Subsidiary; and
(4) any extension, renewal or replacement
(or successive extensions, renewals or
replacements) in whole or in part, of any
mortgage referred to in the foregoing clauses
(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 improvements
on such property).
(b) Notwithstanding the provisions of subsection (a)
of this Section 10.7, the Company or any Subsidiary may
issue, assume or guarantee secured Debt, which would
otherwise be subject to the foregoing restrictions, in an
aggregate amount which together with all other such Debt
and all Attributable Debt in respect of Sale and Lease-
Back Transactions (as defined in Section 10.8) of the
Company and its Subsidiaries existing at such time (other
than Sale and 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 subsection (c) below), as
shown on the audited consolidated balance sheet contained
in the latest annual report to shareholders of the
Company.
(c) For the purpose of this Section 10.7, the term
"net tangible assets of the Company and its consolidated
Subsidiaries" shall mean the aggregate amount of assets
(less applicable reserves and other properly deductible
items) after deducting therefrom (a) all current
liabilities, excluding current maturities of long-term
debt, commercial paper and other short-term indebtedness,
and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense (to the extent
included in such aggregate amount of assets) and other
like intangibles, all as set forth on the most recent
consolidated balance sheet of the Company and its
consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
(d) For the purposes of this Article X, the
following types of transactions, among others, shall not
be deemed to create Debt secured by a mortgage:
(1) the sale, mortgage or other transfer
of timber in connection with an arrangement
under which the Company or a Subsidiary is
obligated to cut such timber or a portion
thereof in order to provide the transferee with
a specified amount of money however determined;
and
(2) the mortgage of any property of the
Company or any Subsidiary in favor of the United
States of America or any State thereof, or any
department, agency or instrumentality or
political subdivision of the United States of
America or any State thereof, to secure partial,
progress, advance or other payments pursuant to
any contract or statute or to secure any
indebtedness incurred for the purpose of
refinancing all or any part of the purchase
price or the cost of constructing or improving
the property subject to such mortgages.
SECTION 10.8 Limitation on Sale and Lease-Back
Transactions.
The Company will not, nor will it permit any
Subsidiary to, enter into any arrangement with any person
providing for the leasing to the Company or a Subsidiary
of any Timberlands or any Principal Manufacturing Facility
(except for temporary leases for a term of not more than
three years), which property has been owned and, in the
case of any such Facility, has been placed in commercial
operation more than one hundred and eighty days by the
Company or such Subsidiary and has been or is to be sold
or transferred by the Company or such Subsidiary to such
person (herein referred to as "Sale and Lease-Back
Transactions"), unless either (a) the Company or such
Subsidiary would be entitled to incur Debt secured by a
mortgage on the property to be leased in an amount equal
to the Attributable Debt with respect to such Sale and
Lease-Back Transactions without equally and ratably
securing the Securities pursuant to Section 10.7 or (b)
the Company shall, and in any such case the Company
covenants that it will, apply an amount equal to the fair
value (as determined by the Board of Directors) of the
property so leased to the retirement, within one hundred
and eighty days of the effective date of any such Sale and
Lease-Back Transactions, of Securities or of Funded Debt
of the Company which ranks on a parity with the
Securities.
SECTION 10.9 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company
ending after the date hereof, an Officers' Certificate
stating whether or not to the best knowledge of the
signers thereof the Company is in default in the
performance and observance of any of the terms, provisions
and conditions of this Indenture, and if the Company shall
be in default, specifying all such defaults and the nature
and status thereof of which they may have knowledge.
SECTION 10.10 Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision or condition set forth in
Sections 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
Section 10.8 and any such omission with respect to Section
10.7 or Section 10.8 shall not be an Event of Default, in
each case with respect to the Securities of that series,
provided that the following conditions have been
satisfied:
(1) with reference to this Section 10.11,
the Company has deposited or caused to be
deposited with the Trustee (or another trustee
satisfying the requirements of Section 6.9)
irrevocably (but subject to the provisions of
Section 4.2 and the last paragraph of Section
10.3) as trust funds in trust, specifically
pledged as security for and dedicated solely to
the benefit of the Holders of the Securities of
that series, (A) lawful money of the United
States in an amount, or (B) U.S. Government
Obligations which through the payment of
interest and principal in respect thereof in
accordance with their terms will provide not
later than the opening of business on the due
dates of any payment referred to in clause (i)
or (ii) of this subparagraph (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 installment of
principal (and premium, if any) and interest on
the Outstanding Securities of that series on the
Stated Maturity of such principal or installment
of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments
applicable to Securities of such series on the
day on which such payments are due and payable
in accordance with the terms of this Indenture
and of such Securities;
(2) such deposit shall not cause the
Trustee with respect to the Securities of that
series to have a conflicting interest as defined
in Section 6.8 and for purposes of the Trust
Indenture Act with respect to the Securities of
any Series;
(3) such deposit will not result in a
breach or violation of, or constitute a default
under, this Indenture or any other agreement or
instrument to which the Company is a party or by
which it is bound;
(4) no Event of Default or event which
with the giving of notice or lapse of time, or
both, 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 conditions
precedent herein provided for relating to the
defeasance contemplated in this Section have
been complied with and an Opinion of Counsel to
the effect that either (i) as a result of such
deposit and the related exercise of the
Company's option under this Section 10.11
registration is not required under the
Investment Company Act of 1940, as amended, by
the Company, the trust funds representing such
deposit or the Trustee or (ii) all necessary
registrations under said Act have been effected.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance
with their terms and (except as otherwise specified as
contemplated by Section 3.1 for Securities of any series)
in accordance with this Article.
SECTION 11.2 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by an 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 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.
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
Redemption 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
applicable, that interest thereon will cease to
accrue on and after said date;
(5) the place or places where such
Securities, together in the case of Bearer
Securities with all coupons appertaining
thereto, if any maturing after the Redemption
Date, are to be surrendered for payment of the
Redemption Price;
(6) 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 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 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 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 unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable to
any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by
Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 12.2. Each sinking
fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities of
a series (other than any previously called for
redemption), together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining
thereto, and (2) may apply as a credit Securities of a
series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such
Securities, as provided for by the terms of such series;
provided that such Securities have not been previously so
credited. Such Securities shall be received and credited
for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through
operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
Any resolution passed or decision taken at any
meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related
coupons, whether or not present or represented at the
meeting.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Securities, the Company
will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and
will also deliver to the Trustee any Securities to be so
delivered. Not less than 45 days before each such sinking
fund payment date the Trustee shall select the Securities
to be redeemed upon such sinking fund payment date in the
manner specified in Section 11.3 and cause notice of the
redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section
11.4. Such notice having been duly given, the redemption
of such Securities shall be made upon the terms and in the
manner stated in Sections 11.6 and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer
Securities, a meeting of Holders of Securities of such
series may be called at any time and from time to time
pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture
to be made, given or taken by Holders of Securities of
such series.
SECTION 13.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose
specified in Section 13.1, to be held at such time and at
such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall determine. Notice
of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section
1.6, not less than 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 specified,
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 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 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 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 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.
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.
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, accompanied by written notice to the Company
that the Holder elects to convert such Security or a
specified portion thereof. Such notice shall also state,
if different from the name and address of such Holder, the
name or names (with address) in which the certificate or
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 satisfactory to the
Company and the Trustee duly executed by the registered
Holder or its attorney duly authorized in writing; and
Securities so surrendered for conversion during the period
from the close of business on any Regular Record Date to
the opening of business on the next 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 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 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 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 conversion agent other than the Trustee.
SECTION 15.5 Notice of Certain Corporate Actions.
In case:
(a) the Company shall declare a
dividend (or any other distribution) on its
Common Stock payable 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
(d) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Company;
then the Company shall cause to be filed with the Trustee,
and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Securities Register,
at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record
date hereinafter specified, a notice stating (i) the date
on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or,
if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such
dividend, distribution, rights, options or warrants are to
be determined, or (ii) the date on which such
reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up is expected
to become effective, and the date as of which it is
expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange,
sale, dissolution, liquidation or winding up. If at any
time the Trustee shall not be the conversion agent, a copy
of such notice shall also forthwith be filed by the
Company with the Trustee.
SECTION 15.6 Reservation of Shares of Common Stock.
The Company shall at all times 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.
The Company covenants that all shares of its
Common Stock which may be issued upon conversion of
Securities will upon issue in accordance with the terms
hereof be duly and validly issued and fully paid and
nonassessable.
SECTION 15.9 Effect of Consolidation or Merger on
Conversion Privilege.
In case of any consolidation of the Company
with, or merger of the Company into or with any other
Person, or in case of any sale of all or substantially all
of the assets of the Company, the Company or the Person
formed by such consolidation or the Person into which the
Company shall have been merged or the Person which shall
have acquired such assets, as the case may be, shall
execute and deliver to the Trustee a supplemental
indenture providing that the Holder of each Security then
outstanding of any series that is convertible into Common
Stock of the Company shall have the right, which right
shall be the exclusive conversion right thereafter
available to said Holder (until the expiration of the
conversion right of such Security), to convert such
Security into the kind and amount of shares of stock or
other securities or property (including cash) receivable
upon such consolidation, merger or sale by a holder of the
number of shares of Common Stock of the Company into which
such Security might have been converted immediately prior
to such consolidation, merger or sale, subject to
compliance with the other provisions of this Indenture,
such Security and such supplemental indenture. Such
supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the
adjustments provided for in such Security. The above
provisions of this Section shall similarly apply to
successive consolidations, mergers or sales. It is
expressly agreed and understood that anything in this
Indenture to the contrary notwithstanding, if, pursuant to
such merger, consolidation or sale, holders of outstanding
shares of Common Stock of the Company do not receive
shares of common stock of the surviving corporation but
receive other securities, cash or other property or any
combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into
common stock of the surviving corporation or the
corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to
receive the other securities, cash or other property
receivable by a holder of the number of shares of Common
Stock of the Company into which the Securities held by
such holder might have been converted immediately prior to
such consolidation, merger or sale, all as more fully
provided in the first sentence of this Section 15.9.
Anything in this Section 15.9 to the contrary
notwithstanding, the provisions of this Section 15.9 shall
not apply to a merger or 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 corporation and (ii) the
outstanding shares of Common Stock of the Company are not
changed or converted into any other securities or property
(including cash) or changed in number or character or
reclassified pursuant to the terms of such merger or
consolidation.
As evidence of the kind and amount of shares of
stock or other securities or property (including cash)
into which Securities may properly be convertible after
any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices
applicable with respect thereto, the Trustee shall be
furnished with and may accept the certificate or opinion
of an independent certified public accountant with respect
thereto; and, in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively rely thereon,
and shall not be responsible or accountable to any Holder
of Securities for any provision in conformity therewith or
approved by such independent certified accountant which
may be contained in said supplemental indenture.
SECTION 15.10 Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent
shall at any time be under any duty or responsibility to
any Holder of Securities of any series that is convertible
into Common Stock of the Company to determine whether any
facts exist which may require any adjustment of the
conversion price, or with respect to the nature or extent
of any such adjustment when made, or with respect to the
method employed, whether herein or in any supplemental
indenture, any resolutions of the Board of Directors or
written instrument executed by one or more officers of the
Company provided to be employed in making the same.
Neither the Trustee nor any conversion agent shall be
accountable with respect to the validity or value (or the
kind or amount) of any shares of Common Stock of the
Company, or of any securities or property, which may at
any time be issued or delivered upon the conversion of any
Securities and neither the Trustee nor any conversion
agent makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue,
transfer or deliver any shares of its Common Stock or
stock certificates or other securities or property upon
the surrender of any Security for the purpose of
conversion or to comply with any of the covenants of the
Company contained in this Article Fifteen or in the
applicable supplemental indenture, resolutions of the
Board of Directors or written instrument executed by one
or more duly authorized officers of the Company.
SECTION 15.11 Repayment of Certain Funds Upon Conversion.
Any funds which at any time shall have been
deposited by the Company or on its behalf with the Trustee
or any other paying agent for the purpose of paying the
principal of, and premium, if any, and interest, if any,
on any of the Securities (including funds deposited for
the sinking fund referred to in 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.
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 /S/ E. WILLIAM BOEHMLER
Vice President and Treasurer
[Seal]
Attest:
/S/ SYVERT NERHEIM
Assistant Secretary
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By /S/ J. D. HEANEY
Vice President
[Seal]
Attest:
/S/ S. WILTSHIRE
Assistant Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the 1st day of April, 1994, before me personally
came William Boehmler, to me known, who, being by me duly
sworn, did depose and say that he is Vice President &
Treasurer 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.
/S/ BETSY A. BYRNES
[Seal] Notary Public, State of New York
Qualified in New York County
Certificate filed in Westchester
County
Commission Expires March 11, 1995
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
On the 27th day of April, 1994, before me personally
came J. D. Heaney, to me known, who, being by me duly
sworn, did depose and say that he is Vice President 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.
/S/ Margaret M. Price
[Seal] Notary Public, State of New York
Qualified in Kings County
Commission Expires April 22, 1995
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
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 therein upon or as a result of such
payment, will not be less than the amount provided for in
this Security to be then due and payable; provided,
however, that the foregoing obligation to pay additional
amounts will not apply to any one or more of the
following:
(a) any tax, assessment or other governmental
charge which would not have been so imposed but for
(i) the existence of any present or former
connection between such Holder (or between a
fiduciary, settlor, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present therein, or having or having had
a permanent establishment therein, or (ii) such
Holders' present or former status as a personal
holding company, a foreign personal holding company,
a controlled foreign corporation for United States
tax purposes or a corporation which accumulates
earnings to avoid 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;
(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.
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 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,
Redemption Redemption
Year Price Year Price
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 installments of interest on this Security
whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this
series are subject to redemption (1) on __________ in any
year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below,
and (2) at any time [on or after _________, 19__], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning
____________________ of the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to __% of the
principal amount. [If applicable, insert--and (3) under
the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to 100% of the
principal amount,] together in the case of any such
redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption
Date; provided, however, that installments of interest on
this Security whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holder of
this Security, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture.] [Notwithstanding the foregoing, the
Company may not, prior to ______________ redeem any
Securities of this series as contemplated by Clause [(2)]
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 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 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
* Generally this provision will only be applicable if
the Securities of the series bear interest at a
fixed rate.
interest accrued to the date fixed for redemption, or (y)
if and so long as any such certification, identification
or other information reporting requirement would be fully
satisfied by payment of a backup withholding tax or
similar charge, pay to the Holders of Bearer Securities
who are United States Aliens certain additional amounts
specified in the Bearer Securities of this series. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay to the
Holders of Bearer Securities who are United States Aliens
the additional amounts specified in the Bearer Securities
of this series and (if applicable) the last date by which
the redemption of the Securities must take place. If the
Company elects to redeem the Securities, such redemption
shall take place on such date, not later than one year
after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 75 days
before such date, unless shorter notice is acceptable to
the Trustee. Notwithstanding the foregoing, the Company
will not so redeem the Securities if the Company, based
upon an opinion of independent counsel, subsequently
determines, not less than 30 days prior to the date fixed
for redemption, that subsequent payments would not be
subject to any such requirement, in which case the
Company will notify the Trustee, which will promptly give
notice of that determination in the manner provided
below, and any earlier redemption notice will thereupon
be revoked and of no further effect. If the Company
elects as provided in clause (y) above to pay such
additional amounts to the Holders of Bearer Securities
who are United States Aliens, and as long as the Company
is obligated to pay such additional amounts to such
Holders, the Company may subsequently redeem the
Securities, at any time, as a whole but not in part, at a
Redemption Price equal to 100% of their principal amount,
together with interest accrued to the date fixed for
_redemption, but without reduction for applicable United
States withholding taxes.]
[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 respect to this Security or portion
hereof, as the case may be, so called for redemption at
the close of business on the date fixed for redemption as
provided in the Indenture unless the Company defaults in
making the payment due upon redemption), to convert the
principal amount of this Security (or any portion hereof
which is [insert minimum denomination] or an integral
multiple thereof), into fully paid and non-assessable
shares (calculated as to each conversion to the nearest
1/100th of a share) of the Common Stock of the Company,
as said shares shall be constituted at the date of
conversion, at the conversion price of $_____ principal
amount of Securities for each share of Common Stock, or
at the adjusted conversion price in effect at the date of
conversion determined as provided in the Indenture, upon
surrender of this Security, together with the conversion
notice hereon duly executed, to the Company at the
designated office or agency of the Company in _______,
accompanied (if so required by the Company) by
instruments of transfer, in form satisfactory to the
Company and to the Trustee, duly executed by the Holder
or by its duly authorized attorney in writing. Such
surrender shall, if made during any period beginning at
the close of business on a Regular Record Date and ending
at the opening of business on the Interest Payment Date
next following such Regular Record Date (unless this
Security or the portion being converted shall have been
called for redemption on a Redemption Date during such
period), also be accompanied by payment in funds
acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the
principal amount of this Security then being converted.
