<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 1, 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------------
INTERNATIONAL PAPER COMPANY
(Exact name of registrant as specified in charter)
<TABLE>
<S> <C>
NEW YORK 13-0872805
(State of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
------------------------------
INTERNATIONAL PAPER CAPITAL TRUST III
INTERNATIONAL PAPER CAPITAL TRUST IV
(Exact name of registrant as specified in charter)
<TABLE>
<S> <C>
DELAWARE APPLIED FOR
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
</TABLE>
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK 10577
(914) 397-1500
(Address and telephone number of principal executive offices)
------------------------------
JAMES W. GUEDRY, ESQ.
VICE PRESIDENT, ASSOCIATE GENERAL COUNSEL AND SECRETARY
INTERNATIONAL PAPER COMPANY
TWO MANHATTANVILLE ROAD
PURCHASE, NEW YORK 10577
(914) 397-1532
(Name, address and telephone number of agent for service)
WITH COPY TO:
VINCENT J. PISANO, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022
(212) 735-3000
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. /X/
------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
PROPOSED MAXIMUM AGGREGATE
TITLE OF EACH CLASS AMOUNT TO BE OFFERING OFFERING
OF SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER UNIT (2) PRICE (2) (3)
<S> <C> <C> <C>
Debt Securities of International Paper Company (the "Company")
(6) (7).....................................................
Preferred Stock, $1.00 par value, of the Company (6) (7)
Common Stock, $1.00 par value, of the Company (6) (7).........
Depositary Shares of the Company (7) (8)...................... (5) (5) (5)
Warrants of the Company (9)...................................
Trust Preferred Securities of International Paper Capital
Trust III and International Paper Capital Trust IV (the "IPC
Trusts") (10)...............................................
Guarantees of Trust Preferred Securities of the IPC Trusts by
the Company (11)............................................
Total $1,100,000,000(12) 100% $1,100,000,000(12)
<CAPTION>
AMOUNT OF
TITLE OF EACH CLASS REGISTRATION
OF SECURITIES TO BE REGISTERED FEE (4)
<S> <C>
Debt Securities of International Paper Company (the "Company")
(6) (7).....................................................
Preferred Stock, $1.00 par value, of the Company (6) (7)
Common Stock, $1.00 par value, of the Company (6) (7).........
Depositary Shares of the Company (7) (8)......................
Warrants of the Company (9)...................................
Trust Preferred Securities of International Paper Capital
Trust III and International Paper Capital Trust IV (the "IPC
Trusts") (10)...............................................
Guarantees of Trust Preferred Securities of the IPC Trusts by
the Company (11)............................................
Total $324,500(4)
</TABLE>
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUS
INCLUDED IN THIS REGISTRATION STATEMENT ALSO RELATES TO $2,000,000,000 OF
SECURITIES PREVIOUSLY REGISTERED UNDER THE COMPANY'S REGISTRATION STATEMENT ON
FORM S-3 (NO. 33-52945), AND $400,000,000 OF SECURITIES PREVIOUSLY REGISTERED
UNDER THE COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (NO. 33-48167). THIS
REGISTRATION STATEMENT CONSTITUTES POST-EFFECTIVE AMENDMENT NO. 1 TO THE
COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (NO. 33-52945) AND POST-EFFECTIVE
AMENDMENT NO. 2 TO THE COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (NO.
33-48167).
------------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
(FOOTNOTES FROM PREVIOUS PAGE)
- ----------------------------------
(1) In United States dollars or the equivalent thereof in any other currency,
currency unit or units, or composite currency or currencies.
(2) The proposed maximum offering price per unit will be determined from time to
time by the Registrants in connection with the issuance by the Registrants
of the securities registered hereunder.
(3) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457 under
the Securities Act.
(4) The amount of securities eligible to be sold under prior registration
statements to be carried forward to this Registration Statement is
$975,775,000. The amount of the filing fee associated with such securities
that was previously paid with the prior registration statements was
$331,217.07.
(5) Not applicable pursuant to General Instruction II.D. of Form S-3.
(6) Also includes such indeterminate amounts of Debt Securities and Preferred
Stock and indeterminate number of shares of Common Stock as may be issued
upon conversion of or exchange for any other Debt Securities or Preferred
Stock that provide for conversion or exchange into other securities or upon
exercise of Warrants for such securities.
(7) No separate consideration will be received for the Debt Securities,
Preferred Stock, Common Stock or Depositary Shares issuable upon conversion
of or in exchange for Debt Securities or Preferred Stock.
(8) Such indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event the Company
elects to offer to the public fractional interests in shares of the
Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those persons purchasing such fractional interests and the
shares of Preferred Stock will be issued to the depositary under the Deposit
Agreement. No separate consideration will be received for the Depositary
Shares.
(9) Warrants may be sold separately or with Debt Securities, Preferred Stock or
Common Stock.
(10) Subject to note (12) below, there is being registered hereunder an
indeterminate amount and number of Trust Preferred Securities of the IPC
Trusts (the "Trust Preferred Securities") as may be sold from time to time.
(11) No separate consideration will be received for the Guarantees of the Trust
Preferred Securities (the "Guarantees"). The Guarantees include the rights
of holders of Trust Preferred Securities under the Guarantees and certain
back-up undertakings, as described in the Registration Statement.
(12) In no event will the aggregate offering price of all securities issued from
time to time pursuant to this Registration Statement exceed $1,100,000,000
or the equivalent thereof in one or more foreign currencies, foreign
currency units or composite currencies. The aggregate amount of Common Stock
of the Company registered hereunder is further limited to that which is
permissible under Rule 415(a)(4) under the Securities Act. The securities
registered hereunder may be sold separately or as units with other
securities registered hereunder.
ii
<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PRELIMINARY PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION DATED SEPTEMBER 1, 1998
<TABLE>
<S> <C> <C>
[LOGO] $2,075,775,000
</TABLE>
INTERNATIONAL PAPER COMPANY
DEBT SECURITIES, PREFERRED STOCK, COMMON STOCK AND WARRANTS
INTERNATIONAL PAPER CAPITAL TRUST III
INTERNATIONAL PAPER CAPITAL TRUST IV
TRUST PREFERRED SECURITIES FULLY AND UNCONDITIONALLY
GUARANTEED BY INTERNATIONAL PAPER COMPANY
------------------
International Paper Company, a New York corporation (the "Company" or
"International Paper"), may issue from time to time, together or separately up
to an aggregate initial offering price of $2,075,775,000 of its (i) debt
securities (the "Debt Securities"), which may be either senior debt securities
(the "Senior Debt Securities") or subordinated debt securities (the
"Subordinated Debt Securities"), consisting of notes, debentures or other
unsecured evidences of indebtedness in one or more series, (ii) shares of its
serial preferred stock, par value $1.00 per share (the "Preferred Stock"),
which, for any or all series of Preferred Stock, may be issued in the form of
depositary shares evidenced by depositary receipts (the "Depositary Shares");
(iii) shares of its common stock, par value $1.00 per share (the "Common
Stock"), and shares issuable upon conversion of securities which are, pursuant
to the terms thereof, convertible into shares of Common Stock; and (iv) warrants
to purchase securities of the Company as shall be designated by the Company at
the time of the offering (the "Warrants") in amounts, at prices and on terms to
be determined at the time of the offering. The Debt Securities, Preferred Stock,
Common Stock and Warrants may be offered independently or together in any
combination for sale directly to purchasers or through dealers, underwriters or
agents designated and in amounts, at prices and on terms to be determined by
market conditions at the time of the offering. The Debt Securities, Preferred
Stock, Depositary Shares, Common Stock and Warrants are referred to herein
collectively as the "Company Securities."
International Paper Capital Trust III and International Paper Capital Trust
IV (each, an "IPC Trust" and collectively, the "IPC Trusts"), statutory business
trusts formed under Delaware law, may offer, from time to time, preferred
securities (the "Trust Preferred Securities") with the payment of dividends and
payments on liquidation or redemption of the Trust Preferred Securities issued
by each IPC Trust guaranteed on a subordinated basis by the Company (the "Trust
Guarantees") to the extent described herein and in an accompanying prospectus
supplement (the "Prospectus Supplement"). The Company will be the owner of the
trust interests represented by common securities (the "Trust Common Securities")
to be issued by each IPC Trust. Unless indicated otherwise in a Prospectus
Supplement, each IPC Trust exists for the sole purpose of issuing its trust
interests and investing the proceeds thereof in Subordinated Debt Securities.
The Company Securities and the Trust Preferred Securities are referred to herein
collectively as the "Offered Securities."
The Offered Securities may be offered as separate series or issuances at an
aggregate initial offering price not to exceed $2,075,775,000 or, if applicable,
the equivalent thereof in one or more foreign currencies, currency units,
composite currencies or in amounts determined by reference to an index as shall
be designated by the Company, in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale and set forth in a
Prospectus Supplement or Prospectus Supplements. The Offered Securities may be
offered separately or as units with other Offered Securities, in separate series
in amounts, at prices and on terms to be determined at or prior to the time of
sale.
Unless otherwise specified in a Prospectus Supplement, the Senior Debt
Securities, when issued, will be unsecured and will rank on a parity with all
other unsecured and unsubordinated indebtedness of the Company. The Subordinated
Debt Securities, when issued, will be subordinated in right of payment to all
Senior Indebtedness of the Company. Certain specific terms of the particular
Offered Securities in respect of which this Prospectus is being delivered are
set forth in the Prospectus Supplement, including, where applicable, (i) in the
case of Debt Securities, the title, aggregate principal amount, denominations,
maturity, any interest rate (which may be fixed or variable) and time of payment
of any interest, any terms for redemption at the option of the Company or the
holder, any terms for sinking fund payments, any terms for conversion or
exchange into other Offered Securities, currency or currencies of denomination
and payment, if other than U.S. dollars, any listing on a securities exchange
and any other terms in connection with the offering and sale of the Debt
Securities in respect of which this Prospectus is delivered, as well as the
initial public offering price; (ii) in the case of Preferred Stock, the specific
title, the aggregate amount, any dividend (including the method of calculating
payment of dividends), seniority, liquidation, redemption, voting and other
rights, any terms for any conversion or exchange into other Offered Securities,
any listing on a securities exchange, the initial public offering price and any
other terms; (iii) in the case of Common Stock, the number of shares of Common
Stock and the terms of offering thereof; (iv) in the case of Warrants, the
designation and number, the exercise price, any listing of the Warrants or the
underlying Offered Securities on a securities exchange and any other terms in
connection with the offering, sale and exercise of the Warrants; (v) in the case
of Trust Preferred Securities, the designation, number of shares, liquidation
amount per share, initial public offering price, dividend rate (or method of
calculation thereof), dates on which dividends shall be payable and dates from
which dividends shall accrue, any redemption or sinking fund provisions and any
conversion or exchange provisions; and (vi) in the case of all Offered
Securities, whether such Offered Securities will be offered separately or as a
unit with other Offered Securities. The Prospectus Supplement will also contain
information, where applicable, about certain United States Federal income tax
considerations relating to, and any listing on a securities exchange of, the
Offered Securities covered by the Prospectus Supplement. (CONTINUED ON NEXT
PAGE)
------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The Offered Securities may be sold directly, through agents, underwriters or
dealers as designated from time to time, or through a combination of such
methods. See "Plan of Distribution." If agents of the Company or the IPC Trusts
or any dealers or underwriters are involved in the sale of the Offered
Securities in respect of which this Prospectus is being delivered, the names of
such agents, dealers or underwriters and any applicable agent's commission,
dealer's purchase price or underwriter's discount will be set forth in or may be
calculated from the Prospectus Supplement with respect to such Offered
Securities. The net proceeds to the Company or the IPC Trusts from such sale
also will be set forth in a Prospectus Supplement.
This Prospectus may not be used to consummate sales of Offered Securities
unless accompanied by a Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS , .
<PAGE>
(CONTINUED FROM PREVIOUS PAGE)
The Debt Securities may be issued in registered form or, subject to certain
limitations set forth herein, bearer form with coupons, or both. In addition,
all or a portion of the Debt Securities of a series may be issuable in temporary
or permanent global form and may be issued in the name of a depository
institution as book-entry securities. Subject to certain exceptions, Debt
Securities in bearer form may not be offered or sold to persons within the
United States or its possessions or to United States persons. See "Limitations
on Issuance of Bearer Securities."
The Company's Common Stock is listed on the New York Stock Exchange under
the trading symbol "IP." Any Common Stock sold pursuant to a Prospectus
Supplement will be listed on such exchange, subject to official notice of
issuance.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, THE ACCOMPANYING
PROSPECTUS SUPPLEMENT OR THE DOCUMENTS INCORPORATED OR DEEMED INCORPORATED BY
REFERENCE HEREIN, AND ANY INFORMATION OR REPRESENTATIONS NOT CONTAINED HEREIN OR
THEREIN MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY
ANY AGENT, DEALER OR UNDERWRITER. THIS PROSPECTUS OR PROSPECTUS SUPPLEMENT DOES
NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY THE
SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL.
THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT AT ANY TIME DOES
NOT IMPLY THAT THE INFORMATION HEREIN OR THEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
2
<PAGE>
AVAILABLE INFORMATION
The Company and the IPC Trusts have filed with the Securities and Exchange
Commission (the "Commission") a joint registration statement on Form S-3
(herein, together with all amendments and exhibits, referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act") with respect to the securities offered hereby. This
- -Prospectus, which forms a part of the Registration Statement, does not contain
all of the information set forth in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company, the IPC Trusts
and the securities offered hereby, reference is made to the Registration
Statement and to the exhibits thereto. Any statements made in this Prospectus
concerning the provisions of certain documents are not necessarily complete and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
International Paper is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and other information with the Commission.
The Registration Statement, the exhibits forming a part thereof and the reports
and other information filed by the Company with the Commission may be inspected
and copies may be obtained at the principal office of the Commission at 450
Fifth Street, N.W., Washington D.C. 20549, and at the following regional offices
of the Commission: 500 West Madison Street, Suite 1400, Chicago, Illinois 60661,
and 7 World Trade Center, 13th Floor, New York, New York 10048. Copies of such
materials can be obtained from the Public Reference Room of the Commission, 450
Fifth Street, N.W., Washington, D.C. 20549, at prescribed rates. Information on
the operation of the Public Reference Room may be obtained by calling the
Commission at 1-800-SEC-0330. Such materials may also be accessed electronically
by means of the Commission's home page on the Internet at (http://www.sec.gov.).
Reports and other information concerning the Company can also be inspected at
the offices of the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York 10005.
No separate financial statements of the IPC Trusts have been included or
incorporated by reference herein. Neither the IPC Trusts nor the Company
considers such financial statements material to holders of Trust Preferred
Securities because (i) all of the voting securities of each of the IPC Trusts
will be owned, directly or indirectly, by the Company, a reporting company under
the Exchange Act, (ii) each of the IPC Trusts has no independent operations but
rather exists for the purpose of issuing securities representing undivided
beneficial interests in the assets of each such IPC Trust and investing the
proceeds thereof in Subordinated Debt Securities, and (iii) the obligations of
the IPC Trusts under the Trust Preferred Securities issued by such trust are
fully and unconditionally guaranteed on a subordinated basis by the Company to
the extent set forth herein. See "The IPC Trusts" and "Description of Trust
Preferred Securities and Trust Guarantees--Trust Guarantees."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
International Paper has filed with the Commission, pursuant to the Exchange
Act (File No. 1-3157), an Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, filed on March 31, 1998, (the "International Paper 1997 Form
10-K"), a Quarterly Report on Form 10-Q for the quarter ended March 31, 1998,
and a Quarterly Report on Form 10-Q for the quarter ended June 30, 1998, as
amended by Amendment No.1 on Form 10-Q/A, filed on August 31, 1998, and Current
Reports on Form 8-K, dated January 13, 1998, January 20, 1998, April 14, 1998
and June 9, 1998, each of which is hereby incorporated in and made a part of
this Prospectus. Statements contained in any such documents as to the contents
of any contract or other document referred to therein are not necessarily
complete and, in each instance, reference is made to the copy of such contract
or other document filed with the Commission, each such statement being qualified
in all respects by such reference.