Subject to the aforesaid requirement of repayment and, in
the case of a conversion after the Regular Record Date
next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of
this Security (or any Predecessor Security) of record at
such Regular Record Date to receive an installment of
interest (with certain exceptions provided in the
Indenture), no adjustment is to be made of conversion for
interest accrued hereon for dividends on shares of Common
Stock issued on conversion. The Company is not required
to issue fractional shares upon any such conversion, but
shall make adjustment therefor in cash on the basis of
the current market value of such fractional interest as
provided in the Indenture. The conversion price is
subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party
or the sale of substantially all of the assets of the
Company, the Indenture shall be amended, without the
consent of any Holders of Securities, so that this
Security, if then outstanding, will be convertible
thereafter, 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 [If Securities of the series are
also issuable as Bearer Securities, insert--and any
related coupons] under the Indenture at any time by the
Company and the Trustee with the consent of the Holders
of 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series
[If Securities of the series are also issuable as Bearer
Securities, insert--and any related coupons], to waive
compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by
the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the
registration of transfer hereof or in exchange hereof or
in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As set forth in, and subject to, the provisions of
the Indenture, no Holder of any Security of this series
will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default
with respect to this series, the Holders of not less than
25% in principal amount of the Outstanding Securities of
this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall have
received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to
a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium,
if any)] or interest on this Security on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and
premium, if any)] and interest [(including additional
amounts, as described on the face hereof)] on this
Security at the times, place[s] and rate, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this
Security is 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 executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or
more new [if the Securities of the series are also
issuable as Bearer Securities, insert--Registered]
Securities of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
[If the Securities of the series are not also
issuable as Bearer Securities, insert--The Securities of
this series are issuable only in registered form, without
coupons, in denominations of $__________ and any integral
multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.]
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
[If the Securities of the Series are also issuable
as Bearer Securities, insert--The Indenture, the
Securities and any coupons appertaining thereto shall be
governed by and construed in accordance with the laws of
the State of New York.]
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby
irrevocably instructs the Company to redeem this Security
in accordance with the terms of the Indenture referred to
in this Security.
The instruction being given in exercise of the
Holder's option to require redemption of this Security to
the extent provided in such Indenture upon a Change in
Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this
Security is submitted for
redemption, please indicate:
1. Principal Amount
submitted for
redemption:
U.S.$_________________
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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED
STATES INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT ON THIS SECURITY IS ____% OF ITS PRINCIPAL
AMOUNT, THE ISSUE DATE IS ___________, 19__ [,--AND] THE
YIELD TO MATURITY IS ____% [, THE METHOD USED TO
DETERMINE THE YIELD IS ___________].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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.
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 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 discount],
after deduction or withholding for or on account of any
present or future tax, assessment or other governmental
charge imposed by the United States (as defined below) or
any political subdivision or taxing authority thereof or
therein upon or as a result of such payment [If the
Security is not to bear interest prior to Maturity,
insert--or, as a result of such sale or exchange] will
not be less than the amount provided for in this Security
to be then due and payable [If the Security is not to
bear interest prior to Maturity; insert--or, in the case
of a sale or exchange, the amount of the net proceeds
from the sale or exchange before any such tax, assessment
or other governmental charge]; provided, however, that
the foregoing obligation to pay additional amounts will
not apply to any one or more of the following:
(a) any tax, assessment or other governmental
charge which would not have been so imposed but for
(i) the existence of any present or former
connection between such Holder (or between a
fiduciary, settlor, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present therein, or having or having had
a permanent establishment therein, or (ii) such
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;
(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 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 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.]$______]. [If
Securities of the series are issuable as Bearer
Securities, insert--The Securities of this series are
issuable as Bearer Securities [, with interest coupons
attached,] in the denomination of U.S.$__________, 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 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,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ____% of
the principal amount,] [If applicable, insert--[and
(____)] under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal
to [Insert formula for determining the amount]] [If the
Security is interest-bearing, insert--, together in the
case of any such redemption [If applicable, insert--
(whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date;
provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this
Security, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture].
[If applicable, insert--The Securities of this
series are subject to redemption (1) on __________ in any
year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below,
and (2) at any time [on or after ___________________,
19__], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-
month period beginning ____________________ of the years
indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of
the principal amount. [If applicable, insert--and (3)
under the circumstances described in the next [two]
succeeding paragraph[s] at a Redemption Price equal to
[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 on the last day of such Exercise Period, this
Security [If Securities of the series are also issuable
as Bearer Securities, insert--together with all coupons
maturing after the Redemption Date,] accompanied by
written notice to the Company (which shall be
substantially in the form of the [appropriate] form of
notice hereon) that the Holder hereof instructs the
Company to redeem this Security. [If Securities of the
series are also issuable as Bearer Securities, insert--
The Holder of this Security may elect to submit for
redemption by the Company such Security as a whole but
not in part.] Such notice duly received shall be
irrevocable.
[If Securities of the series are to be offered to
United States Aliens, insert--The Securities of this
series may be redeemed, as a whole but not in part, at
the option of the Company, determined as set forth in the
preceding paragraph [If the Security interest-bearing,
insert--, together with interest accrued to the date
fixed for redemption,] if, as a result of any amendment
to, or change in, the laws or regulations of the United
States or any political subdivision or taxing authority
thereof or therein affecting taxation, or any amendment
to or change in an official interpretation or application
of such laws or regulations, which amendment or change is
effective on or after ___________, 19__, the Company will
become obligated to pay additional amounts (as described
on the face hereof) [If the Security is interest-bearing,
insert--on the next succeeding Interest Payment Date] [If
the Security is not to bear interest prior to Maturity,
insert--at Maturity or upon the sale or exchange of any
Security] and such obligation cannot be avoided by the
use of reasonable measures available to the Company;
provided, however, that (a) no such notice of redemption
may be given earlier than 90 days prior to the earliest
date on which the Company would be 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 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
* 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.
who are United States Aliens certain additional amounts
specified in the Bearer Securities of this series. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay to the
Holders of Bearer Securities who are United States Aliens
the additional amounts specified in the Bearer Securities
of this series and (if applicable) the last date by which
the redemption of the Securities must take place. If the
Company elects to redeem the Securities, such redemption
shall take place on such date, not later than one year
after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 75 days
before such date, unless shorter notice is acceptable to
the Trustee. Notwithstanding the foregoing, the Company
will not so redeem the Securities if the Company, based
upon an opinion of independent counsel, subsequently
determines, not less than 30 days prior to the date fixed
for redemption, that subsequent payments would not be
subject to any such requirement, in which case the
Company will notify the Trustee, which will promptly give
notice of that determination in the manner provided
below, and any earlier redemption notice will thereupon
be revoked and of no further effect. If the Company
elects as provided in clause (y) above to pay such
additional amounts to the Holders of Bearer Securities
who are United States Aliens, and as long as the Company
is obligated to pay such additional amounts to such
Holders, the Company may subsequently redeem the
Securities, at any time, as a whole but not in part, at a
Redemption Price determined as set forth in the next
preceding paragraph, together with interest accrued to
the date fixed for redemption, but without reduction for
applicable United States withholding taxes.]
[If applicable(*), insert--In addition, if the
Company determines, based upon a written opinion of
independent counsel, that any payment made outside the
United States by the Company or any of its Paying Agents
of the full amount due with respect to any Bearer
Security would, under any present or future laws or
regulations of the United States, be subject to any
certification, identification or other reporting
requirement of any kind, the effect of which requirement
is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Security
who is a United States Alien (as defined on the face
hereof) (other than such 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
* This provision will only be applicable if the
Securities of the series are not to bear interest
prior to Maturity.
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 [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 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 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 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 such Holder and upon all future Holders of
this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As set forth in, and subject to, the provisions of
the Indenture, no Holder of any Security of this series
will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default
with respect to this series, the Holders of not less than
25% in principal amount of the Outstanding Securities of
this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to
a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium,
if any)] or [any] interest on this Security on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and
premium, if any)] and [any] interest [(including
additional amounts, as described on the face hereof)] on
this Security at the times, place[s] and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this
Security is 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 $______ and any integral multiple
thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this
series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of
a different authorized denomination, as requested by the
Holder surrendering the same.]
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
[If the Securities of the series are also issuable
as Bearer Securities, insert--The Indenture, the
Securities and any coupons appertaining thereto shall be
governed by and construed in accordance with the laws of
the State of New York.]
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby
irrevocably instructs the Company to redeem this Security
in accordance with the terms of the Indenture referred to
in this Security.
The instruction being given in exercise of the
Holder's option to require redemption of this Security to
the extent provided in such Indenture upon a Change in
Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this
Security is submitted for
redemption, please indicate:
__1. Principal Amount
submitted for
redemption:
U.S.$_________________
__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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY AND
FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL
BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS
165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
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 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 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 foregoing obligation to pay additional
amounts will not apply to any one or more of the
following:
(a) any tax, assessment or other governmental
charge which would not have been so imposed but for
(i) the existence of any present or former
connection between such Holder (or between a
fiduciary, settlor, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present 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, assessment or other governmental
charge;
(d) any estate, inheritance, gift, sales,
transfer, personal property or any similar tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental
charge which is payable otherwise than by deduction
or withholding from payments of principal of [(and
premium, if any)] or interest on this Security; or
(f) any tax, assessment or other governmental
charge which would not have been so imposed but for
the presentation by the Holder of this Security or
any coupon appertaining hereto for payment on a date
more than 15 days after the date on which such
payment became due and payable or the date on which
payment thereof is duly provided for, whichever
occurs later;
nor will additional amounts be paid with respect to any
payment of principal of [(and premium, if any) or
interest on this Security to any United States Alien who
is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a
beneficiary or 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 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:
________________________
[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 the election of the
Company, at the following Redemption Prices (expressed as
percentages of the principal amount), if redeemed [on or
before ____,__%, and if redeemed] during the 12-month
period beginning _____ of the years indicated
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of the
principal amount,] [and ( )] under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to 100% of the principal amount,]
together in the case of any such redemption [If
applicable, insert - (whether through operation of the
sinking fund or otherwise)] with accrued interest to the
Redemption Date; provided, however, that interest
installments on this Security whose Stated Maturity is on
or prior to such Redemption Date will be payable only
upon presentation and surrender of coupons for such
interest (at an office or agency located outside the
United States, except as herein provided otherwise).]
[If applicable, insert - The Securities of this
series are subject to redemption (1) on ______ in any
year commencing with the year and ending with the year
____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below,
and (2) at any time [on or after ________ 19__], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, if
redeemed during the 12-month period beginning _____ of
the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to _____% of
the principal amount, and (3) under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to 100% of the principal amount,
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 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
measures available to the Company; provided, however,
that (a) no such notice of redemption may be given
earlier than 90 days prior to the earliest date on which
the Company would be obligated to pay such additional
amounts were a payment in respect of the Securities of
this series then due, and (b) at the time notice of such
redemption is given, such obligation to pay such
additional amounts remains in effect. Immediately prior
to the publication of any notice of redemption pursuant
to this paragraph, the Company shall deliver to the
Trustee a certificate stating that the Company is
entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent
to the right of the Company so to redeem have occurred.
[If applicable*, insert - In addition, if the
Company determines, based upon a written opinion of
independent counsel, that any payment made outside the
United States by the Company or any of its Paying Agents
of the full amount of principal [, premium, if any,] or
interest due with respect to any Bearer Security or
coupon would, under any present or future laws or
regulations of the United States, be subject to any
certification, identification or other information
reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying
Agent or any governmental authority of the nationality,
residence or identity of a beneficial owner of such
Bearer Security or coupon who is a United States Alien
(as defined on the face hereof) (other than such a
requirement (a) which would not be applicable to a
payment made by the Company or any of its Paying Agents
(i) directly to the beneficial owner or (ii) to any
custodian, nominee or other agent of the beneficial
owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying that the beneficial
owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement),
the Company at its election will either (x) redeem the
Securities, as a whole but not in part, at a Redemption
Price equal to 100% of their principal amount, together
with interest accrued to the date fixed for redemption,
or (y) if and so long as the conditions of the fifth
paragraph on the face of this Security are satisfied, pay
the additional amounts specified in such paragraph. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay the
additional amounts specified in such paragraph and (if
applicable) the last date by which the redemption of the
Securities must take place. If the Company elects to
redeem the Securities, such redemption shall take place
on such date, not later than one year after publication
of the Determination Notice, as the Company elects by
notice to the Trustee at least 75 days before such date,
unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so
redeem the Securities if the Company, based upon an
opinion of independent counsel, subsequently determines,
not less than 30 days prior the date fixed for
redemption, that subsequent payments would not be subject
to any such requirement, in which case the Company will
notify the Trustee, which will promptly give notice of
that determination in the manner provided below, and any
earlier redemption notice will thereupon be revoked and
* Generally this provision will only be applicable if
the Securities of the series bear interest at a
fixed rate.
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]
[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 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
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 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 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 registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may
treat the Person in whose in whose name such Security is
registered,] as the owner thereof for 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.
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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION
WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES
INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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
[Reverse of Coupon]
*
______________________________
______________________________
______________________________
______________________________
______________________________
* Insert names and addresses of initial Paying Agents
located outside the United States.
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 payment of such interest shall be legally
enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal
has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum
(to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such
interest has been made or duly provided for, and such
interest shall also be payable on demand.] Such payments
[(including premium, if any)] shall be made, subject to
any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the
Indenture) to rescind the designation of any such 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
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, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present therein, or having or having had
a permanent establishment therein, or (ii) such
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;
(e) any tax, assessment or other governmental
charge which is payable otherwise than by deduction
or withholding from payments of [If the Security is
interest-bearing, insert--principal of [(and
premium, if any)] or interest on this Security] [If
the Security is not to bear interest prior to
Maturity, insert--principal of (or interest on
overdue principal, if any, on) this Security or from
payments from the proceeds of a sale or exchange of
this Security]; or
(f) any tax, assessment or other governmental
charge which would not have been so imposed but for
the presentation by the Holder of this Security [If
the Security is interest-bearing, insert--or any
coupon appertaining hereto] for payment on a date
more than 15 days after the date on which such
payment became due and payable or the date on which
payment thereof is duly provided for, whichever
occurs later;
nor will additional amounts be paid with respect to any
payment of [If the Security is interest-bearing, insert--
principal of [(and premium, if any)] or interest on this
Security] [If the Security is not to bear interest prior
to Maturity, insert--principal of (or interest on overdue
principal, if any, on) this Security or of the proceeds
of any sale or exchange of this Security] to any United
States Alien who is a fiduciary or partnership or other
than the sole beneficial owner of any such payment to the
extent that a beneficiary or settlor with respect to such
fiduciary, a member of such a partnership or the
beneficial owner would not have been entitled to the
additional amount had such beneficiary, settlor, member
or beneficial owner been the Holder of this Security [If
the Security is interest-bearing, insert--or any coupon
appertaining hereto]. The term "United States Alien"
means any Person who, for United States federal income
tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a Foreign partnership of one
or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust, and the term
"United States" means the United States of America
(including the States and the District of Columbia), its
territories, its possessions and other areas subject to
its jurisdiction.
[Notwithstanding the foregoing, if and so long as a
certification, identification or other reporting
requirement referred to in the [fourth] [fifth] paragraph
on the reverse hereof would be fully satisfied by payment
of a backup withholding tax or similar 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
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 and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and any
coupons appertaining thereto and of the terms upon which
the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated
on the face hereof [, limited in aggregate principal
amount to U.S.$ ]. The Securities of this series
are issuable as Bearer Securities, with interest coupons
attached, in the denomination of U.S.$ [, and as
Registered Securities, without coupons, in denominations
of U.S.$ and any integral multiple thereof]. [As
provided in the Indenture and subject to certain
limitations therein set forth, Bearer Securities and
Registered Securities of this series are exchangeable for
a like aggregate principal amount of Registered
Securities of this series and of like tenor of any
authorized denominations, as requested by the Holder
surrendering the same, upon surrender of the Security or
Securities to be exchanged, with all unmatured coupons
and all matured coupons in default thereto appertaining,
at any office or agency described below where Registered
Securities of this series may be presented for
registration of transfer; provided, however, that Bearer
Securities 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
redeemed] during the 12-month period beginning
of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to % of the
principal amount,] [and ( )] under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to [Insert formula for determining
the amount] [If the Security is interest-bearing, insert-
-, together in the case of any such redemption [If
applicable, insert--(whether through operation of the
sinking fund or otherwise)] with accrued interest to the
Redemption Date; provided, however, that interest
installments on this Security whose Stated Maturity is on
or prior to such Redemption Date will be payable only
upon presentation and surrender of coupons for such
interest (at an office or agency located outside the
United States, except as herein provided otherwise)].]