3
<PAGE>
The following documents filed by the Company with the Commission pursuant to
the Exchange Act (File No. 1-3157) are also incorporated in this Prospectus by
reference: (i) the description of the Company's capital stock which is contained
in the Company's registration statement on Form 8-A, dated July 20, 1976, as
amended, and (ii) the Company's registration statements on Form S-3, filed
January 8, 1992 (No. 33-44855) and December 23, 1993 (No. 33-51447).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Offered Securities shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated, or deemed to be incorporated, by reference herein or contained in
this Prospectus shall be deemed to be modified or superseded for purposes of
this Prospectus to the extent any statement contained herein or in any
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed to constitute a part hereof except as
so modified or superseded. This Prospectus does not contain all the information
set forth in the Registration Statement of which this Prospectus forms a part
which the Company has filed with the Commission and to which reference is hereby
made.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM A COPY OF
THIS PROSPECTUS HAS BEEN DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF SUCH
PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS WHICH ARE INCORPORATED HEREIN BY
REFERENCE, OTHER THAN EXHIBITS TO SUCH DOCUMENTS (UNLESS SUCH EXHIBITS ARE
SPECIFICALLY INCORPORATED BY REFERENCE INTO SUCH DOCUMENTS). REQUESTS FOR SUCH
COPIES SHOULD BE DIRECTED TO INTERNATIONAL PAPER COMPANY, TWO MANHATTANVILLE
ROAD, PURCHASE, NEW YORK 10577, ATTENTION: INVESTOR RELATIONS DEPARTMENT
(TELEPHONE: (914) 397-1632).
Unless otherwise indicated, currency amounts in this Prospectus and any
Prospectus Supplement are stated in United States dollars ("$," "dollars," "U.S.
dollars" or "U.S.$").
THE COMPANY
International Paper is a global paper and forest products company that
produces printing and writing papers, pulp, tissue, paperboard and packaging,
and wood products. The Company also manufactures specialty chemicals and
specialty panels and laminated products. The Company is one of the world's
largest producers of bleached paperboard used primarily in consumer packaging
and uncoated freesheet used in printing and writing, two major and growing
segments in the paper industry. The Company is also a leading producer of
linerboard, which is used in industrial packaging, and a leading distributor of
printing and writing papers and other products. International Paper's primary
markets and manufacturing and distribution operations are in the United States,
Europe and the Pacific Rim.
At December 31, 1997, the Company operated in the United States 26 pulp,
paper and packaging mills, 59 converting and packaging plants, 32 wood products
facilities, 13 specialty panels and laminated products plants, and 6 specialty
chemicals plants. At December 31, 1997, production facilities in Europe, Asia,
Latin America and Canada included 13 pulp, paper and packaging mills, 33
converting and packaging plants, one wood products facility, 5 specialty panels
and laminated products plants and 5 specialty chemicals plants. The Company
distributes printing, packaging, graphic arts and industrial supply products,
primarily manufactured by other companies, through more than 300 distribution
branches located primarily in the United States, and also engages in oil and gas
and real estate activities in the United States. At December 31, 1997, the
Company controlled approximately 6.3 million acres of forestlands, making it one
of the largest private landowners in the United States. Substantially all of the
Company's businesses have experienced and are likely to continue to experience
cycles relating to available industrial capacity and general economic
conditions.
As of December 31, 1997, International Paper owned approximately 50.1% of
Carter Holt Harvey Limited ("Carter Holt Harvey"), a paper and forest products
company primarily operating in New
4
<PAGE>
Zealand and Australia. Accordingly, Carter Holt Harvey is consolidated into
International Paper's financial statements. At December 31, 1997, Carter Holt
Harvey operated 6 mills producing pulp, paper, packaging and tissue products, 26
converting and packaging facilities, and 53 wood products manufacturing and
distribution facilities. Carter Holt Harvey distributes paper and packaging
products though 20 distribution branches located in New Zealand and Australia.
In New Zealand, Carter Holt Harvey controlled approximately 845,000 acres of
forestlands as of December 31, 1997.
To achieve its current market position, the Company has followed a
consistent strategy for improved profitability and growth which is based on
enhancing cost position and efficiency, emphasizing higher value products,
expanding into fast-growing markets worldwide, and maintaining and developing
market leadership positions for its three core businesses: (i) paper including
paper distribution; (ii) consumer and industrial packaging; and (iii) forest
products, which encompasses building materials and related products. As a result
of this strategy, which in part has been implemented through acquisitions, the
Company's total sales have increased more than 2.5 times since 1987, to
approximately $20.1 billion in 1997. During this period, net sales from
operations outside the United States have increased more than 10 times.
The Company has grown substantially as a result of acquisitions. Since 1987,
the Company has completed over 40 acquisitions at an aggregate cost, including
the assumption of debt, of approximately $11 billion.
On March 12, 1996, the Company completed a merger with Federal Paper Board
("Federal"), a diversified forest and paper products company for a total
consideration of $3.5 billion, including $1.4 billion in International Paper
common stock and the assumption of approximately $800 million of Federal debt.
In addition to the Federal acquisition, the Company has also completed a
number of other strategic transactions, including the following:
- In March 1998, a subsidiary of International Paper purchased all of the
7,299,500 publicly traded Class A Depositary Units of IP Timberlands Ltd.,
a timberland limited partnership.
- In February 1998, the Company entered into a joint venture with Olmuksa in
Turkey for the manufacture of containerboard and corrugated boxes for
markets in Europe and Turkey.
- In February 1998, Carter Holt Harvey and International Paper jointly
acquired Australia-based Continental Cup. This acquisition will allow
Carter Holt Harvey and International Paper's cup subsidiary, Imperial
Bondware, to offer a full line of foodservice products in Australian and
New Zealand markets.
- In November 1997, the Company acquired Taussig Graphics Supply, Inc., a
distributor of graphic arts products, to complement the Company's
distribution business.
- In September 1997, the Company acquired Merbok Formtec, a company that has
pioneered the development of doorfacing products through postforming
medium density fiberboard.
Since March 31, 1998, the Company has consummated or announced several
strategic acquisitions intended to increase the focus of its packaging and
distribution business and to increase its presence in Eastern Europe.
In order to improve the integration of the Company's industrial packaging
business, the Company in April 1998 acquired Weston Paper & Manufacturing
Company ("Weston Paper") by exchanging International Paper common stock worth
approximately $232 million for all of the outstanding Weston Paper common
shares. Weston Paper operates one paper mill that produces corrugated medium and
11 corrugated container plants.
Early in the second quarter of 1998, Carter Holt Harvey acquired the
Australian folding carton business of Riverwood International.
5
<PAGE>
In June 1998, International Paper reached a definitive agreement to purchase
the Zellerbach distribution business from The Mead Corporation for approximately
$263 million. Ohio-based Zellerbach distributes printing, packaging and
industrial supplies and equipment throughout the United States. Once combined
with International Paper's distribution business, xpedx, Zellerbach will enable
the Company to provide its customers with a more diverse and well rounded
portfolio of products. In addition, the integration of the two businesses is
expected to yield significant savings in facility and personnel costs. The
acquisition was completed in the 1998 third quarter.