[If applicable, insert--The Securities of this
series are subject to redemption (1) on in any
year commencing with the year and ending with the
year through operation of the sinking fund for
this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after , 19
], as a whole or in part, at the election of the Company,
at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period
beginning of the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to % of the
principal amount, and (3) under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to [Insert formula for determining
the amount] [If the Security is interest-bearing, insert-
-, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date; provided,
however, that interest installments on this Security
whose Stated Maturity is on or prior to such Redemption
Date will be payable only upon presentation and surrender
of coupons for such interest (at an office or agency
located outside the United States, except as herein
provided otherwise)].] [Notwithstanding the foregoing,
the Company may not, prior to redeem any
Securities of this series as contemplated by Clause [(2)]
above as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted
financial practice) of less than % per annum.]
Subject to and upon compliance with the provisions
of the Indenture (unless previously redeemed), this
Security, if submitted for redemption, is subject to
redemption, at the option of the Holder, on or after the
Exchange Date (upon any Change in Control of the Company
as defined in the Indenture) unless the Continuing
Directors, as defined in the Indenture, shall have
approved such Change in Control [If applicable, insert--
or the Company shall have called the Securities for
redemption at the applicable Redemption Price for
redemption at the option of the Company, in either case]
on or before the day which is ten days after such Change
in Control [If applicable, insert--(whether or not such
call occurs before or after such Change in Control)].
The 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
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
* 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.
determines, based upon a written opinion of independent
counsel, that any payment made outside the United States
by the Company or any of its Paying Agents of the full
amount of principal [, premium, if any,] or interest due
with respect to any Bearer Security or coupon would,
under any present or future laws or regulations of the
United States, be subject to any certification,
identification or other information reporting requirement
of any kind, the effect of which requirement is the
disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Security or
coupon who is a United States Alien (as defined on the
face hereof) (other than such a requirement (a) which
would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to any custodian, nominee or
other agent of the beneficial owner, or (b) which can be
satisfied by the custodian, nominee or other agent
certifying that the beneficial owner is a United States
Alien, provided in each case referred to in clauses
(a)(ii) and (b) that payment by such custodian, nominee
or other agent of such beneficial owner is not otherwise
subject to any such requirement), the Company at its
election will either (x) redeem the Securities, as a
whole but not in part, at a Redemption Price determined
as set forth in the next preceding paragraph, together
with interest accrued to the date fixed for redemption,
or (y) if and so long as the conditions of the fifth
paragraph on the face of this Security are satisfied, pay
the additional amounts specified in such paragraph. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay the
additional amounts specified in such paragraph and (if
applicable) the last date by which the redemption of the
Securities must take place. If the Company elects to
redeem the Securities, such redemption shall take place
on such date, not later than one year after publication
of the Determination Notice, as the Company elects by
notice to the Trustee at least 75 days before such date,
unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so
redeem the Securities if the Company, based upon an
opinion of independent counsel, subsequently determines,
not less than 30 days prior to the date fixed for
redemption, that subsequent payments would not be subject
to any such requirement, in which case the Company will
notify the Trustee, which will promptly give notice of
that determination in the manner provided below, and any
earlier redemption notice will thereupon be revoked and
of no further effect. If the Company elects as provided
in clause (y) above to pay additional amounts, and as
long as the Company is obligated to pay such additional
amounts, the Company may subsequently redeem the
Securities, at any time, as a whole but not in part, at a
Redemption Price determined as set forth in the next
preceding paragraph, together with interest accrued to
the date fixed for redemption, but without reduction for
applicable United States withholding taxes.]
[If applicable*, insert--In addition, if the Company
determines, based upon a written opinion of independent
counsel, that any payment made outside the United States
by the Company or any of its Paying Agents of the full
amount due with respect to any Bearer Security would,
under any present or future laws or regulations of the
United States, be subject to any certification,
identification or other reporting requirement of any
kind, the effect of which requirement is the disclosure
to the Company, any Paying Agent or any governmental
authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security who is a United
States Alien (as defined on the face hereof) (other than
such a requirement (a) which would not be applicable to a
payment made by the Company or any one of its Paying
Agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial
owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying to the effect that such
beneficial owner is a United States Alien, provided in
each case referred to in clauses (a)(ii) and (b) that
payment by such custodian, nominee or other agent of such
beneficial owner is not otherwise subject to any such
requirement), the Company at its election will either (x)
permit any Holder of a Bearer Security to present such
Bearer Security for redemption within 90 days of notice
of such redemption, at a Redemption Price determined as
set forth in the next preceding paragraph, or (y) if and
so long as the conditions of the fifth paragraph on the
face of this Security are satisfied, pay the additional
amounts specified in such paragraph. The Company will
make such determination and election and notify the
Trustee thereof as soon as practicable, and the Trustee
will promptly give notice of such determination in the
manner provided below (the "Determination Notice"), in
each case stating the effective date of such
certification, identification or other reporting
requirement, whether the Company has elected to permit
redemption of the Bearer Securities or to pay the
additional amounts specified in such paragraph and (if
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
* This provision will only be applicable if the
Securities of the series are not to bear interest
prior to Maturity.
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 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 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
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 and overdue interest (in each case to the
extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect
of the payment of the principal of and interest, in any,
on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the Company
and the rights of the Holders of the Securities of each
series to be affected [If the Securities of the series
are interest-bearing insert--and any related coupons]
under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of 66 2/3% in
principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of
specified percentages in principal amount of the
Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series
[If the Securities of the series are interest-bearing,
insert--and any related coupons], to waive compliance by
the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security
and any coupon appertaining hereto and any Security
issued in exchange hereof or in lieu hereof, whether or
not notation of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of
the Indenture, no Holder of any Security of this series
[If the Security is interest-bearing, insert--or any
related coupon] will have any right to institute any
proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a
continuing Event of Default with respect to this series,
the Holders of not less than 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
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
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.
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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company]
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION
WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES
INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTION 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE
OF 1954, AS AMENDED.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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
[Reverse of Coupon]
*
___________________________
___________________________
___________________________
___________________________
___________________________
* Insert names and addresses of initial Paying Agents
located outside the United States.
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
certificate from each person entitled to delivery of any
of the above-captioned Securities in bearer form
purchased from it; provided, however, that if the
undersigned has actual knowledge that the information
contained in such a certificate is false, (and, absent
documentary evidence that the beneficial owner of such
Security is not a United States Person, it will be deemed
to have actual knowledge that such beneficial owner,
other than a financial institution described above, is a
United States Person if it has a United States address
for such beneficial owner), the undersigned will not
deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding
the delivery of such certificate to the undersigned.
As used herein, "United States person" means any
citizen or resident of the United States, any
corporation, partnership or other entity created or
organized in or under the laws of the United States and
any estate or trust the income of which is subject to
United States Federal income taxation regardless of its
source, and "United States" means the United States of
America (including the States and the District of
Columbia), its territories and its possessions.
We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on
the date of delivery of the above-captioned Securities in
bearer form as to all of such Securities.
We understand that this certificate may be required
in connection with certain tax legislation in the United
States. If administrative or legal proceedings are
commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably
authorize you to produce this certificate or a copy to
any interested party in such proceedings.
Dated: , 19
[To be dated on or after
, 19 (the date
determined as provided in
the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
________________________
(Authorized Signatory)
Name:
Title:
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.]
By_________________________
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_________________________
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.
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:
INTERNATIONAL PAPER COMPANY
TO
THE CHASE MANHATTAN BANK, N.A.
Trustee
Indenture
Dated as of April 1, 1994
____________
Subordinated Debt Securities
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.
TABLE OF CONTENTS(1)
PAGE
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . 1
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
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 25
SECTION 3.2 Denominations . . . . . . . . . . . . 29
SECTION 3.3 Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . 30
SECTION 3.4 Temporary Securities . . . . . . . . 32
SECTION 3.5 Registration, Registration of Transfer
and Exchange . . . . . . . . . . . 35
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities and Coupons . . . . . . . 40
SECTION 3.7 Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . 42
SECTION 3.8 Persons Deemed Owners . . . . . . . . 43
SECTION 3.9 Cancellation . . . . . . . . . . . . 44
1 NOTE: This table of contents shall not, for any
purpose, be deemed to be a part of the Indenture.
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 . . . . . . . . . . . . . 45
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 . . . . . . . . . . 52
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . 54
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . 55
SECTION 5.4 Trustee May File Proofs of Claim. . . 56
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons 57
SECTION 5.6 Application of Money Collected . . . 58
SECTION 5.7 Limitation on Suits . . . . . . . . . 58
SECTION 5.8 Unconditional Right of Holders to
Receive Principal, Premium and
Interest . . . . . . . . . . . . . 59
SECTION 5.9 Restoration of Rights and Remedies . 59
SECTION 5.10 Rights and Remedies Cumulative . . . 60
SECTION 5.11 Delay or Omission Not Waiver . . . . 60
SECTION 5.12 Control by Holders of Securities . . 60
SECTION 5.13 Waiver of Past Defaults . . . . . . . 61
SECTION 5.14 Undertaking for Costs . . . . . . . . 61
SECTION 5.15 Waiver of Stay or Extension Laws . . 62
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Rights of Trustee . . . . . . 62
SECTION 6.2 Not Responsible for Recitals or
Issuance of Securities . . . . . . 64
SECTION 6.3 May Hold Securities . . . . . . . . . 64
SECTION 6.4 Money Held in Trust . . . . . . . . . 64
SECTION 6.5 Compensation and Reimbursement . . . 64
SECTION 6.6 Resignation and Removal; Appointment
of Successor . . . . . . . . . . . 65
SECTION 6.7 Acceptance of Appointment by
Successor . . . . . . . . . . . . . 67
SECTION 6.8 Disqualification; Conflicting
Interests . . . . . . . . . . . . . 69
SECTION 6.9 Corporate Trustee Required;
Eligibility . . . . . . . . . . . . 69
SECTION 6.10 Preferential Collection of Claims
Against Company . . . . . . . . . . 69
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business . . . . . . 69
SECTION 6.12 Appointment of Authenticating Agent . 70
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Preservation of Information;
Communications to Holders . . . . . 72
SECTION 7.2 Reports by Trustee . . . . . . . . . 74
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE,
TRANSFER OR OTHER DISPOSITION
SECTION 8.1 Company May Consolidate, Etc. Only on
Certain Terms . . . . . . . . . . . . 74
SECTION 8.2 Successor Substituted . . . . . . . . 76
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without
Consent of Holders . . . . . . . . 76
SECTION 9.2 Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . 78
SECTION 9.3 Execution of Supplemental Indentures 80
SECTION 9.4 Effect of Supplemental Indentures . . 80
SECTION 9.5 Conformity with Trust Indenture Act . 81
SECTION 9.6 Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . 81
SECTION 9.7 Subordination Unimpaired . . . . . . 81
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and
Interest . . . . . . . . . . . . . 81
SECTION 10.2 Maintenance of Office or Agency . . . 82
SECTION 10.3 Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . 84
SECTION 10.4 Additional Amounts . . . . . . . . . 85
SECTION 10.5 Existence . . . . . . . . . . . . . . 87
SECTION 10.6 Purchase of Securities by Company or
Subsidiary . . . . . . . . . . . . 87
SECTION 10.7 Statement by Officers as to Default . 87
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Applicability of Article . . . . . . 88
SECTION 11.2 Election to Redeem; Notice to Trustee 88
SECTION 11.3 Selection by Trustee of Securities to
Be Redeemed . . . . . . . . . . . . 88
SECTION 11.4 Notice of Redemption . . . . . . . . 89
SECTION 11.5 Deposit of Redemption Price . . . . . 90
SECTION 11.6 Securities Payable on Redemption Date 91
SECTION 11.7 Securities Redeemed in Part . . . . . 92
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article . . . . . . 92
SECTION 12.2 Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . 93
SECTION 12.3 Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . 93
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be
Called . . . . . . . . . . . . . . 94
SECTION 13.2 Call, Notice and Place of Meetings . 94
SECTION 13.3 Persons Entitled to Vote at Meetings 95
SECTION 13.4 Quorum; Action . . . . . . . . . . . 95
SECTION 13.5 Determination of Voting Rights; Conduct
and Adjournment Of Meetings. . . . 97
SECTION 13.6 Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . 98
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 Applicability of Article . . . . . . 99
SECTION 14.2 Redemption at Option of Holders Upon
a Change in Control of the Company 99
SECTION 14.3 Notice of Change in Control . . . . 100
SECTION 14.4 Deposit of Redemption Price . . . . 101
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 Applicability of Article . . . . . 101
SECTION 15.2 Exercise of Conversion Privilege . 101
SECTION 15.3 No Fractional Shares . . . . . . . . 103
SECTION 15.4 Adjustment of Conversion Price . . . 104
SECTION 15.5 Notice of Certain Corporate Actions . 104
SECTION 15.6 Reservation of Shares of Common Stock 106
SECTION 15.7 Payment of Certain Taxes Upon
Conversion . . . . . . . . . . . . 106
SECTION 15.8 Nonassessability . . . . . . . . . . 106
SECTION 15.9 Effect of Consolidation or Merger on
Conversion Privilege . . . . . . . 106
SECTION 15.10 Duties of Trustee Regarding
Conversion . . . . . . . . . . . . 108
SECTION 15.11 Repayment of Certain Funds Upon
Conversion . . . . . . . . . . . . 108
ARTICLE XVI
SUBORDINATION OF SECURITIES
SECTION 16.1 Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . 109
SECTION 16.2 Payment Over of Proceeds Upon
Dissolution, Etc . . . . . . . . . 109
SECTION 16.3 Prior Payment to Senior Indebtedness
Upon Acceleration of Securities . . 111
SECTION 16.4 No Payment When Senior Indebtedness in
Default . . . . . . . . . . . . . . 112
SECTION 16.5 Payment Permitted If No Default . . . 113
SECTION 16.6 Subrogation to Rights of Holders of
Senior Indebtedness . . . . . . . . 113
SECTION 16.7 Provisions Solely to Define Relative
Rights . . . . . . . . . . . . . . 114
SECTION 16.8 Trustee to Effectuate Subordination . 115
SECTION 16.9 No Waiver of Subordination Provisions 115
SECTION 16.10 Notice to Trustee . . . . . . . . . . 116
SECTION 16.11 Reliance on Judicial Order or
Certificate of Liquidating Agent . 117
SECTION 16.12 Trustee Not Fiduciary For Holders of
Senior Indebtedness . . . . . . . . 117
SECTION 16.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . 118
SECTION 16.14 Article Applicable to Paying Agents . 118
SECTION 16.15 Defeasance of This Article Sixteen . 118
SECTION 16.16 Certain Conversions Deemed Payment . 118
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 Indenture 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 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, and of general circulation in the
place, in connection with which the term is used, or in
the financial community of such place. Where successive
publications are required to be made in Authorized
Newspapers, the successive publications may be made in
the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on
any Business Day.
"Bearer Security" means any Security in the form set
forth in either Exhibit C or Exhibit D to this Indenture
or established pursuant to Section 2.1 which is payable
to bearer.
"Board of Directors" means either the board of
directors of the Company or any duly authorized committee
of that board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of
the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
"Book-Entry Security" means a Security bearing the
legend specified in Section 2.4, evidencing all or part
of a series of Securities, issued to the Depository for
such series or its nominee, and registered in the name of
such Depository or nominee. Book-Entry Securities shall
not be deemed to be securities in global form for
purposes of Sections 2.1 and 2.3 and Article III of the
Indenture.
"Business Day", when used with respect to any Place
of Payment or any other particular location referred to
in this Indenture or in the Securities, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is
not a day on which banking institutions in that Place of
Payment or other location are authorized or obligated by
law or executive order to close.
"Change in Control" shall mean a change in control
of the Company which shall be deemed to have occurred at
such time or times as (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 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.
"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.
"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;
(ii) Securities for whose payment or
redemption money in the necessary amount has
been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by
the Company (if the Company shall act as its
own Paying Agent) for the Holders of such
Securities and any coupons appertaining
thereto; provided that, if such Securities are
to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee
has been made; and
(iii) Securities which have been paid
pursuant to Section 3.6 or in exchange for or
in lieu of which other Securities have been
authenticated and delivered pursuant to this
Indenture, other than any such Securities in
respect of which there shall have been
presented to the Trustee proof satisfactory to
it that such Securities are held by a bona fide
purchaser in whose hands such Securities are
valid obligations of the Company;
provided, however, that in determining whether the
Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver
hereunder or whether a quorum is present at a meeting of
Holders of Securities (i) the principal amount of an
Original Issue Discount Security that shall be deemed to
be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of
such determination upon acceleration of the Maturity
thereof pursuant to Section 5.2, (ii) the principal
amount of a Security denominated in a foreign currency or
currencies shall be the U.S. dollar equivalent,
determined on the date of original issuance of such
Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such
Security of the amount determined as provided in (i)
above) of such Security, and (iii) Securities owned by
the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other 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
satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is
not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other 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 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.
"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.
"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 connection 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
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, 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 installment of principal thereof or
interest thereon, means the date specified in such
Security or a coupon representing such installment of
interest as the fixed date on which the principal of such
Security or such installment of principal or interest is
due and payable.
"Subsidiary" shall mean any corporation of which at
least a majority of the outstanding stock having by the
terms thereof ordinary voting power to elect a majority
of the board of directors of such corporation (whether or
not at the time stock of any other class or classes of
such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the
time directly or indirectly owned or controlled by the
Company, or by one or more Subsidiaries, or by the
Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor
Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act
of 1939 as in force at the date as of which this
instrument was executed, provided, however, that in the
event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act
of 1939 as so amended.
"United States" means the United States of America
(including the States and the District of Columbia), its
territories, its possessions and other areas subject to
its jurisdiction.
"United States Alien" means any Person who, for
United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-
resident alien fiduciary of a foreign estate or trust, or
a foreign partnership one or more of the members of which
is, for United States Federal income tax purposes, a
foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or
trust.
"U.S. Government Obligations" means direct
obligations of the United States for the payment of which
its full faith and credit is pledged, or obligations of a
person controlled or supervised by and acting as an
agency or instrumentality of the United States and the
payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States which,
in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a
depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S.
Government Obligations or a specific payment of or
interest on any such U.S. Government Obligations held by
such custodian for the account of the holder of such
depository receipt, provided that (except as required by
law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the
custodian in respect of the U.S. Government 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 accordance with accepted financial
practice.
SECTION 1.2 Compliance Certificates and Opinions.
Except as otherwise expressly provided by this
Indenture, upon any application or request by the Company
to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee
an Officers' 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 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
representations by, an officer or officers of the Company
stating that the information with respect to such factual
matters is in the possession of the Company, unless such
counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or
representations with respect to such matters are
erroneous.
Where any Person is required to make, give or
execute two or more applications, requests, consents,
certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such
Holders in person or by agent duly appointed in writing.
If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action
provided or permitted by this Indenture to be given or
taken by Holders of such series may, alternatively, be
embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of
Article Thirteen, or a combination of such instruments
and any such record. Except as herein otherwise
expressly provided, such action shall become effective
when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied
therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such
instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy, or of the
holding by any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be
proved in the manner provided in Section 13.6.
(b) The fact and date of the execution by any
Person of any such instrument or writing may be proved by
the affidavit of a witness of such execution or by a
certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other
than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any
such instrument or writing, or the authority of the
Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of
Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security
Register.
(d) The principal amount and serial numbers of
Bearer Securities held by any Person, and the date of
holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other
depositary, wherever situated, if such certificate shall
be deemed by the Trustee to be satisfactory, showing that
at the date therein mentioned such Person had on deposit
with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved
by the certificate or affidavit of the Person holding
such Bearer Securities, if such certificate or affidavit
is deemed by the Trustee to be satisfactory. The Trustee
and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate
or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person,
or (3) such Bearer Security is surrendered in exchange
for a Registered Security, or (4) such Bearer Security is
no longer Outstanding. The principal amount and serial
numbers of Bearer Securities held by any Person, and the
date of holding the same, may also be proved in any other
manner which the Trustee deems sufficient.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any
Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor
or in lieu thereof in respect of anything done, omitted
or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action
is made upon such Security.
(f) With respect to the Securities of any Series
all or part of which are represented by Book-Entry
Securities, the following provisions shall apply:
(1) Upon receipt by the Trustee of (i)
any written notice directing the time, method
or place of conducting any proceeding or
exercising any 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
Holder, or a proxy of a Holder, from giving,
(i) after the expiration of such 90-day period,
a new demand, request or notice identical to a
demand, request or notice which has been
canceled pursuant to the proviso to the
preceding sentence or (ii) during any such 90-
day period, a new demand, request or notice
which has been canceled pursuant to the proviso
to the preceding sentence or (iii) during any
such 90-day period, a new demand, request or
notice contrary to or different from such
demand, request or notice, in either of which
events a new record date shall be 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 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 Indenture Act, the Company shall
not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any action to
be given or taken by Holders pursuant to Section 5.1, 5.2
or 5.12.
SECTION 1.5 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the
Company shall be sufficient for every purpose
hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any
Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class
postage prepaid, to the Company addressed to it
at the address of its principal office
specified in the first paragraph of this
instrument, to the attention of its Secretary,
or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of
Securities of any event:
(1) such notice shall be sufficiently
given to Holders of Registered Securities if in
writing and mailed, first-class postage
prepaid, to each Holder of a Registered
Security affected by such event, at the address
of such Holder as it appears in the Security
Register, not earlier than the earliest date,
and not later than the latest date, prescribed
for the giving of such notice; and
(2) such notice shall be sufficiently
given to Holders of Bearer Securities if
published in an Authorized Newspaper in The
City of New York, The City of London and in
such other city or cities as may be specified
in such Securities on a Business Day at least
twice, the first such publication to be not
earlier than the earliest date, and not later
than the latest date, prescribed for the giving
of such notice.
In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be
impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as
shall be made with the approval of the Trustee shall
constitute sufficient notice to such Holders for every
purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the
failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered
Security shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by reason of the suspension of publication
of any Authorized Newspaper or Authorized Newspapers or
by reason of any other cause it shall be impracticable to
publish any notice to Holders of Bearer Securities as
provided above, then such notification as shall be given
with the approval of the Trustee shall constitute
sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided
above, nor any defect in any notice so published, shall
affect the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders of
Securities shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.7 Language of Notices, Etc.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except
that any published notice may be in an official language
of the country of publication.
SECTION 1.8 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required
to be included in this Indenture by any of the provisions
of the Trust Indenture Act, such required provision shall
control.
SECTION 1.9 Effect of Headings 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.
SECTION 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by
the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 1.11 Separability Clause.
In case any provision in this Indenture or the
Securities or coupons shall be invalid, illegal or
unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.12 Benefits of Indenture.
Nothing in this Indenture or the Securities or
coupons, express or implied, shall give to any Person,
other than the parties hereto, their successors hereunder
and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.13 Governing Law.
This Indenture and the Securities and coupons shall
be governed by and construed in accordance with the laws
of the State of New York without regard to conflicts of
laws.
SECTION 1.14 Legal Holidays.
In any case where any Interest Payment Date,
Redemption Date or Stated Maturity of any Security shall
not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or
of the Securities or coupons other than a provision in
the Securities of any series which specifically states
that such provision shall apply in lieu of this Section)
payment of interest or principal (and premium, if any)
need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as
if made on the Interest Payment Date or Redemption Date,
or at the Stated Maturity, provided that no interest
shall accrue on the amount so payable for the period from
and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Registered Securities, if any, of each series
and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms set
forth in Exhibits A, B, C or D to this Indenture, or in
such other form (including temporary or permanent global
form) as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined
by the officers executing such Securities or coupons, as
evidenced by their execution of the Securities or
coupons. If temporary Securities of any series are
issued in global form as permitted by Section 3.4, the
form thereof shall be established as provided in the
preceding sentence. If the forms of Securities or
coupons of any series (or any such temporary global
Security) are established by action taken pursuant to a
Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Company Order
contemplated by Section 3.3 for the authentication and
delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by
Section 3.1, Securities in bearer form shall have
interest coupons attached.
The definitive Securities and coupons, if any, shall
be printed, lithographed or engraved on steel engraved
borders or may be produced in any other manner, all as
determined by the officers executing such Securities or
coupons, as evidenced by their execution of such
Securities or coupons.
SECTION 2.2 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.
The provisions of the last sentence of Section 3.3
shall apply to any security represented by a Security in
global form if such Security was never issued and sold by
the Company and the Company delivers to the Trustee the
Security in global form together with written
instructions (which need not comply with Section 1.2 and
need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of
Securities represented thereby, together with the written
statement contemplated by the last sentence of Section
3.3.
Notwithstanding the provisions of Sections 2.1 and
3.7, unless otherwise specified as contemplated by
Section 3.1, payment of principal of and any premium and
interest on any Security in permanent global form shall
be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and
except as provided in the preceding paragraph, the
Company, the Trustee and any agent of the Company and the
Trustee shall treat a Person as the Holder of such
principal amount of Outstanding Securities represented by
a permanent global Security as shall be specified in a
written statement of the Holder of such permanent global
Security or, in the case of a permanent global Security
in bearer form, of Euro-clear or CEDEL S.A. which is
provided to the Trustee by such Person.
SECTION 2.4 Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered
hereunder shall bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the
meaning of the Indenture hereinafter referred to and is
registered in the name of a Depository or a nominee of a
Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the
Depository or its nominee only in the limited
circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security
as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository) may be
registered except in such limited circumstances."
SECTION 2.5 Form of Conversion Notice.
The form of Conversion Notice for the conversion of
Securities into shares of Common Stock or other
securities of the Company shall be in substantially the
form included under the applicable form of Securities as
set forth in Exhibits A, B, C and D hereto.
ARTICLE III
THE SECURITIES
SECTION 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture
is unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board
Resolution and, subject to Section 3.3, set forth, or
determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities
of any series:
(1) the title of the Securities of the
series (which shall distinguish the Securities
of the series from all other Securities);
(2) any limit upon the aggregate
principal amount of the Securities of the
series which may be authenticated and delivered
under this Indenture (except for Securities
authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu
of, other Securities of the series pursuant to
Section 3.4, 3.5, 3.6, 9.6 or 11.7 and except
for any Securities which, pursuant to Section
3.3, are deemed never to have been
authenticated and delivered hereunder);
(3) whether Securities of the series are
to be issuable as Registered Securities, Bearer
Securities or both, whether any Securities of
the series are to be issuable initially in
temporary global form and whether any
Securities of the series are to be issuable in
permanent global form with or without coupons
and, if so, whether beneficial owners of
interests in any such permanent global Security
may exchange such interests for Securities of
such series and of like tenor of any authorized
form and denomination and the circumstances
under which any such exchanges may occur, if
other than in the manner provided in Section
3.5;
(4) the Person to whom any interest on
any Registered Security of the series shall be
payable, if other than the Person in whose name
that Security (or one or more Predecessor
Securities) is registered at the close of
business on the Regular Record Date for such
interest, the manner in which, or the Person to
whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than
upon presentation and surrender of the coupons
appertaining thereto as they severally mature,
and the extent to which, or the manner in
which, any interest payable on a temporary
global Security on an Interest Payment Date
will be paid if other than in the manner
provided in Section 3.4;
(5) the date or dates on which the
principal of the Securities of the series is
payable;
(6) the rate or rates at which the
Securities of the series shall bear interest,
if any, or the formula pursuant to which such
rate or rates shall be determined, the date or
dates from which any such interest shall
accrue, the Interest Payment Dates on which any
such interest shall be payable, the Regular
Record Date for any interest payable on any
Registered Securities on any Interest Payment
Date;
(7) the place or places where, subject to
the provisions of Sections 11.4 and 10.2, the
principal of and any premium and interest on
Securities of the series shall be payable, any
Registered Securities of the series, may be
surrendered for registration of transfer,
Securities of the series may be surrendered for
exchange, notices and demands to or upon the
Company in respect of the Securities of the
series and this Indenture may be served and
where notices to Holders of Bearer Securities
pursuant to Section 1.6 will be published;
(8) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Company;
(9) the period or periods within which,
the price or prices at which and the terms and
conditions upon which Securities of the series
may be redeemed, in whole or in part, at the
option of the Holders pursuant to Article XIV,
or such terms and conditions as shall be set
forth in an Officers' Certificate or
supplemental indenture;
(10) the obligation, if any, of the
Company to redeem or purchase Securities of the
series, or 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 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, 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 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 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 owner's interest in such permanent global
Security. Except as permitted by Section 3.6, the
Trustee shall not authenticate and deliver any Bearer
Security unless all appurtenant coupons for interest then
matured have been detached and cancelled.
If the forms or terms of the Securities of the
series and any related coupons have been established in
or pursuant to one or more Board Resolutions as permitted
by Sections 2.1 and 3.1, in authenticating such
Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating:
(a) if the forms of such Securities and any coupons
have been established by or pursuant to Board Resolution
as permitted by Section 2.1, that such forms have been
established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities and any coupons
have been established by or pursuant to Board Resolution
as permitted by Section 3.1, that such terms have been
established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by
the Trustee and issued by the Company in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance
with their terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the
enforcement of creditors' rights and to general equity
principles.
If such forms or terms have been so established, the
Trustee shall not be required to authenticate such
Securities if the issue or such Securities pursuant to
this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not
reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of
the two preceding paragraphs, if all Securities of a
series are not to be originally issued at one time, it
shall not be necessary to deliver the Officers'
Certificate otherwise required pursuant to Section 3.1 or
the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraphs at or
prior to the time of authentication of each Security of
such series if such documents are delivered at or prior
to the authentication upon original issuance of the first
Security of such series to be issued.
Each Registered Security shall be dated the date of
its authentication; and each Bearer Security shall be
dated as of the date of original issuance of the first
Security of such series to be issued.
No Security or coupon shall be entitled to any
benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security, or
the Security to which such coupon appertains, a
certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but
never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for
cancellation as provided in Section 3.9 together with a
written statement (which need not comply with Section 1.2
and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to
the benefits of this Indenture.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities of
any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are
issued, in registered form or, if authorized, in bearer
form with one or more coupons or without coupons, and
with such appropriate insertions, omissions,
substitutions and other variations as the officers
executing such Securities or coupons may determine, as
evidenced by their execution of such Securities or
coupons. In the case of any series issuable as Bearer
Securities, such temporary Securities may be in global
form. A temporary Bearer Security shall be delivered
only in compliance with the conditions set forth in
Section 3.3.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with the
provisions of the following paragraphs), if temporary
Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of
definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or
agency of the Company maintained pursuant to Section 10.2
in a Place of Payment for such series for the purpose of
exchanges of Securities of such series, without charge to
the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series (accompanied
by any unmatured coupons appertaining thereto) the
Company shall execute and the Trustee 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 Depositary"), for the benefit of Euro-clear and
CEDEL S.A., for credit to the respective accounts of the
beneficial owners of such Securities (or to such other
accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the
terms of, any such temporary global Security (the
"Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series, in
aggregate principal amount equal to the principal amount
of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary
global Security shall be surrendered by the Common
Depositary to the Trustee, as the Company's 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 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 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.
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 the case may be, in
respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the
provisions of this Indenture.
Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise
specified as contemplated by Section 3.1, any permanent
global Security shall be exchangeable only as provided in
this paragraph. If the beneficial owners of interests in
a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor
and principal amount of another authorized form and
denomination, as specified as contemplated by Section
3.1, then without unnecessary delay but in any event not
later than the earliest date on which such interests may
be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in aggregate
principal amount equal to the principal amount of such
permanent global Security, executed by the Company. On or
after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other
depositary or Common Depositary as shall be specified in
the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive
Securities of such series without charge and the Trustee
shall authenticate and deliver, in exchange for each
portion of such permanent global Security, a like
aggregate principal amount of definitive Securities of
the same series of authorized denominations and of like
tenor as the portion of such permanent global Security to
be exchanged which, unless the Securities of the series
are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by
Section 3.1, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof;
provided, however, that no Bearer Security delivered in
exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in
the United States. If a Registered Security is issued in
exchange for any portion of a permanent global Security
after the close of business at the office or agency where
such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at
such office or 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 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 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 a Book-
Entry Security and shall bear the legend specified in
Section 2.4 except for any Security authenticated and
delivered in exchange for, or upon registration of
transfer of, Book-Entry Security pursuant to the
preceding sentence.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities and Coupons.