In June 1998, International Paper signed an agreement to purchase OAO
Svetogorsk, a Russia-based pulp and paper business, from Tetra Laval. OAO
Svetogorsk should complement International Paper's leading European position in
business papers and should enhance the Company's ability to serve growing market
demand in Russia and Eastern Europe.
The Company's future investment strategy is to continue to invest
selectively to reduce costs further in its three businesses: paper, packaging
and forest products. More significantly, investment will occur in higher growth
value-added lines in which the Company has a material market position such as
consumer and industrial packaging.
From 1988 through 1997, the Company's cumulative capital expenditures
approximated $11.5 billion. These expenditures reflect continuing efforts to
improve product quality and environmental performance, lower costs, expand
production capacity, and improve forestlands. Capital spending in 1997 was $1.1
billion and is expected to remain stable in 1998.
The Company has successfully completed the sale of approximately $1 billion
of assets which included the imaging products businesses, the Veratec nonwovens
business, the label business, multiwall bag plants, certain timber assets and
the building products business of Carter Holt Harvey. In addition, the Company
anticipates divesting an incremental $500 million in other non strategic assets.
The Company was incorporated in 1941 under the laws of the State of New York
as a successor to the New York corporation of the same name organized in 1898.
The Company's principal executive offices are located at Two Manhattanville
Road, Purchase, New York 10577 and the telephone number at such location is
(914) 397-1500.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
(UNAUDITED, DOLLARS IN MILLIONS)
The following table sets forth International Paper's ratio of earnings to
fixed charges on a historical basis for each of the five years in the period
ended December 31, 1997, and for the six-month periods ended June 30, 1997 and
June 30, 1998. The ratio of earnings to fixed charges and the ratio of earnings
to combined fixed charges and preferred stock dividends are the same for all
periods presented.
<TABLE>
<CAPTION>
SIX
MONTHS
ENDED
YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------ ------------
1993 1994 1995 1996 1997 1997 1998
---- ---- ---- ---- ------ ------ ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed
Charges..................... 2.26 2.43 3.61 1.80 1.67
Deficiency in earnings
necessary to cover fixed
charges..................... $195.3 $543.1
</TABLE>
For purposes of computing the ratio of earnings to fixed charges, earnings
include pre-tax earnings before extraordinary charges and the cumulative effect
of accounting changes, interest expense and the estimated interest factor in
rent expense (which, in the opinion of International Paper, approximates one-
third of rent expense), and adjustments for undistributed equity earnings and
the amortization of capitalized interest. Fixed charges include interest
incurred (including amounts capitalized) and the estimated interest factor in
rent expense.
6
<PAGE>
THE IPC TRUSTS
International Paper Capital Trust III and International Paper Capital Trust
IV (each, an "IPC Trust" and collectively, the "IPC Trusts") are statutory
business trusts each formed under Delaware law pursuant to (i) a separate
Declaration of Trust (a "Declaration") executed by the Company, as sponsor for
such IPC Trusts, and the Trustees (as defined herein) of such IPC Trust and (ii)
the filing of a certificate of trust with the Delaware Secretary of State.
Unless an accompanying Prospectus Supplement provides otherwise, each IPC Trust
exists for the sole purposes of (i) issuing the Trust Preferred Securities and
investing the proceeds thereof in a specific series of Subordinated Debt
Securities, (ii) issuing and selling Common Securities to the Company in
exchange for cash and investing the proceeds thereof in additional Subordinated
Debt Securities, and (iii) engaging in such other activities as are necessary,
convenient or incidental thereto. Each IPC Trust shall not borrow money, issue
debt or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
such IPC Trust not to be classified for United States Federal income tax
purposes as a grantor trust. All of the Trust Common Securities of each IPC
Trust will be owned by the Company. The Trust Common Securities will rank PARI
PASSU, and payments will be made thereon PRO RATA, with the Trust Preferred
Securities, except that upon the occurrence and continuance of an event of
default under the Declaration, the rights of the holders of the Trust Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise will be subordinated to the rights of the holders of
the Trust Preferred Securities. The Company will acquire Trust Common Securities
having an aggregate liquidation amount equal to a minimum of 3% of the total
capital of each IPC Trust. Each IPC Trust will have a term of 40 years, but may
terminate earlier as provided in the Declaration of such IPC Trust. Each IPC
Trust's business and affairs will be conducted by the Trustees of such IPC
Trust. The holder of the Trust Common Securities of each IPC Trust will be
entitled to appoint, remove or replace any of, or increase or reduce the number
of, the Trustees of such IPC Trust. The duties and obligations of the Trustees
of each IPC Trust shall be governed by the Declaration of such IPC Trust. At
least one of the Trustees of each IPC Trust will be a person who is an employee
or officer of or who is affiliated with the Company (a "Regular Trustee"). One
Trustee of each IPC Trust will be a financial institution that is not affiliated
with the Company, which shall act as property trustee and as indenture trustee
for the purposes of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), pursuant to the terms set forth in a Prospectus Supplement (the
"Property Trustee"). In addition, unless the Property Trustee of each IPC Trust
maintains a principal place of business in the State of Delaware and otherwise
meets the requirements of applicable law, one Trustee of each IPC Trust will be
a legal entity having a principal place of business in, or an individual
resident of, the State of Delaware (the "Delaware Trustee" and, together with
the Regular Trustee and the Property Trustee, the "Trustees"). The Company will
pay all fees and expenses related to each IPC Trust and the offering of the
Trust Preferred Securities of such IPC Trust. Unless otherwise indicated in an
applicable Prospectus Supplement, the Property Trustee will be The Bank of New
York, and the Delaware Trustee will be The Bank of New York (Delaware). Unless
otherwise indicated in an applicable Prospectus Supplement, the office of the
Delaware Trustee in the State of Delaware is White Clay Center, Route 273,
Newark, Delaware 19711. The principal place of business of each IPC Trust is c/o
International Paper Company, Two Manhattanville Road, Purchase, New York 10577.
Telephone: (914) 397-1500.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement, the net proceeds
from the sale of the Company Securities offered hereby will be used for general
corporate purposes. Unless otherwise specified in the Prospectus Supplement, the
IPC Trusts will use all proceeds from the sale of Trust Preferred Securities to
purchase Subordinated Debt Securities of the Company. Additional information on
the use of net proceeds from the sale of the Offered Securities offered hereby
may be set forth in the Prospectus Supplement relating to such Offered
Securities.
7
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may not apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Senior Debt Securities will be issued under one of two identical
Indentures (each, a "Senior Indenture"), the forms of which have been filed with
the Commission as exhibits to, or incorporated by reference in, the Registration
Statement of which this Prospectus forms a part, to be entered into between the
Company and The Chase Manhattan Bank, N.A., as trustee, or such other trustee as
shall be named in a Prospectus Supplement. The Subordinated Debt Securities will
be issued under one of two separate identical Indentures (each, a "Subordinated
Indenture"), the forms of which have been filed with the Commission as exhibits
to, or incorporated by reference in, the Registration Statement of which this
Prospectus forms a part, to be entered into between the Company and The Chase
Manhattan Bank, N.A., as trustee, or such other trustee as shall be named in a
Prospectus Supplement. The Senior Indenture and the Subordinated Indenture are
sometimes referred to collectively as the "Indentures." Copies of the Senior
Indenture and the Subordinated Indenture have been filed as exhibits to the
Registration Statement. The Chase Manhattan Bank, N.A., or such other trustee as
shall be named in a Prospectus Supplement, as trustee under the Senior Indenture
and under the Subordinated Indenture, is referred to herein as the "Trustee."