If any mutilated Security or a Security with a
mutilated coupon appertaining thereto is surrendered to
the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and
principal amount and bearing a number not
contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to the surrendered
Security and such mutilated Security or a Security with a
mutilated coupon, if any, shall be cancelled by the
Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the
Trustee (i) evidence to their satisfaction of the
destruction, loss or theft of any Security or coupon and
(ii) such security or indemnity as may be required by
them, then, in the absence of notice to the Company or
the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall,
subject to the following paragraph, execute, and the
Trustee shall authenticate and deliver, in lieu of any
such destroyed, lost or stolen Security or in exchange
for the Security to which a destroyed, lost or stolen
coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same
series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to
such destroyed, lost or stolen Security or to the
Security to which such destroyed, lost or stolen coupon
appertains.
In case any such mutilated, destroyed, lost or
stolen Security or coupon has become or is about to
become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security
or coupon; provided, however, that principal of and any
premium and interest on Bearer Securities shall, except
as otherwise provided in Section 10.2, be payable only at
an office or agency located outside the United States.
Upon the issuance of any new Security under this
Section, the Company may require payment of a sum
sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series, with any coupons
appertaining thereto, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security or in
exchange for a Security to which a destroyed, lost or
stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Security and any
coupons appertaining thereto, or the destroyed, lost or
stolen coupon shall be at any time enforceable by anyone,
and any such new Security and coupons, if any, 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 the proposed payment, and at
the same time the Company shall deposit with
the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed
payment, such money when deposited to be held
in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to
the date of the proposed payment and not less
than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The
Trustee shall promptly notify the Company of
such Special Record Date and, in the name and
at the expense of the Company, shall cause
notice of the proposed payment of such
Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage
prepaid, to each Holder of Registered
Securities of such series at the address of
such Holder as it appears in the Security
Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the
Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Registered
Securities of such series (or their respective
Predecessor Securities) are registered at the
close of business on such Special Record Date
and shall no longer be payable pursuant to the
following Clause (2); and
(2) The Company may make payment of any
Defaulted Interest on the Registered Securities
of any series in any other lawful manner not
inconsistent with the requirements of any
securities exchange on which such Securities
may be listed, and upon such notice as may be
required by such exchange, if, after notice
given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable
by the Trustee.
Subject to the foregoing provisions of this Section
and Section 3.5, each Security delivered under this
Indenture upon registration of, transfer of or in
exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue,
which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Registered Security
for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the
Person in whose name such Registered Security is
registered as the owner of such Registered Security for
the purpose of receiving payment of principal of (and
premium, if any) and (subject to Sections 3.5 and 3.7)
any interest on such Security and for all other purposes
whatsoever, whether or not such Security shall be
overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by
notice to the contrary.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by 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 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.
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 provisions of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to
be of further effect (except as to any surviving rights
of registration of transfer or exchange of Securities
herein expressly provided for, and any right to receive
additional amounts, as provided in Section 10.4), and the
Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(1) either
(A) all Securities theretofore
authenticated and delivered and all coupons, if
any, appertaining thereto (other than (i)
coupons appertaining to Bearer Securities
surrendered for exchange for Registered
Securities and maturing after such exchange,
whose surrender is not required or has been
waived as provided in Section 3.5, (ii)
Securities and coupons which have been
destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6,
(iii) coupons appertaining to Securities called
for redemption and maturing after the relevant
Redemption Date, whose surrender has been
waived as provided in Section 11.6, and (iv)
Securities and coupons for whose payment money
has theretofore been deposited in trust or
segregated and held in trust by the Company and
thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.3)
have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case
of (i) or (ii) below, any coupons appertaining
thereto not theretofore delivered to the
Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in
the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or
(iii) above, has deposited or caused to be
deposited with the Trustee as trust funds in
trust for the purpose, an amount sufficient to
pay and discharge the entire indebtedness on
such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for
principal (and premium, if any) and any
interest to the date of such deposit (in the
case of Securities which have become due and
payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be
paid all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions
precedent herein provided for relating to the
satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of
this Indenture, the obligations of the Company to the
Trustee under Section 6.7, the obligations of the Trustee
to any Authenticating Agent under Section 6.14 and, if
money shall have been deposited with the Trustee pursuant
to clause (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 determine, to the Persons entitled
thereto, of the principal (and premium, if any) and any
interest for whose payment such money has been deposited
with the Trustee.
SECTION 4.3 Satisfaction, Discharge and Defeasance of
Securities of any Series.
If this Section 4.3 is specified, as contemplated by
Section 3.1, to be applicable to Securities of any
series, then notwithstanding Section 4.1: (i) the Company
shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of any
such series; (ii) the provisions of this Indenture as it
relates to such Outstanding Securities shall no longer be
in effect (except as to the rights of Holders of
Securities to receive, from the trust fund described in
subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of
(and premium, if any) or interest on such Securities on
the Stated Maturity of such principal (and premium, if
any) or installment of principal (and premium, if any) or
interest or (y) any mandatory sinking fund payments or
analogous payments applicable to the Securities of that
series on that day on which such payments are due and
payable in accordance with the terms of the Indenture and
of such Securities, the 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 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
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 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 payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the
principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking
fund payment, when and as due by the terms of a
Security of that series; or
(4) default in the performance, or
breach, of any covenant or warranty of the
Company in this Indenture (other than a
covenant or warranty a default in whose
performance or whose breach is elsewhere in
this Section specifically dealt with or which
has expressly been included in this Indenture
solely for the benefit of series of Securities
other than that series), and continuance of
such default or breach for a period of 60 days
after there has been given, by registered or
certified mail, to the Company by the Trustee
or to the Company and the Trustee by the
Holders of at least 25% in principal amount of
the Outstanding Securities of that series, a
written notice specifying such default or
breach and requiring it to be remedied and
stating that such notice is a "Notice of
Default, hereunder; or
(5) the entry by a court having
jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in
an involuntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or (B) a decree or order adjudging the Company
a bankrupt or insolvent, or approving as
properly filed a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company
under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other
similar official of the Company or of any
substantial part of its property, or ordering
the winding up or liquidation of its affairs,
and the continuance of any such decree or order
for relief or any such other decree or order
unstayed and in effect for a period of 60
consecutive days; or
(6) the commencement by the Company of a
voluntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order
for relief in respect of the Company in an
involuntary case or proceeding under any
applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law
or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or
the filing by it of a petition or answer or
consent seeking reorganization or relief under
any applicable Federal or State law, or the
consent by it to the filing of such petition or
to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of
the Company or of any substantial part of its
property, or the making by it of an assignment
for the benefit of creditors, or the admission
by it in writing of its inability to pay its
debts generally as they become due, or the
taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided
with respect to Securities of that series.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment.
If an Event of Default with respect to Securities of
any series at the time Outstanding occurs and is
continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that
series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may
be specified in the terms thereof) of all of the
Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), and upon any such
declaration such principal amount (or specified amount)
shall become immediately due and payable.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made
and before adjudgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in
principal amount of the Outstanding Securities of that
series, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited
with the Trustee a sum sufficient to pay,
(A) all overdue interest on all
Securities of that series,
(B) the principal of (and premium, if any,
on) any Securities of that series which have
become due otherwise than by such declaration
of acceleration and any interest thereon at the
rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue
interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the
Trustee hereunder and the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to
Securities of that series, other than the non-
payment of the principal of Securities of that
series which have become due solely by such
declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for
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 interest becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the
principal of (or premium, if any, on) any
Security of any series at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities of that
series and any coupons appertaining thereto, the whole
amount then due and payable on such Securities of that
series and coupons for principal and any premium and
interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue
principal and on the premium, if any, and overdue
interest, at the rate or rates prescribed therefor in
such Securities of that series and, in addition thereto,
such further amount as shall be sufficient to cover the
costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as
trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or
final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company or any
other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights
and the rights of the Holders of Securities of such
series and any coupons appertaining thereto by such
appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any
other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor
upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the
Trustee shall 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
(including any claim for the reasonable
compensation, expenses, disbursements and
advances of the Trustee, its agents and
counsel) and of the Holders of Securities and
coupons allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or
other property payable or deliverable on any
such claims and to distribute the same,
and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each
Holder of Securities and coupons to make such payments to
the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the
Holders of Securities and coupons, to pay to the Trustee
any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee
under Section 6.7.
Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or
accept or adopt on behalf of any Holder of a Security or
coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or
coupons or the rights of any Holder thereof or to
authorize the Trustee to vote in respect of the claim of
any Holder of a Security or coupon in any such
proceeding.
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities or Coupons.
All rights of action and claims under this Indenture
or the Securities or coupons may be prosecuted and
enforced by the Trustee without the possession of any of
the Securities or coupons or the production thereof in
any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for
the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been
recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this
Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities
or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due
the Trustee under Section 6.7; and
SECOND: To the payment of the amounts
then due and unpaid for principal of and any
premium and interest on the Securities and
coupons in respect of which or for the benefit
of which such money has been collected,
ratably, without preference or priority of any
kind, according to the amounts due and payable
on such Securities and coupons for principal
and any premium and interest, respectively.
SECTION 5.7 Limitation on Suits.
No Holder of any Security of any series or any
related coupons shall have any right to institute any
proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless;
(1) such Holder has previously given
written notice to the Trustee of a continuing
Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in
principal amount of the Outstanding Securities
of that series shall have made written request
to the Trustee to institute proceedings in
respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered
to the Trustee reasonable indemnity against the
costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its
receipt of such notice, request and offer of
indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such
written request has been given to the Trustee
during such 60-day period by the Holders of a
majority in principal amount of the Outstanding
Securities of that series;
it being understood and intended that no one or more of
such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to
obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal
and ratable benefit of all of such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall
have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and
(subject to Section 3.7) interest on such Security or
payment of such coupon on the Stated Maturity or
Maturities expressed in such Security or coupon (or, in
the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent
of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon
has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination
in such proceeding, the Company, the Trustee and the
Holders of Securities and coupons shall be restored
severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or
stolen Securities or coupons in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities
or coupons is intended to be exclusive or any other right
or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Security or coupon to exercise any right or remedy
accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or
to the Holders of Securities or coupons may be exercised
from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities
or coupons, as the case may be.
SECTION 5.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right
to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee,
with respect to the Securities of such series, provided
that,
(1) such direction shall not be in
conflict with any rule of law or with this
Indenture, and
(2) the Trustee may take any other action
deemed proper by the Trustee which is not
inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such
series and any coupons appertaining thereto waive any
past default hereunder with respect to the Securities of
such series and its consequences, except a default,
(1) in the payment of the principal of
(or premium, if any) or any interest on any
Security of such series, or
(2) in respect of a covenant or provision
hereof which under Article Nine cannot be
modified or amended without the consent of the
Holder of each Outstanding Security of such
series affected.
Upon any such waiver, such default shall cease to
exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right
consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder
of any Security or coupon by his acceptance thereof shall
be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or
omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion
assess reasonable costs, including reasonable 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 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 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.
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 hereunder (which compensation
shall not be limited by any provision of law in
regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly
provided herein, to reimburse the Trustee or
any predecessor Trustee upon its request for
all reasonable expenses, disbursements and
advances incurred or made by the Trustee in
accordance with any provision of this Indenture
(including the compensation and the expenses
and disbursements of its agents and counsel,
except any such expense, disbursement or
advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee and any
predecessor Trustee for, and to hold it
harmless against, any loss, liability or
expense incurred without negligence or bad
faith on its part, arising out of or in
connection with the acceptance or
administration of the trust or trusts
hereunder, including the costs and expenses of
defending itself against any claim or liability
in connection with the exercise or performance
of any of its powers or duties hereunder.
SECTION 6.6 Resignation and Removal; 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
(3) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of
its property shall be appointed or any public
officer shall take charge or control of the
Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all
Securities, or (ii) subject to Section 5.14 any Holder of
a Security who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all
others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(d) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of
that or those series (it being understood that any such
successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect
to the Securities of any particular series) and shall
comply with the applicable requirements of Section 6.11.
If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any
series shall be appointed by Act of the Holders of a
majority in principal amount of Outstanding Securities of
such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section
6.11, become the successor Trustee with respect to the
Securities of such series and to that extent supersede
the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the
Holders of Securities of that series and accepted
appointment in the manner required by Section 6.11, any
Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the
Securities of such series.
(e) The Company shall give notice of each
resignation and each removal of the Trustee with respect
to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any
series in the manner provided in Section 1.6. Each notice
shall include the name of the successor Trustee with
respect to the Securities of such series and the address
of its Corporate Trust Office.
SECTION 6.7 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a
successor Trustee with respect to all Securities every
such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of
the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights,
powers, 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 hereunder by
more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute
such Trustees as co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and
upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such
successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as
the case may be.
(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 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 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 published. If at any time an
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the
manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be
consolidated, or any corporation resulting from any
merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation
succeeding to the corporate agency or corporate trust
business of such Authenticating Agent, shall continue to
be an Authenticating Agent provided such corporation
shall be otherwise eligible under this Section, without
the execution or filing of any paper or any further act
on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may resign at any time by
giving written notice thereof to the Trustee and to the
Company. The Trustee may at any time terminate the
agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the
Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and shall
promptly give notice of such appointment to all Holders
of Securities pursuant to Section 1.6. Any successor
Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers
and duties of its predecessor hereunder with like effect
as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless
eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its
services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to
the provisions of Section 6.7.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such
series may have endorsed thereon, in addition to the
Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned
Indenture.
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
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 information
filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders of Securities (herein
referred to as "applicants") apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that
each such applicant has owned a Security for a period of
at least six months preceding the date of such
application, and such application states that the
applicants desire to communicate with other Holders of
Securities with respect to their rights under this
Indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which
such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of
such application, at its election, either
(i) afford such applicants access to the
information preserved at the time by the
Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the
approximate number of Holders of Securities
whose names and addresses appear in the
information 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 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).
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 consolidate or merge with or into the
Company or to sell, lease, transfer or otherwise dispose
of its assets substantially as an entirety to the
Company, unless:
(1) in case the Company shall consolidate
or merge with or into another Person or sell,
lease, transfer or otherwise dispose of its
assets substantially as an entirety to any
Person, the Person formed by such consolidation
or into which the Company is merged or the
Person which acquires by sale, lease, transfer
or otherwise, the assets of the Company
substantially as an entirety shall be a
corporation, partnership or trust, shall be
organized and validly existing under the laws
of the United States of America, any State
thereof or the District of Columbia and shall
expressly assume, by an indenture 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 Securities and the
performance of every covenant of this Indenture
on the part of the Company to be performed or
observed;
(2) immediately after giving effect to
such transaction and treating any indebtedness
which becomes an obligation of the Company or a
Subsidiary as a result of such transaction as
having been incurred by the Company or such
Subsidiary at the time of such transaction, no
Event of Default, and no event which, after
notice or lapse of time or both, would become
an Event of Default, shall have happened and be
continuing;
(3) if as a result of any such
consolidation or merger or such sale, lease,
transfer or other disposition of the assets of
the Company would become subject to a mortgage,
pledge, lien, security interest or other
encumbrance which would not be permitted by
this Indenture, the Company or such successor
Person, as the case may be shall take such
steps as shall be necessary effectively to
secure the Securities equally and ratably with
(or prior to) all indebtedness secured thereby;
and
(4) the Company has delivered to the
Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that such
consolidation, merger, conveyance, sale, lease,
transfer or other disposition and, if a
supplemental indenture is required in
connection with such transaction, such
supplemental indenture comply with this Article
and that all conditions precedent herein
provided for relating to such transaction have
been complied with.
SECTION 8.2 Successor Substituted.
Upon any consolidation or merger of the Company with
or into any other Person or any sale, lease, transfer or
other disposition of the assets of the Company
substantially as an entirety in accordance with Section
8.1, the successor Person formed by such consolidation or
into which the Company is merged or to which sale, lease,
transfer or other disposition is made shall assume the
obligations of the Company on the Securities and under
this Indenture with the same effect as if such successor
Person had been named as the Company herein, and
thereafter, except in the case of a lease, the
predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities and
coupons.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Holders.
Without the consent of any Holders of Securities or
coupons, the Company is then authorized by a Board
Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another
Person to the Company and the assumption by any
such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the
Company for the benefit of the Holders of all
or any series of Securities (and if such
covenants are to be for the benefit of less
than all series of Securities, stating that
such covenants are expressly being included
solely for the benefit of such series) or to
surrender any right or power herein conferred
upon the Company; or
(3) to add any additional Events of
Default; or
(4) to add to or change any of the
provisions of this Indenture to provide that
Bearer Securities may be 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 facilitate the
issuance of Securities in uncertificated form,
provided that any such action shall not
adversely affect the interests of the Holders
of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the
provisions of this Indenture, provided that any
such change or elimination shall become
effective only when there is no Security
Outstanding of any series created prior to the
execution of such supplemental indenture which
is entitled to the benefit of such provision;
or
(6) to 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
adversely affect the interests of the Holders
of Securities of any series or any related
coupons in any material respect.
SECTION 9.2 Supplemental Indentures with Consent of
Holders.
With the consent of the Holders of not less than 66-
2/3% in principal amount of the Outstanding Securities of
each series affected by such supplemental indenture, by
Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture
or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of
Securities of such series and any related coupons under
this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the
principal of, or any installment of principal
of or interest on, any Security, or reduce the
principal amount thereof or the rate of
interest thereon or any premium payable upon
the redemption thereof, or change any
obligation of the Company to pay additional
amounts pursuant to Section 10.4 (except as
contemplated by Section 8.1(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 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.
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 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 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 the Holders of any such designation or
rescission and of any change in the location of any such
other office or agency.
SECTION 10.3 Money for Securities Payments to Be Held
in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it
will, on or before each due date of the principal of and
any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the
principal and any premium or interest so becoming due
until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so
to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities it will, prior to
each due date of the principal of and any premium or
interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and
any premium or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such
Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute
and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the
provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the
payment of the principal of and any premium or
interest on Securities of that series in trust
for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons
or otherwise disposed of as herein provided;
(2) give the Trustee notice of any
default by the Company (or any other obligor
upon the Securities of that series) in the
making of any payment of principal of and any
premium or interest on the Securities of that
series; and
(3) at any time during the continuance of
any such default, upon the written request of
the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this
Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the
payment of the principal of and any premium or interest
on any Security of any series and remaining unclaimed for
two years after such principal and any premium or
interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the
Holder of such Security or any coupon appertaining
thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent
with respect to such trust money and all liability of the
Company as trustee thereof shall thereupon cease;
provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at
the expense of the Company cause to be published once, in
an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that after a date
specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the
Company.
SECTION 10.4 Additional Amounts.
If the Securities of a series provide for the
payment of additional amounts, the Company will pay to
the Holder of any Security of such series or any coupon
appertaining thereto additional amounts as provided
therein. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of or any
premium or interest on, or in respect of any Security of
any series or payment of any related coupon or the net
proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include
mention of the payment of additional amounts provided for
in this Section to the extent that, in such context
additional amounts are, were or would be payable in
respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall
not be construed as excluding additional amounts in those
provisions hereof where such express mention is not made.
If the Securities of a series provide for the
payment of additional amounts, at least 10 days prior to
the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day
on which a payment of principal and any premium is made),
and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been
any change with respect to the matters set forth in the
below-mentioned Officers' Certificate, the Company 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 payment of
principal of and any premium or interest on the
Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are
United States Aliens without withholding for or on
account of any tax assessment or other governmental
charge described in the Securities of that series. If
any such withholding shall be required, then such
Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments
to such Holders of Securities or coupons and the Company
will pay to the Trustee or such Paying Agent the
additional amounts required by this Section. The Company
covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss
liability or expense reasonably incurred without
negligence or willful misconduct on their part arising
out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
SECTION 10.5 Existence.
Subject to Article VIII, the Company will do or
cause to be done all things necessary to preserve and
keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided,
however, that the Company shall not be required to
preserve any such right or franchise if the Board of
Directors shall determine that the preservation thereof
is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.6 Purchase of Securities by Company or
Subsidiary.
If and so long as the Securities of a series are
listed on The Stock Exchange of the United Kingdom and
the Republic of Ireland and such stock exchange shall so
require, the Company will not, and will not permit any of
its Subsidiaries to, purchase any Securities of that
series by private treaty at a price (exclusive of
expenses and accrued interest) which exceeds 120% of the
mean of the nominal quotations of the Securities of that
series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
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 default, 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 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.
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
Redemption 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
applicable, that interest thereon will cease to
accrue on and after said date;
(5) the place or places where such
Securities, together in the case of Bearer
Securities with all coupons appertaining
thereto, if any maturing after the Redemption
Date, are to be surrendered for payment of the
Redemption Price; 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 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 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 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
unredeemed portion of the principal of the Security so
surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.1 Applicability of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by
Section 3.1 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is
herein referred to as a "mandatory sinking fund payment",
and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein
referred to as an "optional sinking fund payment". If
provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 12.2. Each
sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms
of Securities of such series.
SECTION 12.2 Satisfaction of Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities
of a series (other than any previously called for
redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons
appertaining thereto, and (2) may apply as a credit
Securities of a series which have been redeemed either at
the election of the Company pursuant to the terms of such
Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of
such Securities, in each case in satisfaction of all or
any part of any sinking fund payment with respect to the
Securities of such series required to be made pursuant to
the terms of such Securities, as provided for by the
terms of such series; provided that such Securities have
not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at
the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the
amount of such sinking fund payment shall be reduced
accordingly.
Any resolution passed or decision taken at any
meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related
coupons, whether or not present or represented at the
meeting.
SECTION 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund
payment date for any series of Securities, the Company
will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund
payment for that series pursuant to the terms of that
series, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.2 and
will also deliver to the Trustee any Securities to be so
delivered. Not less than 45 days before each such
sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 11.3 and cause
notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner
provided in Section 11.4. Such notice having been duly
given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 11.6
and 11.7.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 Purposes for Which Meetings May be Called.
If Securities of a series are issuable as Bearer
Securities, a meeting of Holders of Securities of such
series may be called at any time and from time to time
pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice,
consent, waiver or other action provided by this
Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 13.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose
specified in Section 13.1, to be held at such time and at
such place in The City of New York, or in London as the
Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the
time and the place of such meeting and in general terms
the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 1.6, not less
than 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 specified,
as the case may be, may determine the time and the place
in The City of New York or in London for such meeting and
may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
SECTION 13.3 Persons Entitled to Vote at Meetings.
Upon the calling of a meeting of Holders with
respect to the Securities of a series all or part of
which are represented by a Book-Entry Security, a record
date shall be established for determining Holders of
Outstanding Securities of such series entitled to vote at
such meeting, which record date shall be the close of
business on the day the notice of the meeting of Holders
is given in accordance with Section 13.2. The Holders on
such record date, and their designated proxies, and only
such Persons, shall be entitled to vote at any meeting of
Holders. To be entitled to vote at any meeting of
Holders a Person shall (a) be a Holder of one or more
Securities or (b) be a Person appointed by an instrument
in writing as proxy by a Holder of one or more
Securities; provided, however, that in the case of any
meeting of Holders with respect to the Securities of a
series all or part of which are represented by a Book-
Entry Security, only Holders, or their designated
proxies, of record on the record date established
pursuant to Section 13.3 hereof shall be entitled to vote
at such meeting. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders shall
be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its
counsel.
SECTION 13.4 Quorum; Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of
Securities of such series; provided, however, that if any
action is to be taken at such meeting with respect to a
consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than 66-2/3% in
principal amount of the Outstanding Securities of a
series, the Persons entitled to vote 66-2/3% in principal
amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within
30 minutes of the time appointed for any such meeting,
the meeting shall, if convened at the request of Holders
of Securities of such series, be dissolved. In any other
case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such
adjourned meeting may be 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 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 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 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.
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.
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. 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
in such series in accordance with Section 3.1.
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.
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, accompanied by written notice to the
Company that the Holder elects to convert such Security
or a specified portion thereof. Such notice shall also
state, if different from the name and address of such
Holder, the name or names (with address) in which the
certificate or 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 satisfactory to the Company and the Trustee duly
executed by the registered Holder or its attorney duly
authorized in writing; and Securities so surrendered for
conversion during the period from the close of business
on any Regular Record Date to the opening of business on
the next 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 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 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 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 conversion agent other than the Trustee.
SECTION 15.5 Notice of Certain Corporate Actions.
In case:
(a) the Company shall declare a
dividend (or any other distribution) on its
Common Stock payable 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
(d) of the voluntary or involuntary
dissolution, liquidation or winding up of the
Company;
then the Company shall cause to be filed with the
Trustee, and shall cause to be mailed to all Holders at
their last addresses as they shall appear in the
Securities Register, at least 20 days (or 10 days in any
case specified in clause (a) or (b) above) prior to the
applicable record date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for
the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken,
the date as of which the holders of Common Stock of
record to be entitled to such dividend, distribution,
rights, options or warrants are to be determined, or (ii)
the date on which such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or
winding up is expected to become effective, and the date
as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation,
merger, share exchange, sale, dissolution, liquidation or
winding up. If at any time the Trustee shall not be the
conversion agent, a copy of such notice shall also
forthwith be filed by the Company with the Trustee.
SECTION 15.6 Reservation of Shares of Common Stock.
The Company shall at all times 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.
The Company covenants that all shares of its
Common Stock which may be issued upon conversion of
Securities will upon issue in accordance with the terms
hereof be duly and validly issued and fully paid and
nonassessable.
SECTION 15.9 Effect of Consolidation or Merger on
Conversion Privilege.
In case of any consolidation of the Company
with, or merger of the Company into or with any other
Person, or in case of any sale of all or substantially
all of the assets of the Company, the Company or the
Person formed by such consolidation or the Person into
which the Company shall have been merged or the Person
which shall have acquired such assets, as the case may
be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each
Security then outstanding of any series that is
convertible into Common Stock of the Company shall have
the right, which right shall be the exclusive conversion
right thereafter available to said Holder (until the
expiration of the conversion right of such Security), to
convert such Security into the kind and amount of shares
of stock or other securities or property (including cash)
receivable upon such consolidation, merger or sale by a
holder of the number of shares of Common Stock of the
Company into which such Security might have been
converted immediately prior to such consolidation, merger
or sale, subject to compliance with the other provisions
of this Indenture, such Security and such supplemental
indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in such
Security. The above provisions of this Section shall
similarly apply to successive consolidations, mergers or
sales. It is expressly agreed and understood that
anything in this Indenture to the contrary
notwithstanding, if, pursuant to such merger,
consolidation or sale, holders of outstanding shares of
Common Stock of the Company do not receive shares of
common stock of the surviving corporation but receive
other securities, cash or other property or any
combination thereof, Holders of Securities shall not have
the right to thereafter convert their Securities into
common stock of the surviving corporation or the
corporation which shall have acquired such assets, but
rather, shall have the right upon such conversion to
receive the other securities, cash or other property
receivable by a holder of the number of shares of Common
Stock of the Company into which the Securities held by
such holder might have been converted immediately prior
to such consolidation, merger or sale, all as more fully
provided in the first sentence of this Section 15.9.
Anything in this Section 15.9 to the contrary
notwithstanding, the provisions of this Section 15.9
shall not apply to a merger or 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 corporation and (ii) the
outstanding shares of Common Stock of the Company are not
changed or converted into any other securities or
property (including cash) or changed in number or
character or reclassified pursuant to the terms of such
merger or consolidation.
As evidence of the kind and amount of shares of
stock or other securities or property (including cash)
into which Securities may properly be convertible after
any such consolidation, merger or sale, or as to the
appropriate adjustments of the conversion prices
applicable with respect thereto, the Trustee shall be
furnished with and may accept the certificate or opinion
of an independent certified public accountant with
respect thereto; and, in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely
thereon, and shall not be responsible or accountable to
any Holder of Securities for any provision in conformity
therewith or approved by such independent certified
accountant which may be contained in said supplemental
indenture.
SECTION 15.10 Duties of Trustee Regarding Conversion.
Neither the Trustee nor any conversion agent
shall at any time be under any duty or responsibility to
any Holder of Securities of any series that is
convertible into Common Stock of the Company to determine
whether any facts exist which may require any adjustment
of the conversion price, or with respect to the nature or
extent of any such adjustment when made, or with respect
to the method employed, whether herein or in any
supplemental indenture, any resolutions of the Board of
Directors or written instrument executed by one or more
officers of the Company provided to be employed in making
the same. Neither the Trustee nor any conversion agent
shall be accountable with respect to the validity or
value (or the kind or amount) of any shares of Common
Stock of the Company, or of any securities or property,
which may at any time be issued or delivered upon the
conversion of any Securities and neither the Trustee nor
any conversion agent makes any representation with
respect thereto. Neither the Trustee nor any conversion
agent shall be responsible for any failure of the Company
to issue, transfer or deliver any shares of its Common
Stock or stock certificates or other securities or
property upon the surrender of any Security for the
purpose of conversion or to comply with any of the
covenants of the Company contained in this Article
Fifteen or in the applicable supplemental indenture,
resolutions of the Board of Directors or written
instrument executed by one or more duly authorized
officers of the Company.
SECTION 15.11 Repayment of Certain Funds Upon
Conversion.
Any funds which at any time shall have been
deposited by the Company or on its behalf with the
Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and
interest, if any, on any of the Securities (including
funds deposited for the sinking fund referred to in
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 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 distribution 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 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
deducted 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 receives
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 acquires 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 Indebtedness,
before the Holders of the Securities are entitled to
receive any payment (including any payment which may be
payable by reason of the payment of any other
indebtedness of the Company being subordinated to the
payment 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
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 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 resulted 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 payment 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 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 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 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 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 his or her
acceptance thereof authorizes and directs the Trustee on
his or her 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 his or her 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 otherwise 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; 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 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 Indebtedness, 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
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 covenant
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 unconditional, of the
Holder of any Security to convert such Security in
accordance 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.
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 /S/ E. WILLIAM BOEHMLER
E. William Boehmler
Vice Pesident & Treasurer
[Seal]
Attest:
/S/ SYVERT NERHEIM
Assistant Secretary
THE CHASE MANHATTAN BANK, N.A.
By /S/ J. D. HEANEY
Vice President
[Seal]
Attest:
/S/ S. WILTSHIRE
Assistant Secretary
STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the 1st day of April, 1994, before me personally
came E. William Boehmler, to me known, who, being by me
duly sworn, did depose and say that he is Vice President
& Treasurer 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.
/S/S BETSY A. BYRNES
[Seal] Notary Public, State of New York
Qualified in New York County
Certificate Filed in Westchester
County
Commission Expires March 11,
1995
STATE OF NEW YORK )
) ss.:
COUNTY OF KINGS )
On the 27th day of April, 1994, before me personally
came J. D. Henry, to me known, who, being by me duly
sworn, did depose and say that he is Vice President 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.
/S/ MARGARET M. PRICE
[Seal] Notary Public, State of New York
Qualified in Kings County
Commission Expires April 25,
1995
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
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 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, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present therein, or having or having had
a permanent establishment therein, or (ii) such
Holders' present or former status as a personal
holding company, a foreign personal holding company,
a controlled foreign corporation for United States
tax purposes or a corporation which accumulates
earnings to avoid United States federal income tax;
(b) any tax, assessment or other governmental
charge imposed on interest received by a Person
holding, actually or constructively, 10% or more of
the total combined voting power of all classes of
stock of the Company entitled to vote;
(c) any tax, assessment or other governmental
charge which would not have been imposed but for the
failure to comply with any certification,
identification or other reporting requirements
concerning the nationality, residence, identity or
connection with the United States of the Holder or
beneficial owner of this Security, if compliance is
required by the statute or by regulation of the
United States Treasury Department as a precondition
to exemption from such tax, assessment or other
governmental charge;
(d) any estate, inheritance, gift, sales,
transfer, personal property or any similar tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental
charge which is payable otherwise than by deduction
or withholding from payments of principal of [(and
premium, if any)] or interest on this Security; or
(f) any tax, assessment or other governmental
charge which would not have been so imposed but for
the presentation by the Holder of this Security for
payment on a date more than 15 days after the date
on which such payment became due and payable or the
date on which payment thereof is duly provided for,
whichever occurs later;
nor will additional amounts be paid with respect to any
payment of principal of [(and premium, if any)] or
interest on this Security to any United States Alien who
is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a
beneficiary or 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.