The following summaries of certain provisions of the Senior Debt Securities,
the Subordinated Debt Securities and the Indentures do not purport to be
complete and are subject to, and qualified in their entirety by reference to,
all the provisions of the Indenture applicable to a particular series of Debt
Securities, including the definitions therein of certain terms. Wherever
particular Sections, Articles or defined terms of the Indentures are referred to
herein or in a Prospectus Supplement, it is intended that such Sections,
Articles or defined terms shall be incorporated by reference herein or therein,
as the case may be. Section and Article references used herein are references to
the applicable Indenture. Except as otherwise indicated, the terms of the Senior
Indenture and the Subordinated Indenture are identical. Capitalized terms not
otherwise defined herein shall have the meanings given to them in the applicable
Indenture.
GENERAL
The Indentures will not limit the aggregate principal amount of Debt
Securities which may be issued thereunder, and each Indenture provides that Debt
Securities may be issued thereunder from time to time in one or more series up
to the aggregate amount from time to time authorized by the Company for each
series. Unless otherwise specified in the Prospectus Supplement, the Senior Debt
Securities when issued will be unsecured and unsubordinated obligations of the
Company and will rank equally and ratably with all other unsecured and
unsubordinated indebtedness of the Company. The Subordinated Debt Securities
when issued will be subordinated in right of payment to the prior payment in
full of all Senior Indebtedness (as defined in the Subordinated Indenture) of
the Company as described in the Prospectus Supplement applicable to the offering
of Subordinated Debt Securities.
Concurrently with the issuance of Trust Preferred Securities, the IPC Trusts
will invest the proceeds thereof and the consideration paid by the Company for
the related Trust Common Securities in Subordinated Debt Securities. The
Subordinated Debt Securities will be in the principal amount equal to the
aggregate stated liquidation preference of the Trust Preferred Securities plus
the Company's concurrent investment in the related Trust Common Securities.
8
<PAGE>
Reference is made to the Prospectus Supplement relating to the particular
series of Debt Securities offered thereby for a description of the following
terms or additional provisions of the Debt Securities: (1) the title of the Debt
Securities; (2) whether the Debt Securities are Senior Debt Securities or
Subordinated Debt Securities; (3) any limit on the aggregate principal amount of
the Debt Securities; (4) whether the Debt Securities are to be issuable as
Registered Securities or Bearer Securities or both, whether any of the Debt
Securities shall be issuable in whole or in part in temporary or permanent
global form or in the form of Book-Entry Securities and, if so, the
circumstances under which any such global security or global securities or
Book-Entry Securities may be exchanged for Debt Securities registered in the
name of, and any transfer of such global or Book-Entry Securities may be
registered to, a Person other than the depository for such temporary or
permanent global securities or Book-Entry Securities or its nominee; (5) the
price or prices (expressed as a percentage of the aggregate principal amount
thereof) at which the Debt Securities will be issued; (6) the date or dates on
which the Debt Securities will mature; (7) the rate or rates per annum at which
the Debt Securities will bear interest, if any, and the date from which any such
interest will accrue; (8) the Interest Payment Dates on which any such interest
on the Debt Securities will be payable, the Regular Record Date for any interest
payable on any Debt Securities which are Registered Securities on any Interest
Payment Date and the extent to which, or the manner in which, any interest
payable on a temporary global Security on an Interest Payment Date will be paid
if other than in the manner described under "Temporary Global Securities" below;
(9) any mandatory or optional sinking fund or analogous provisions; (10) each
office or agency where, subject to the terms of the applicable Indenture as
described below under "Payment and Paying Agents," the principal of and any
premium and interest on the Debt Securities will be payable and each office or
agency where, subject to the terms of the applicable Indenture as described
below under "Form, Exchange, Registration and Transfer," the Debt Securities may
be presented for registration of transfer or exchange; (11) the date, if any,
after which and the price or prices at which the Debt Securities may, pursuant
to any optional or mandatory redemption provisions, be redeemed, in whole or in
part, and the other detailed terms and provisions of any such optional or
mandatory redemption provisions, which may include with respect to a particular
series or particular Debt Securities within a series, a redemption option of
Holders upon certain conditions, as defined in the applicable Indenture; (12)
the denominations in which any Debt Securities which are Registered Securities
will be issuable, if other than denominations of $1,000 and any integral
multiple thereof, and the denomination or denominations in which any Debt
Securities which are Bearer Securities will be issuable, if other than the
denomination of $5,000; (13) the currency or currency units of payment of
principal of and any premium and interest on the Debt Securities; (14) any index
used to determine the amount of payments of principal of and any premium and
interest on the Debt Securities and the manner in which such amounts shall be
determined; (15) the terms and conditions, if any, pursuant to which such Debt
Securities are convertible or exchangeable into a security or securities of the
Company; and (16) any other terms of the Debt Securities not inconsistent with
the provisions of the applicable Indenture. (Section 3.1) Any such Prospectus
Supplement will also describe any special provisions for the payment of
additional amounts with respect to the Debt Securities.
Debt Securities may also be issued under the Indentures upon the exercise of
Warrants. See "Description of Warrants."
Debt Securities may be issued as Original Issue Discount Securities. An
Original Issue Discount Security is a Debt Security, including any Zero-Coupon
Security, which is issued at a price lower than the amount payable upon the
Stated Maturity thereof and which provides that upon redemption or acceleration
of the maturity, an amount less than the amount payable upon the Stated
Maturity, determined in accordance with the terms of such Debt Security, shall
become due and payable. Certain special United States federal income tax
considerations applicable to Debt Securities sold at an original issue discount
will be described in the Prospectus Supplement relating thereto. In addition,
certain special United States federal income tax or other considerations
applicable to any Debt Securities which are denominated in a currency or
currency unit other than United States dollars may be described in the
applicable Prospectus Supplement relating thereto.
9
<PAGE>
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable in definitive form solely as
Registered Securities, solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Unless otherwise indicated in an applicable
Prospectus Supplement, Bearer Securities will have interest coupons attached.
(Section 2.1) The Indentures also will provide that Debt Securities of a series
may be issuable in temporary or permanent global form and may be issued as
Book-Entry Securities that will be deposited with, or on behalf of, The
Depository Trust Company (the "Depository") or another depository named by the
Company and identified in a Prospectus Supplement with respect to such series.
(Sections 2.1 and 2.4) See "--Global and Book-Entry Debt Securities."
In connection with its original issuance, no Bearer Security (including a
Debt Security exchangeable for a Bearer Security or a Debt Security in global
form that is either a Bearer Security or exchangeable for Bearer Securities)
shall be mailed or otherwise delivered to any location in the United States (as
defined under "Limitations on Issuance of Bearer Securities") and a Bearer
Security may be delivered in connection with its original issuance only if the
Person entitled to receive such Bearer Security furnishes written certification
of the beneficial ownership of the Bearer Security as required by Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(3). In the case of a Bearer Security in
permanent global form, such certification must be given in connection with
notation of a beneficial owner's interest therein in connection with the
original issuance of such Debt Security. (Section 3.3) See "--Global and
Book-Entry Debt Securities" and "Limitations on Issuance of Bearer Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations. In addition, if Debt
Securities of any series are issuable as both Registered Securities and Bearer
Securities, at the option of the Holder upon request confirmed in writing, and
subject to the terms of the applicable Indenture, Bearer Securities (with all
unmatured coupons, except as provided below, and all matured coupons in default)
of such series will be exchangeable into Registered Securities of the same
series of any authorized denominations and of a like aggregate principal amount
and tenor. Bearer Securities surrendered in exchange for Registered Securities
between a Regular Record Date or a Special Record Date and the relevant date for
payment of interest shall be surrendered without the coupon relating to such
date for payment of interest and interest accrued as of such date will not be
payable in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the terms of the applicable Indenture. Bearer Securities will
not be issued in exchange for Registered Securities. (Section 3.5) Each Bearer
Security, and any coupon attached thereto, other than a temporary global Bearer
Security will bear the following legend: "Any United States person who holds
this obligation will be subject to limitations under the United States income
tax laws, including the limitations provided in Sections 165(j) and 1287(a) of
the United States Internal Revenue Code." A Book-Entry Security may not be
registered for transfer or exchange (other than as a whole by the Depository to
a nominee or by such nominee to such Depository) unless the Depository or such
nominee notifies the Company that it is unwilling or unable to continue as
Depository or the Depository ceases to be qualified as required by the
applicable Indenture or the Company instructs the Trustee in accordance with the
applicable Indenture that such Book-Entry Securities shall be so registrable and
exchangeable or there shall have occurred and be continuing an Event of Default
with respect to the Debt Securities evidenced by such Book-Entry Securities or
there shall exist such other circumstances, if any, as may be specified in the
applicable Prospectus Supplement. (Section 3.5)
Debt Securities may be presented for exchange as provided above, and
Registered Securities may be presented for registration of transfer (with the
form of transfer endorsed thereon duly executed), at the office of the Security
Registrar or at the office of any transfer agent designated by the Company for
such purpose with respect to any series of Debt Securities and referred to in an
applicable Prospectus Supplement, without service charge and upon payment of any
taxes and other governmental charges as
10
<PAGE>
described in the applicable Indenture. Such transfer or exchange will be
effected upon the Security Registrar or such transfer agent, as the case may be,
being satisfied with the documents of title and identity of the person making
the request. The Company has appointed the Trustee as Security Registrar.