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 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,
Redemption Redemption
Year Price Year Price
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 Redemption
Date will be payable to the Holder of this Security, or
one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable, insert--The Securities of this
series are subject to redemption (1) on __________ in any
year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below,
and (2) at any time [on or after _________, 19__], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below:
If redeemed during the 12-month period beginning
____________________ of the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to __% of the
principal amount. [If applicable, insert--and (3) under
the circumstances described in the next [two] succeeding
paragraph[s] at a Redemption Price equal to 100% of the
principal amount,] together in the case of any such
redemption (whether through operation of the sinking fund
or otherwise) with accrued interest to the Redemption
Date; provided, however, that 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 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 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
* Generally this provision will only be applicable if
the Securities of the series bear interest at a
fixed rate.
payment made by the Company or any one of its Paying
Agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial
owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying that the beneficial
owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b)
__________________that payment by such custodian, nominee
or other agent of such beneficial owner is not otherwise
subject to any such requirement), the Company at its
election will either (x) redeem the Securities of this
series, as a whole but not in part, at a Redemption Price
equal to 100% of their principal amount, together with
interest accrued to the date fixed for redemption, or (y)
if and so long as any such certification, identification
or other information reporting requirement would be fully
satisfied by payment of a backup withholding tax or
similar charge, pay to the Holders of Bearer Securities
who are United States Aliens certain additional amounts
specified in the Bearer Securities of this series. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay to the
Holders of Bearer Securities who are United States Aliens
the additional amounts specified in the Bearer Securities
of this series and (if applicable) the last date by which
the redemption of the Securities must take place. If the
Company elects to redeem the Securities, such redemption
shall take place on such date, not later than one year
after publication of the Determination Notice, as the
Company elects by notice to the Trustee at least 75 days
before such date, unless shorter notice is acceptable to
the Trustee. Notwithstanding the foregoing, the Company
will not so redeem the Securities if the Company, based
upon an opinion of independent counsel, subsequently
determines, not less than 30 days prior to the date fixed
for redemption, that subsequent payments would not be
subject to any such requirement, in which case the
Company will notify the Trustee, which will promptly give
notice of that determination in the manner provided
below, and any earlier redemption notice will thereupon
be revoked and of no further effect. If the Company
elects as provided in clause (y) above to pay such
additional amounts to the Holders of Bearer Securities
who are United States Aliens, and as long as the Company
is obligated to pay such additional amounts to such
Holders, the Company may subsequently redeem the
Securities, at any time, as a whole but not in part, at a
Redemption Price equal to 100% of their principal amount,
together with interest accrued to the date fixed for
redemption, but without reduction for applicable United
States withholding taxes.]
[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 respect to this Security or portion
hereof, as the case may be, so called for redemption at
the close of business on the date fixed for redemption as
provided in the Indenture unless the Company defaults in
making the payment due upon redemption), to convert the
principal amount of this Security (or any portion hereof
which is [insert minimum denomination] or an integral
multiple thereof), into fully paid and non-assessable
shares (calculated as to each conversion to the nearest
1/100th of a share) of the Common Stock of the Company,
as said shares shall be constituted at the date of
conversion, at the conversion price of $_____ principal
amount of Securities for each share of Common Stock, or
at the adjusted conversion price in effect at the date of
conversion determined as provided in the Indenture, upon
surrender of this Security, together with the conversion
notice hereon duly executed, to the Company at the
designated office or agency of the Company in _______,
accompanied (if so required by the Company) by
instruments of transfer, in form satisfactory to the
Company and to the Trustee, duly executed by the Holder
or by its duly authorized attorney in writing. Such
surrender shall, if made during any period beginning at
the close of business on a Regular Record Date and ending
at the opening of business on the Interest Payment Date
next following such Regular Record Date (unless this
Security or the portion being converted shall have been
called for redemption on a Redemption Date during such
period), also be accompanied by payment in funds
acceptable to the Company of an amount equal to the
interest payable on such Interest Payment Date on the
principal amount of this Security then being converted.
Subject to the aforesaid requirement of repayment and, in
the case of a conversion after the Regular Record Date
next preceding any Interest Payment Date and on or before
such Interest Payment Date, to the right of the Holder of
this Security (or any Predecessor Security) of record at
such Regular Record Date to receive an installment of
interest (with certain exceptions provided in the
Indenture), no adjustment is to be made of conversion for
interest accrued hereon for dividends on shares of Common
Stock issued on conversion. The Company is not required
to issue fractional shares upon any such conversion, but
shall make adjustment therefor in cash on the basis of
the current market value of such fractional interest as
provided in the Indenture. The conversion price is
subject to adjustment as provided in the Indenture. In
addition, the Indenture provides that in case of certain
consolidations or mergers to which the Company is a party
or the sale of substantially all of the assets of the
Company, the Indenture shall be amended, without the
consent of any Holders of Securities, so that this
Security, if then outstanding, will be convertible
thereafter, or during the period this Security shall be
convertible as specified above, only into the kind and
amount of securities, cash and other property receivable
upon the consolidation, merger or sale by a holder of the
number of shares of Common Stock into which this Security
might have been converted immediately prior to such
consolidation, merger or sale (assuming such holder of
Common Stock failed to exercise any rights or election
and received per share the kind and amount received per
share by a plurality of non-electing shares) [, assuming
if such consolidation, merger or sale is prior to
________, 199_, that this Security was convertible at the
time of such consolidation, merger or sale at the initial
conversion price specified above as adjusted from
__________, 199_, to such time pursuant to the
Indenture]. In the event of conversion of this Security
in part only, a new Security or Securities for the
unconverted portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.]
[If the Security is convertible into other
securities of the Company, specify the conversion
features.]
[The Indenture contains provisions for defeasance of
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 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
surrender of this Security for registration of transfer
at the office or agency of the Company in [any place
where the principal of [(and premium, if any)] and
interest on this Security are payable] [The City of New
York, or, subject to any laws or regulations applicable
thereto and to the right of the Company (limited as
provided in the Indenture) to rescind the designation of
any such transfer agent, at the [main] offices of ____
in _____ and _____ in _____ or at such other offices or
agencies as the Company may designate], duly endorsed by,
or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or
more new [if the Securities of the series are also
issuable as Bearer Securities, insert--Registered]
Securities of this series and of like tenor, of
authorized denominations and for the same aggregate
principal amount, will be issued to the designated
transferee or transferees.
[If the Securities of the series are not also
issuable as Bearer Securities, insert--The Securities of
this series are issuable only in registered form, without
coupons, in denominations of $__________ and any integral
multiple thereof. As provided in the Indenture and
subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series
and of like tenor of a different authorized denomination,
as requested by the Holder surrendering the same.]
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
[If the Securities of the Series are also issuable
as Bearer Securities, insert--The Indenture, the
Securities and any coupons appertaining thereto shall be
governed by and construed in accordance with the laws of
the State of New York.]
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby
irrevocably instructs the Company to redeem this Security
in accordance with the terms of the Indenture referred to
in this Security.
The instruction being given in exercise of the
Holder's option to require redemption of this Security to
the extent provided in such Indenture upon a Change in
Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this
Security is submitted for
redemption, please indicate:
1. Principal Amount
submitted for
redemption:
U.S.$_________________
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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED
STATES INTERNAL REVENUE CODE, THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT ON THIS SECURITY IS ____% OF ITS PRINCIPAL
AMOUNT, THE ISSUE DATE IS ___________, 19__ [,--AND] THE
YIELD TO MATURITY IS ____% [, THE METHOD USED TO
DETERMINE THE YIELD IS ___________].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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.
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 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 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, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present therein, or having or having had
a permanent establishment therein, or (ii) such
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;
(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 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 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.]$______]. [If
Securities of the series are issuable as Bearer
Securities, insert--The Securities of this series are
issuable as Bearer Securities [, with interest coupons
attached,] in the denomination of U.S.$__________, 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 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,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ____% of
the principal amount,] [If applicable, insert--[and
(____)] under the circumstances described in the next
[two] succeeding paragraph[s] at a Redemption Price equal
to [Insert formula for determining the amount]] [If the
Security is interest-bearing, insert--, together in the
case of any such redemption [If applicable, insert--
(whether through operation of the sinking fund or
otherwise)] with accrued interest to the Redemption Date;
provided, however, that installments of interest on this
Security whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this
Security, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture].
[If applicable, insert--The Securities of this
series are subject to redemption (1) on __________ in any
year commencing with the year ____ and ending with the
year ____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below,
and (2) at any time [on or after ___________________,
19__], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund
(expressed as percentages of the principal amount) set
forth in the table below: If redeemed during the 12-
month period beginning ____________________ of the years
indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to ____% of
the principal amount. [If applicable, insert--and (3)
under the circumstances described in the next [two]
succeeding paragraph[s] at a Redemption Price equal to
[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 on the last day of such Exercise Period, this
Security [If Securities of the series are also issuable
as Bearer Securities, insert--together with all coupons
maturing after the Redemption Date,] accompanied by
written notice to the Company (which shall be
substantially in the form of the [appropriate] form of
notice hereon) that the Holder hereof instructs the
Company to redeem this Security. [If Securities of the
series are also issuable as Bearer Securities, insert--
The Holder of this Security may elect to submit for
redemption by the Company such Security as a whole but
not in part.] Such notice duly received shall be
irrevocable.
[If Securities of the series are to be offered to
United States Aliens, insert--The Securities of this
series may be redeemed, as a whole but not in part, at
the option of the Company, determined as set forth in the
preceding paragraph [If the Security interest-bearing,
insert--, together with interest accrued to the date
fixed for redemption,] if, as a result of any amendment
to, or change in, the laws or regulations of the United
States or any political subdivision or taxing authority
thereof or therein affecting taxation, or any amendment
to or change in an official interpretation or application
of such laws or regulations, which amendment or change is
effective on or after ___________, 19__, the Company will
become obligated to pay additional amounts (as described
on the face hereof) [If the Security is interest-bearing,
insert--on the next succeeding Interest Payment Date] [If
the Security is not to bear interest prior to Maturity,
insert--at Maturity or upon the sale or exchange of any
Security] and such obligation cannot be avoided by the
use of reasonable measures available to the Company;
provided, however, that (a) no such notice of redemption
may be given earlier than 90 days prior to the earliest
date on which the Company would be 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 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,
* 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.
nominee or other agent certifying that the beneficial
owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement),
the Company at its election will either (x) redeem the
Securities of this series, as a whole but not in part, at
a Redemption Price determined as set forth in the next
preceding paragraph, together with interest accrued to
the date fixed for redemption, or (y) if and so long as
any such certification, identification or other
information reporting requirement would be fully
satisfied by payment of a backup withholding tax or
similar charge, pay to the Holders of Bearer Securities
who are United States Aliens certain additional amounts
specified in the Bearer Securities of this series. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee 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
* This provision will only be applicable if the
Securities of the series are not to bear interest
prior to Maturity.
United States by the Company or any of its Paying Agents
of the full amount due with respect to any Bearer
Security would, under any present or future laws or
regulations of the United States, be subject to any
certification, identification or other reporting
requirement of any kind, the effect of which requirement
is the disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Security
who is a United States Alien (as defined on the face
hereof) (other than such 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 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 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 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, 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 such Holder and upon all future Holders of
this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
As set forth in, and subject to, the provisions of
the Indenture, no Holder of any Security of this series
will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the
Trustee written notice of a continuing Event of Default
with respect to this series, the Holders of not less than
25% in principal amount of the Outstanding Securities of
this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such
proceeding as trustee, and the Trustee shall not have
received from the Holders of a majority in principal
amount of the Outstanding Securities of this series a
direction inconsistent with such request and shall have
failed to institute such proceeding within 60 days;
provided, however, that such limitations do not apply to
a suit instituted by the Holder hereof for the
enforcement of payment of the principal of [(and premium,
if any)] or [any] interest on this Security on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall
alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of [(and
premium, if any)] and [any] interest [(including
additional amounts, as described on the face hereof)] on
this Security at the times, place[s] and rate, and in the
coin or currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this
Security is 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 $______ and any integral multiple
thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this
series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of
a different authorized denomination, as requested by the
Holder surrendering the same.]
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
[If the Securities of the series are also issuable
as Bearer Securities, insert--The Indenture, the
Securities and any coupons appertaining thereto shall be
governed by and construed in accordance with the laws of
the State of New York.]
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby
irrevocably instructs the Company to redeem this Security
in accordance with the terms of the Indenture referred to
in this Security.
The instruction being given in exercise of the
Holder's option to require redemption of this Security to
the extent provided in such Indenture upon a Change in
Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this
Security is submitted for
redemption, please indicate:
__1. Principal Amount
submitted for
redemption:
U.S.$_________________
__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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY AND
FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL
BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME
TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS
165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
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 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 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.
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 foregoing obligation to pay additional
amounts will not apply to any one or more of the
following:
(a) any tax, assessment or other governmental
charge which would not have been so imposed but for
(i) the existence of any present or former
connection between such Holder (or between a
fiduciary, settlor, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present 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, assessment or other governmental
charge;
(d) any estate, inheritance, gift, sales,
transfer, personal property or any similar tax,
assessment or other governmental charge;
(e) any tax, assessment or other governmental
charge which is payable otherwise than by deduction
or withholding from payments of principal of [(and
premium, if any)] or interest on this Security; or
(f) any tax, assessment or other governmental
charge which would not have been so imposed but for
the presentation by the Holder of this Security or
any coupon appertaining hereto for payment on a date
more than 15 days after the date on which such
payment became due and payable or the date on which
payment thereof is duly provided for, whichever
occurs later;
nor will additional amounts be paid with respect to any
payment of principal of [(and premium, if any) or
interest on this Security to any United States Alien who
is a fiduciary or partnership or other than the sole
beneficial owner of any such payment to the extent that a
beneficiary or 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 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:
________________________
[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 the election of the
Company, at the following Redemption Prices (expressed as
percentages of the principal amount), if redeemed [on or
before ____,__%, and if redeemed] during the 12-month
period beginning _____ of the years indicated
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to ___% of the
principal amount,] [and ( )] under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to 100% of the principal amount,]
together in the case of any such redemption [If
applicable, insert - (whether through operation of the
sinking fund or otherwise)] with accrued interest to the
Redemption Date; provided, however, that interest
installments on this Security whose Stated Maturity is on
or prior to such Redemption Date will be payable only
upon presentation and surrender of coupons for such
interest (at an office or agency located outside the
United States, except as herein provided otherwise).]
[If applicable, insert - The Securities of this
series are subject to redemption (1) on ______ in any
year commencing with the year and ending with the year
____ through operation of the sinking fund for this
series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below,
and (2) at any time [on or after ________ 19__], as a
whole or in part, at the election of the Company, at the
Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, if
redeemed during the 12-month period beginning _____ of
the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to _____% of
the principal amount, and (3) under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to 100% of the principal amount,
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 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
measures available to the Company; provided, however,
that (a) no such notice of redemption may be given
earlier than 90 days prior to the earliest date on which
the Company would be obligated to pay such additional
amounts were a payment in respect of the Securities of
this series then due, and (b) at the time notice of such
redemption is given, such obligation to pay such
additional amounts remains in effect. Immediately prior
to the publication of any notice of redemption pursuant
to this paragraph, the Company shall deliver to the
Trustee a certificate stating that the Company is
entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent
to the right of the Company so to redeem have occurred.
[If applicable*, insert - In addition, if the
Company determines, based upon a written opinion of
independent counsel, that any payment made outside the
United States by the Company or any of its Paying Agents
of the full amount of principal [, premium, if any,] or
interest due with respect to any Bearer Security or
coupon would, under any present or future laws or
regulations of the United States, be subject to any
certification, identification or other information
reporting requirement of any kind, the effect of which
requirement is the disclosure to the Company, any Paying
Agent or any governmental authority of the nationality,
residence or identity of a beneficial owner of such
Bearer Security or coupon who is a United States Alien
(as defined on the face hereof) (other than such a
requirement (a) which would not be applicable to a
payment made by the Company or any of its Paying Agents
(i) directly to the beneficial owner or (ii) to any
custodian, nominee or other agent of the beneficial
owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying that the beneficial
owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial
owner is not otherwise subject to any such requirement),
the Company at its election will either (x) redeem the
Securities, as a whole but not in part, at a Redemption
Price equal to 100% of their principal amount, together
with interest accrued to the date fixed for redemption,
or (y) if and so long as the conditions of the fifth
paragraph on the face of this Security are satisfied, pay
the additional amounts specified in such paragraph. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay the
additional amounts specified in such paragraph and (if
applicable) the last date by which the redemption of the
Securities must take place. If the Company elects to
redeem the Securities, such redemption shall take place
on such date, not later than one year after publication
of the Determination Notice, as the Company elects by
notice to the Trustee at least 75 days before such date,
unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so
redeem the Securities if the Company, based upon an
opinion of independent counsel, subsequently determines,
not less than 30 days prior the date fixed for
redemption, that subsequent payments would not be subject
to any such requirement, in which case the Company will
notify the Trustee, which will promptly give notice of
that determination in the manner provided below, and any
earlier redemption notice will thereupon be revoked and
* Generally this provision will only be applicable if
the Securities of the series bear interest at a
fixed rate.
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]
[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 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
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 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 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 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 registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may
treat the Person in whose in whose name such Security is
registered,] as the owner thereof for 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.
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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION
WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES
INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTIONS 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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
[Reverse of Coupon]
*
______________________________
______________________________
______________________________
______________________________
______________________________
* Insert names and addresses of initial Paying Agents
located outside the United States.