(Section 3.5) If a Prospectus Supplement refers to any transfer agents (in
addition to the Security Registrar) initially designated by the Company with
respect to any series of Debt Securities, the Company may at any time rescind
the designation of any such transfer agent or approve a change in the location
through which any such transfer agent acts, except that, if Debt Securities of a
series are issuable solely as Registered Securities, the Company will be
required to maintain a transfer agent in each Place of Payment for such series
and, if Debt Securities of a series are issuable as Bearer Securities, the
Company will be required to maintain (in addition to the Security Registrar) a
transfer agent in a Place of Payment for such series located outside the United
States. The Company may at any time designate additional transfer agents with
respect to any series of Debt Securities. (Section 10.2)
Unless otherwise indicated an applicable Prospectus Supplement, in the event
of any redemption in part, the Company shall not be required to (i) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
(A) if Debt Securities of the series are issuable only as Registered Securities,
the day of mailing of the relevant notice of redemption and (B) if Debt
Securities of the series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if Debt Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption; (ii) register the transfer of
or exchange any Registered Security, or portion thereof, called for redemption,
except the unredeemed portion of any Registered Security being redeemed in part;
or (iii) exchange any Bearer Security called for redemption, except to exchange
such Bearer Security for a Registered Security of that series and like tenor
which is immediately surrendered for redemption. (Section 3.5)
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest on Bearer Securities will be
payable, subject to any applicable laws and regulations, at the offices of such
Paying Agents outside the United States as the Company may designate from time
to time, at the option of the Holder, by check or by transfer to an account
maintained by the payee with a bank located outside the United States. Unless
otherwise indicated in an applicable Prospectus Supplement, payment of interest
on Bearer Securities on any Interest Payment Date will be made only against
surrender to the Paying Agent of such coupon relating to such Interest Payment
Date. (Section 10.1) No payment with respect to any Bearer Security will be made
at any office or agency of the Company in the United States or by check mailed
to any address in the United States or by transfer to an account maintained with
a bank located in the United States. Notwithstanding the foregoing, payments of
principal of, and premium, if any, and interest on Bearer Securities denominated
and payable in U.S. dollars will be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment of the full amount thereof in U.S. dollars at all offices or agencies
outside the Untied States is illegal or effectively precluded by exchange
controls or other similar restrictions. (Section 10.2)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of, premium, if any, and interest on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that at the option of the Company payment of
any interest may be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register. Unless otherwise
indicated in an applicable Prospectus Supplement, payment of any instalment of
interest on Registered Securities will be made to the Person in whose name such
Registered Security is registered at the close of business on the Regular Record
Date for such interest. (Section 3.7)
11
<PAGE>
Unless otherwise indicated in an applicable Prospectus Supplement, the
Corporate Trust Office of the Trustee in The City of New York will be designated
as a Paying Agent for the Company for payments with respect to Debt Securities
which are issuable solely as Registered Securities and the Company will maintain
a Paying Agent outside of the United States for payments with respect to Debt
Securities (subject to the limitations described above in the case of Bearer
Securities) which are issuable solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Any Paying Agents outside the United States
and any other Paying Agent in the United States initially designated by the
Company for the Debt Securities will be named in an applicable Prospectus
Supplement. The Company may at any time designate additional Paying Agents or
rescind the designation of any Paying Agent or approve a change in the office
through which any Paying Agent acts, except that, if Debt Securities of a series
are issuable solely as Registered Securities, the Company will be required to
maintain a Paying Agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain (i) a Paying Agent in the Borough of Manhattan, The City of
New York for payments with respect to any Registered Securities of the series
(and for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Debt Securities of such
series and any coupons appertaining thereto may be presented and surrendered for
payment; provided that if the Debt Securities of such series are listed on The
Stock Exchange of the United Kingdom and the Republic of Ireland or the
Luxembourg Stock Exchange or any other stock exchange located outside the United
States and such stock exchange shall so require, the Company will maintain a
Paying Agent in London or Luxembourg or any other required city located outside
the United States, as the case may be, for the Debt Securities of such series.
(Section 10.2)
Payments of principal of, premium, if any, and interest on Book-Entry
Securities registered in the name of any Depository or its nominee will be made
to the Depository or its nominee, as the case may be, as the registered owner of
the global security representing such Book-Entry Securities. The Company expects
that the Depository, upon receipt of any payment of principal, premium or
interest, will credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests as shown on the
records of such Depository or its nominee. Neither the Company, the Trustee, any
Paying Agent nor the Securities Registrar for such Debt Securities will have any
responsibility or liability for any aspects of the records relating to, or
payments made on account of, such beneficial ownership interests in the
Book-Entry Securities or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
All moneys paid by the Company to a Paying Agent for the payment of
principal of, premium, if any, or interest on any Debt Securities which remain
unclaimed at the end of two years after such principal, premium or interest
shall have become due and payable will be repaid to the Company and the Holder
of such Debt Security or any coupon will thereafter look only to the Company for
payment thereof. (Section 10.3)
GLOBAL AND BOOK-ENTRY DEBT SECURITIES
If so specified in an applicable Prospectus Supplement, the portion of the
Debt Securities of a series which are issuable as Bearer Securities will
initially be represented by one or more temporary or permanent global Debt
Securities, without interest coupons, to be deposited with a common depositary
in London for the Euro-clear System ("Euro-clear") and CEDEL S.A. ("CEDEL") for
credit to the designated accounts. Unless otherwise indicated by an applicable
Prospectus Supplement, on or after 40 days following its issuance, each such
temporary global Debt Security will be exchangeable for definitive Bearer
Securities, definitive Registered Securities or all or a portion of a permanent
global Debt Security, or any combination thereof, as specified in an applicable
Prospectus Supplement, only upon written certification in the form and to the
effect described under "Form, Exchange, Registration and Transfer." No Bearer
Security (including a Debt Security in permanent global form) delivered in
exchange for a
12
<PAGE>
portion of a temporary or permanent global Debt Security shall be mailed or
otherwise delivered to any location in the United States in connection with such
exchange. (Sections 3.4 and 3.5)
A Person having a beneficial interest in a permanent global Debt Security
will, except with respect to payment of principal of, premium, if any, and
interest on such permanent global Debt Security, be treated as a Holder of such
principal amount of Outstanding Debt Securities represented by such permanent
global Debt Security as shall be specified in a written statement of the Holder
of such permanent global Debt Security or, in the case of a permanent global
Debt Security in bearer form, of the operator of Euro-clear or CEDEL which is
provided to the Trustee by such Person. (Section 2.3)
If Debt Securities to be sold in the United States are designated by the
Company in a Prospectus Supplement as Book-Entry Securities, a global security
representing the Book-Entry Securities will be deposited in the name of Cede &
Co., as nominee for the Depository representing the Debt Securities to be sold
in the United States. Upon such deposit of the Book-Entry Securities, the
Depository shall credit an account maintained or designated by an institution to
be named by the Company or any purchaser of the Debt Securities represented by
the Book-Entry Securities with an aggregate amount of Debt Securities equal to
the total number of Debt Securities that have been so purchased. The specific
terms of any depository arrangement with respect to any portion of a series of
Debt Securities to be represented by one or more global securities will be
described in the applicable Prospectus Supplement. Beneficial interests in such
Debt Securities will only be evidenced by, and transfers thereof will only be
effected through, records maintained by the Depository and the institutions that
are Depository participants.