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 payment of such interest shall be legally
enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal
has been made or duly provided for. Interest on any
overdue principal shall be payable on demand. Any such
interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum
(to the extent that the payment of such interest shall be
legally enforceable), which shall accrue from the date of
such demand for payment to the date payment of such
interest has been made or duly provided for, and such
interest shall also be payable on demand.] Such payments
[(including premium, if any)] shall be made, subject to
any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the
Indenture) to rescind the designation of any such 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
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) 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.
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, beneficiary or member of such
Holder, if such Holder is an estate, a trust or a
partnership) and the United States, including,
without limitation, such Holder (or such fiduciary,
settlor, beneficiary or member) being or having been
a citizen or resident or treated as a resident
thereof, or being or having been engaged in trade or
business or present therein, or having or having had
a permanent establishment therein, or (ii) such
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;
(e) any tax, assessment or other governmental
charge which is payable otherwise than by deduction
or withholding from payments of [If the Security is
interest-bearing, insert--principal of [(and
premium, if any)] or interest on this Security] [If
the Security is not to bear interest prior to
Maturity, insert--principal of (or interest on
overdue principal, if any, on) this Security or from
payments from the proceeds of a sale or exchange of
this Security]; or
(f) any tax, assessment or other governmental
charge which would not have been so imposed but for
the presentation by the Holder of this Security [If
the Security is interest-bearing, insert--or any
coupon appertaining hereto] for payment on a date
more than 15 days after the date on which such
payment became due and payable or the date on which
payment thereof is duly provided for, whichever
occurs later;
nor will additional amounts be paid with respect to any
payment of [If the Security is interest-bearing, insert--
principal of [(and premium, if any)] or interest on this
Security] [If the Security is not to bear interest prior
to Maturity, insert--principal of (or interest on overdue
principal, if any, on) this Security or of the proceeds
of any sale or exchange of this Security] to any United
States Alien who is a fiduciary or partnership or other
than the sole beneficial owner of any such payment to the
extent that a beneficiary or settlor with respect to such
fiduciary, a member of such a partnership or the
beneficial owner would not have been entitled to the
additional amount had such beneficiary, settlor, member
or beneficial owner been the Holder of this Security [If
the Security is interest-bearing, insert--or any coupon
appertaining hereto]. The term "United States Alien"
means any Person who, for United States federal income
tax purposes, is a foreign corporation, a non-resident
alien individual, a non-resident alien fiduciary of a
foreign estate or trust, or a Foreign partnership of one
or more of the members of which is, for United States
federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust, and the term
"United States" means the United States of America
(including the States and the District of Columbia), its
territories, its possessions and other areas subject to
its jurisdiction.
[Notwithstanding the foregoing, if and so long as a
certification, identification or other reporting
requirement referred to in the [fourth] [fifth] paragraph
on the reverse hereof would be fully satisfied by payment
of a backup withholding tax or similar 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
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 and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and any
coupons appertaining thereto and of the terms upon which
the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated
on the face hereof [, limited in aggregate principal
amount to U.S.$ ]. The Securities of this series
are issuable as Bearer Securities, with interest coupons
attached, in the denomination of U.S.$ [, and as
Registered Securities, without coupons, in denominations
of U.S.$ and any integral multiple thereof]. [As
provided in the Indenture and subject to certain
limitations therein set forth, Bearer Securities and
Registered Securities of this series are exchangeable for
a like aggregate principal amount of Registered
Securities of this series and of like tenor of any
authorized denominations, as requested by the Holder
surrendering the same, upon surrender of the Security or
Securities to be exchanged, with all unmatured coupons
and all matured coupons in default thereto appertaining,
at any office or agency described below where Registered
Securities of this series may be presented for
registration of transfer; provided, however, that Bearer
Securities 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
redeemed] during the 12-month period beginning
of the years indicated,
Redemption Redemption
Year Price Year Price
and thereafter at a Redemption Price equal to % of the
principal amount,] [and ( )] under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to [Insert formula for determining
the amount] [If the Security is interest-bearing, insert-
-, together in the case of any such redemption [If
applicable, insert--(whether through operation of the
sinking fund or otherwise)] with accrued interest to the
Redemption Date; provided, however, that interest
installments on this Security whose Stated Maturity is on
or prior to such Redemption Date will be payable only
upon presentation and surrender of coupons for such
interest (at an office or agency located outside the
United States, except as herein provided otherwise)].]
[If applicable, insert--The Securities of this
series are subject to redemption (1) on in any
year commencing with the year and ending with the
year through operation of the sinking fund for
this series at the Redemption Prices for redemption
through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the
table below, and (2) at any time [on or after , 19
], as a whole or in part, at the election of the Company,
at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the
table below: If redeemed during the 12-month period
beginning of the years indicated,
Redemption Price
for Redemption Redemption Price for
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
and thereafter at a Redemption Price equal to % of the
principal amount, and (3) under the circumstances
described in the next [two] succeeding paragraph[s] at a
Redemption Price equal to [Insert formula for determining
the amount] [If the Security is interest-bearing, insert-
-, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with
accrued interest to the Redemption Date; provided,
however, that interest installments on this Security
whose Stated Maturity is on or prior to such Redemption
Date will be payable only upon presentation and surrender
of coupons for such interest (at an office or agency
located outside the United States, except as herein
provided otherwise)].] [Notwithstanding the foregoing,
the Company may not, prior to redeem any
Securities of this series as contemplated by Clause [(2)]
above as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of
moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted
financial practice) of less than % per annum.]
Subject to and upon compliance with the provisions
of the Indenture (unless previously redeemed), this
Security, if submitted for redemption, is subject to
redemption, at the option of the Holder, on or after the
Exchange Date (upon any Change in Control of the Company
as defined in the Indenture) unless the Continuing
Directors, as defined in the Indenture, shall have
approved such Change in Control [If applicable, insert--
or the Company shall have called the Securities for
redemption at the applicable Redemption Price for
redemption at the option of the Company, in either case]
on or before the day which is ten days after such Change
in Control [If applicable, insert--(whether or not such
call occurs before or after such Change in Control)].
The 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
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 information reporting requirement
of any kind, the effect of which requirement is the
disclosure to the Company, any Paying Agent or any
governmental authority of the nationality, residence or
identity of a beneficial owner of such Bearer Security or
coupon who is a United States Alien (as defined on the
face hereof) (other than such a requirement (a) which
would not be applicable to a payment made by the Company
or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to any custodian, nominee or
other agent of the beneficial owner, or (b) which can be
satisfied by the custodian, nominee or other agent
certifying that the beneficial owner is a United States
Alien, provided in each case referred to in clauses
(a)(ii) and (b) that payment by such custodian, nominee
or other agent of such beneficial owner is not otherwise
subject to any such requirement), the Company at its
election will either (x) redeem the Securities, as a
whole but not in part, at a Redemption Price determined
as set forth in the next preceding paragraph, together
with interest accrued to the date fixed for redemption,
or (y) if and so long as the conditions of the fifth
paragraph on the face of this Security are satisfied, pay
the additional amounts specified in such paragraph. The
Company will make such determination and election and
notify the Trustee thereof as soon as practicable, and
the Trustee will promptly give notice of such
determination in the manner provided below (the
"Determination Notice"), in each case stating the
effective date of such certification, identification or
other information reporting requirement, whether the
Company will redeem the Securities or will pay the
additional amounts specified in such paragraph and (if
applicable) the last date by which the redemption of the
Securities must take place. If the Company elects to
redeem the Securities, such redemption shall take place
on such date, not later than one year after publication
of the Determination Notice, as the Company elects by
notice to the Trustee at least 75 days before such date,
unless shorter notice is acceptable to the Trustee.
Notwithstanding the foregoing, the Company will not so
redeem the Securities if the Company, based upon an
opinion of independent counsel, subsequently determines,
* 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.
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,
identification or other reporting requirement of any
kind, the effect of which requirement is the disclosure
to the Company, any Paying Agent or any governmental
authority of the nationality, residence or identity of a
beneficial owner of such Bearer Security who is a United
States Alien (as defined on the face hereof) (other than
such a requirement (a) which would not be applicable to a
payment made by the Company or any one of its Paying
Agents (i) directly to the beneficial owner or (ii) to
any custodian, nominee or other agent of the beneficial
owner, or (b) which can be satisfied by the custodian,
nominee or other agent certifying to the effect that such
beneficial owner is a United States Alien, provided in
each case referred to in clauses (a)(ii) and (b) that
payment by such custodian, nominee or other agent of such
beneficial owner is not otherwise subject to any such
requirement), the Company at its election will either (x)
permit any Holder of a Bearer Security to present such
Bearer Security for redemption within 90 days of notice
of such redemption, at a Redemption Price determined as
set forth in the next preceding paragraph, or (y) if and
so long as the conditions of the fifth paragraph on the
face of this Security are satisfied, pay the additional
amounts specified in such paragraph. The Company will
make such determination and election and notify the
Trustee thereof as soon as practicable, and the Trustee
will promptly give notice of such determination in the
manner provided below (the "Determination Notice"), in
each case stating the effective date of such
certification, identification or other reporting
requirement, whether the Company has elected to permit
redemption of the Bearer Securities or to pay the
additional amounts specified in such paragraph and (if
applicable) the last day by which the Company may publish
* This provision will only be applicable if the
Securities of the series are not to bear interest
prior to Maturity.
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 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 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
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, an amount of
principal of the Securities of this series may be
declared due and payable in the manner and with the
effect provided in the Indenture. Such amount shall be
equal to--[insert formula for determining the amount].
Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue
principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect
of the payment of the principal of and interest, in any,
on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the
modification of the rights and obligations of the Company
and the rights of the Holders of the Securities of each
series to be affected [If the Securities of the series
are interest-bearing insert--and any related coupons]
under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of 66 2/3% in
principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of
specified percentages in principal amount of the
Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series
[If the Securities of the series are interest-bearing,
insert--and any related coupons], to waive compliance by
the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon
such Holder and upon all future Holders of this Security
and any coupon appertaining hereto and any Security
issued in exchange hereof or in lieu hereof, whether or
not notation of such consent or waiver is made upon this
Security.
As set forth in, and subject to, the provisions of
the Indenture, no Holder of any Security of this series
[If the Security is interest-bearing, insert--or any
related coupon] will have any right to institute any
proceeding with respect to the Indenture or for any
remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a
continuing Event of Default with respect to this series,
the Holders of not less than 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
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
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.
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.
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. $_______
Dated:
Signature(s) must be
guaranteed by a commercial
bank or trust company or a
member firm of a national
stock exchange if shares of
Common Stock are to be
delivered, or Securities to
be issued, other than to
and in the name of the
registered owner.
Signature Guaranty
Fill in for registration of shares of Common Stock
and Security if to be issued otherwise than to the
registered holder.
Social Security or other
(Name) Taxpayer Identification
Number
(Address)
Please print Name and
Address (including zip
code number)
[The above Conversion Notice is to be modified, as
appropriate, for conversion into other securities of the
Company.]
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION
WILL BE SUBJECT TO LIMITATIONS UNDER THE UNITED STATES
INCOME TAX LAWS, INCLUDING THE LIMITATIONS PROVIDED IN
SECTION 165(J) AND 1287(A) OF THE INTERNAL REVENUE CODE
OF 1954, AS AMENDED.
______________
INTERNATIONAL PAPER COMPANY U.S.$_________
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
[Reverse of Coupon]
*
___________________________
___________________________
___________________________
___________________________
___________________________
* Insert names and addresses of initial Paying Agents
located outside the United States.
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
certificate from each person entitled to delivery of any
of the above-captioned Securities in bearer form
purchased from it; provided, however, that if the
undersigned has actual knowledge that the information
contained in such a certificate is false, (and, absent
documentary evidence that the beneficial owner of such
Security is not a United States Person, it will be deemed
to have actual knowledge that such beneficial owner,
other than a financial institution described above, is a
United States Person if it has a United States address
for such beneficial owner), the undersigned will not
deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding
the delivery of such certificate to the undersigned.
As used herein, "United States person" means any
citizen or resident of the United States, any
corporation, partnership or other entity created or
organized in or under the laws of the United States and
any estate or trust the income of which is subject to
United States Federal income taxation regardless of its
source, and "United States" means the United States of
America (including the States and the District of
Columbia), its territories and its possessions.
We undertake to advise you by telex if the above
statement as to beneficial ownership is not correct on
the date of delivery of the above-captioned Securities in
bearer form as to all of such Securities.
We understand that this certificate may be required
in connection with certain tax legislation in the United
States. If administrative or legal proceedings are
commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably
authorize you to produce this certificate or a copy to
any interested party in such proceedings.
Dated: , 19
[To be dated on or after
, 19 (the date
determined as provided in
the Indenture)]
[Name of Person Entitled to
Receive Bearer Security]
________________________
(Authorized Signatory)
Name:
Title:
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.]
By_________________________
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_________________________
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.
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:
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING
OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF CEDE & CO. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN CEDE & CO. 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 CEDE & CO. TO A NOMINEE OF CEDE &
CO. OR BY A NOMINEE OF CEDE & CO. TO CEDE & CO. OR
ANOTHER NOMINEE OF CEDE & CO.) MAY BE REGISTERED EXCEPT
IN SUCH LIMITED CIRCUMSTANCES.
INTERNATIONAL PAPER COMPANY
R-1 $150,000,000
CUSIP 460146 AQ6
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
Cede & Co. or registered assigns, the principal sum of
One Hundred Fifty Million Dollars ($150,000,000) on May
15, 2004 and to pay interest thereon from May 15, 1994 or
from the most recent Interest Payment Date to which
interest has been paid or duly provided for semi-annually
in arrears on May 15 and November 15 in each year,
commencing November 15, 1994, at the rate of 7 1/2% per
annum, until the principal hereof is paid or made
available for payment. 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 May 1 or November 1 (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 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 the The City of
New York, 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.
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: May 26, 1994
[Seal] INTERNATIONAL PAPER COMPANY
Attest:
____________________ By: _______________________
Syvert E. Nerheim Name: E. William Boehmler
Title: Vice President and
Treasurer
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
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 relating to Senior Debt
Securities, 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 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 $150,000,000.
The Securities of this series are not subject to
redemption at any time, as a whole or in part, at the
election of the Company.
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, 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 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 (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 accompanied by written notice to
the Company (which shall be substantially in the form of
the form of notice hereon) that the Holder hereof
instructs the Company to redeem this Security. Such
notice duly received shall be irrevocable.
Notice of redemption will be given by mail to
Holders of 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 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.
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 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,
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 on this Security at the
times, place 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 The City of New
York, 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 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.
The Securities of this series are issuable only in
registered form, without coupons, in denominations of
$100,000 and any integral multiple of $1,000 in excess
thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Securities of this
series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of
a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection
therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this
Security is overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the
contrary.
All terms used in this Security which are defined in
the Indenture shall have the meanings assigned to them in
the Indenture.
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby
irrevocably instructs the Company to redeem this Security
in accordance with the terms of the Indenture referred to
in this Security.
The instruction being given in exercise of the
Holder's option to require redemption of this Security to
the extent provided in such Indenture upon a Change in
Control of the Company.
Dated:________________
______________________________
Signature
If only a portion of this
Security is submitted for
redemption, please indicate:
1. Principal Amount
submitted for redemption:
U.S.$_________________
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.
<TABLE>
<CAPTION>
(Exhibit 12)
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, First First
Quarter Quarter
TITLE 1989 1990 1991 1992 1993 1993 1994
_________________________________ ______ ______ ______ ______ ______ ______ ______
<S> <C> <C> <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 $101.4 $110.5
B) Add: Fixed charges excluding
capitalized interest 250.4 336.2 380.3 325.3 365.3 85.7 89.1
C) Add: Amortization of previously
capitalized interest 8.4 8.6 9.9 9.9 12.2 2.8 3.0
D) Less: Equity in undistributed
earnings of affiliates (6.7) (9.4) (10.8) (19.1) (25.9) (7.4) (10.8)
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 $182.5 $191.8
FIXED CHARGES
F) Interest and amortization of
debt expense $228.7 $309.5 $351.1 $297.1 $334.5 $78.6 $81.4
G) Interest factor attributable
to rentals 21.7 26.7 29.2 28.2 30.8 7.1 7.7
H) Capitalized interest 10.9 26.3 36.4 42.0 12.2 5.9 2.2
I) TOTAL FIXED CHARGES $261.3 $362.5 $416.7 $367.3 $377.5 $91.6 $91.3
J) RATIO OF EARNINGS
TO FIXED CHARGES 6.34 3.53 2.44 1.42 2.26 1.99 2.10
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