CERTAIN COVENANTS OF THE COMPANY WITH RESPECT TO THE SENIOR DEBT SECURITIES
Unless otherwise indicated in an applicable Prospectus Supplement, with
respect to the Senior Debt Securities the Company will covenant in the Senior
Indenture that it will not, nor will it permit any Subsidiary (as hereinafter
defined), to issue, assume or guarantee any debt for money borrowed ("Debt") if
such Debt is secured by a mortgage, pledge, security interest or lien (a
"mortgage" or "mortgages") upon any Forestlands or Principal Manufacturing
Facility (as hereinafter defined), now owned or hereafter acquired, without in
any such case effectively providing that the Senior Debt Securities shall be
secured equally and ratably with (or prior to) such Debt, except that the
foregoing restrictions shall not apply to (a) mortgages on any property
acquired, constructed or improved by the Company or any Subsidiary after April
1, 1994 which are created within 180 days after such acquisition (or in the case
of property constructed or improved, after the completion and commencement of
commercial operation of such property, whichever is later) to secure or provide
for the payment of the purchase price or cost thereof, or existing mortgages on
property acquired, provided such mortgages shall not apply to any property
theretofore owned by the Company or any Subsidiary other than theretofore
unimproved real property, (b) mortgages on any property acquired from a
corporation which is merged with or into the Company or a Subsidiary or
mortgages outstanding at the time any corporation becomes a Subsidiary, (c)
mortgages in favor of the Company or any Subsidiary, or (d) any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any mortgage referred to in the foregoing clauses (a), (b)
or (c); and except that the following types of transactions, among others, shall
not be deemed to create Debt secured by a mortgage: (x) the sale, mortgage or
other transfer of timber in connection with an arrangement under which the
Company or a Subsidiary is obligated to cut such timber or a portion thereof in
order to provide the transferee with a specified amount of money however
determined and (y) mortgages in favor of governmental bodies of the United
States to secure advance, progress or other payments pursuant to any contract or
statute or to secure indebtedness incurred to finance the purchase price or cost
of constructing or improving the property subject to such mortgages. (Section
10.7 of Senior Indenture)
Notwithstanding the foregoing, the Company and any Subsidiary may, without
securing the Senior Debt Securities, issue, assume or guarantee secured Debt
(which would otherwise be subject to the
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foregoing restrictions) in an aggregate amount which, together with all other
such Debt and the Attributable Debt (as hereinafter defined) in respect of Sale
and Lease-Back Transactions (as hereinafter defined) of the Company and its
Subsidiaries existing at such time (other than Sale or Lease-Back Transactions
the proceeds of which have been applied to the retirement of Funded Debt (as
hereinafter defined)), does not at the time exceed 10% of the net tangible
assets of the Company and its consolidated Subsidiaries as of the latest fiscal
year. (Section 10.7 of Senior Indenture) "Net tangible assets" is defined as the
aggregate amount of assets (less applicable reserves and other properly
deductible items) after deducting therefrom (a) all current liabilities and (b)
all goodwill, tradenames, trademarks, patents, unamortized debt discount and
expense (to the extent included in said aggregate amount of assets) and other
like intangibles, all as set forth on the most recent consolidated balance sheet
of the Company and its consolidated Subsidiaries and computed in accordance with
generally accepted accounting principles.
The Company will not, nor will it permit any Subsidiary to, enter into any
arrangement with any person providing for the leasing to the Company or a
Subsidiary of any Forestlands or any Principal Manufacturing Facility (except
for temporary leases for a term of not more than three years), which property
has been owned and, in the case of any such Principal Manufacturing Facility,
has been placed in commercial operation more than 180 days by the Company or
such Subsidiary and has been or is said to be sold or transferred by the Company
or such Subsidiary to such person (herein referred to as a "Sale and Lease-Back
Transaction"), unless either (a) the Company or such Subsidiary would be
entitled to incur Debt secured by a mortgage on the property to be leased in an
amount equal to the Attributable Debt with respect to such Sale and Lease-Back
Transaction without equally and ratably securing the Senior Debt Securities or
(b) the Company shall, and in any such case the Company will covenant that it
will, apply an amount equal to the fair value (as determined by its Board of
Directors) of the property so leased to the retirement, within 180 days of the
effective date of any such Sale and Lease-Back Transaction, of Debt Securities
or of Funded Debt of the Company which ranks on a parity with the Senior Debt
Securities. (Section 10.8 of Senior Indenture)
The term "Forestlands" shall mean at any time property in the United States
which contains standing timber which is, or upon completion of a growth cycle
then in process is expected to become, of a commercial quantity and of
merchantable quality, excluding from the term "Forestlands," however, any land
which at the time is held by, or has been or is after the date of this
Prospectus transferred to, a Subsidiary primarily for development and/or sale,
and not primarily for the production of any lumber or other timber products.
(Section 1.1 of Senior Indenture)
The term "Principal Manufacturing Facility" shall mean any paperboard, paper
or pulp mill or any paper converting plant of the Company or any Subsidiary
which is located within the United States other than any such mill or plant or
portion thereof (i) which is financed by obligations issued by a State, a
Territory, or a possession of the United States, or any political subdivision of
any of the foregoing, or the District of Columbia, the interest on which is
excludible from gross income of the holders thereof pursuant to the provisions
of Section 103(a) of the Internal Revenue Code (or any successor to such
provision) as in effect at the time of issuance of such obligations, or (ii)
which, in the opinion of the Board of Directors of the Company, is not of
material importance to the total business conducted by the Company and its
Subsidiaries as an entirety. (Section 1.1 of Senior Indenture)
The term "Subsidiary" shall mean any corporation of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether or not at the time stock of any other class or classes
of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or
controlled by the Company, or by any one or more Subsidiaries, or by the Company
and one or more Subsidiaries. (Section 1.1 of Senior Indenture)
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The term "Attributable Debt" shall mean, at the time of determination, the
present value (discounted at the interest rate, compounded semiannually, equal
to the weighted average Yield to Maturity of the Senior Debt Securities then
Outstanding, such average being weighted by the principal amount of the Senior
Debt Securities of each series or, in the case of Original Issue Discount
Securities, such amount to be determined as provided in the definition of
"Outstanding" in the Senior Indenture) of the obligation of a lessee for net
rental payments during the remaining term of any lease (including any period for
which such lease has been extended) entered into in connection with a sale and
leaseback transaction. (Section 1.1 of Senior Indenture)
The term "Funded Debt" shall mean Debt which by its terms matures at, or is
extendible or renewable at the option of the obligor to, a date more than twelve
months after the date of the creation of such Debt. (Section 1.1 of Senior
Indenture)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in an applicable Prospectus Supplement, the
following provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness. Upon any payment or distribution of assets
to creditors upon any liquidation, dissolution, winding up, reorganization,
assignment for the benefit of creditors, marshalling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings in connection
with any insolvency or bankruptcy proceeding of the Company, the Holders of
Senior Indebtedness will first be entitled to receive payment in full of
principal of, and premium, if any, and interest, if any, on such Senior
Indebtedness before the Holders of the Subordinated Debt Securities will be
entitled to receive or retain any payment in respect of the principal of, and
premium, if any, or interest, if any, on the Subordinated Debt Securities.
(Section 16.2 of Subordinated Indenture) By reason of such subordination, in the
event of liquidation or insolvency, creditors of the Company may recover less,
ratably, than Holders of Senior Indebtedness and may recover more, ratably, than
the Holders of the Subordinated Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the Holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the Holders of the Subordinated Debt Securities will
be entitled to receive any payment upon the principal of (or premium, if any) or
interest, if any, on the Subordinated Debt Securities. (Section 16.3 of
Subordinated Indenture)
No payments on account of principal, or premium, if any, or interest, if
any, in respect of the Subordinated Debt Securities may be made if there shall
have occurred and be continuing a default in any payment with respect to Senior
Indebtedness, or an event of default with respect to any Senior Indebtedness
resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default. (Section 16.4 of
Subordinated Indenture) For purposes of the subordination provisions, the
payment, issuance and delivery of cash, property or securities (other than stock
and certain subordinated securities of the Company) upon conversion of a
Subordinated Debt Security will be deemed to constitute payment on account of
the principal of such Subordinated Debt Security.
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Indebtedness, which may include indebtedness that is senior to
the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities constitute Senior Indebtedness under the
Subordinated Indenture.
"Senior Indebtedness" is defined to include all amounts due on and
obligations in connection with any of the following, whether outstanding at the
date of execution of the Subordinated Indenture or thereafter
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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 Subordinated Debt Securities
or that such indebtedness is PARI PASSU with or junior to the Subordinated Debt
Securities. (Section 1.1 of Subordinated Indenture)
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
CONVERSION RIGHTS
The terms on which Debt Securities of any series are convertible into or
exchangeable for Common Stock or other securities of the Company will be set
forth in the Prospectus Supplement relating thereto. Such terms will include
provisions as to whether conversion or exchange is mandatory, at the option of
the Holder or at the option of the Company, and may include provisions pursuant
to which the number of shares of Common Stock or other securities of the Company
to be received by the Holders of Debt Securities would be subject to adjustment.
EVENTS OF DEFAULT
Unless otherwise indicated in an applicable Prospectus Supplement, any one
of the following events will constitute an Event of Default under the applicable
Indenture with respect to Debt Securities of any series: (a) failure to pay any
interest on any Debt Security of that series when due, continued for 30 days (in
the case of the Subordinated Indenture, whether or not such payment is
prohibited by the subordination provisions); (b) failure to pay principal of or
premium, if any, on any Debt Security of that series when due (in the case of
the Subordinated Indenture, whether or not such payment is prohibited by the
subordination provisions); (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series (in the case of the
Subordinated Indenture, whether or not such deposit is prohibited by the
subordination provisions); (d) failure to perform any other covenant of the
Company in the applicable Indenture or such Debt Security (other than a covenant
included in the applicable Indenture solely for the benefit of a series of Debt
Securities other than that series), continued for 60 days after written notice
has been given as provided in the applicable Indenture; (e) certain events in
bankruptcy, insolvency or reorganization involving the Company; and (f) any
other Event of Default provided with respect to the Debt Securities of that
series. (Section 5.1)
If an Event of Default with respect to the Debt Securities of any series at
the time Outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25% in aggregate principal amount of the
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Outstanding Debt Securities of that series by notice as provided in the
applicable Indenture may declare the principal amount of the Debt Securities of
that series (or, in the case of any Debt Security that is an Original Issue
Discount Security or the principal amount of which is not then determinable,
such portion of the principal amount of such Debt Security, or such other amount
in lieu of such principal amount, as may be specified in the terms of such Debt
Security) to be due and payable immediately. At any time after a declaration of
acceleration with respect to Debt Securities of any series has been made, but
before a judgment or decree for payment of money has been obtained by the
Trustee, the Holders of a majority in aggregate principal amount of the
Outstanding Debt Securities of that series may, under certain circumstances,
rescind and annul such acceleration. (Section 5.2)
The Indentures will provide that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the applicable
Indenture at the request or direction of any of the Holders, unless such Holders
shall have offered to the Trustee reasonable indemnity. (Sections 6.1, 6.3)
Subject to such provisions for the indemnification of the Trustee, the Holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of that series. (Section 5.12)
The Company will be required to furnish to the applicable Trustee annually a
statement as to the performance of certain of its obligations under the
applicable Indenture and as to any default in such performance. (Section 10.9)
DEFEASANCE
Unless otherwise indicated in an applicable Prospectus Supplement, if so
specified with respect to any particular series of Debt Securities, the Company
may discharge its indebtedness and its obligations or certain of its obligations
under the applicable Indenture with respect to such series by depositing funds
or obligations issued or guaranteed by the United States of America with the
applicable Trustee.
DEFEASANCE AND DISCHARGE. The Indentures will provide that, if so specified
with respect to the Debt Securities of any series, the Company will be
discharged from any and all obligations in respect of the Debt Securities of
such series (including, in the case of Subordinated Debt Securities, the
subordination provisions described under "Subordination of Subordinated Debt
Securities" herein and except for certain obligations relating to temporary Debt
Securities and exchange of Debt Securities, registration of transfer or exchange
of Debt Securities of such series, replacement of stolen, lost or mutilated Debt
Securities of such series, maintenance of paying agencies, to hold monies for
payment in trust and payment of additional amounts, if any, required in
consequence of United States withholding taxes imposed on payments to non-United
States persons) upon the deposit with the applicable Trustee, in trust, of money
and/or U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of (and premium, if any), each
instalment of interest on, and any sinking fund payments on, the Debt Securities
of such series on the Stated Maturity of such payments in accordance with the
terms of the applicable Indenture and the Debt Securities of such series. Such a
trust may only be established if, among other things, (a) the Company has
delivered to the applicable Trustee an Opinion of Counsel to the effect that (i)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of the applicable Indenture
there has been a change in applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel shall confirm that,
the Holders of Debt Securities of such series will not recognize income, gain or
loss for federal income tax purposes as a result of such deposit, defeasance and
discharge, and will be subject to federal income tax on the same amounts and in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred; (b) the Debt Securities of
such series, if
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then listed on any domestic or foreign securities exchange, will not be delisted
as a result of such deposit, defeasance and discharge; and (c) in the case of
the Subordinated Debt Securities, (x) no default in the payment of principal of,
or premium, if any, or any interest on any Senior Indebtedness beyond any
applicable grace period shall have occurred and be continuing, or (y) no other
default with respect to any Senior Indebtedness shall have occurred and be
continuing and shall have resulted in the acceleration of such Senior
Indebtedness. (Section 4.3) In the event of any such defeasance and discharge of
Debt Securities of such series, Holders of Debt Securities of such series would
be able to look only to such trust fund for payment of principal of and any
premium and any interest on their Debt Securities until Maturity.
DEFEASANCE OF CERTAIN OBLIGATIONS. The Senior Indenture will provide that,
if so specified with respect to the Senior Debt Securities of any series, the
Company may omit to comply with the restrictive covenants described under
"Certain Covenants of the Company" above and any other covenants applicable to
such Senior Debt Securities which are subject to covenant defeasance and any
such omission shall not be an Event of Default with respect to the Debt
Securities of such series, upon the deposit with the Trustee, in trust, of money
and/ or U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay the principal of (and premium, if any), each
instalment of interest on and any sinking fund payments on the Senior Debt
Securities of such series on the Stated Maturity of such payments in accordance
with the terms of the Senior Indenture and the Senior Debt Securities of such
series. The obligations of the Company under the Senior Indenture and the Senior
Debt Securities of such series other than with respect to such covenant shall
remain in full force and effect. Such a trust may be established only if, among
other things, the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the Holders of the Senior Debt Securities of such series
will not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and defeasance of certain obligations and will be subject
to federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and defeasance has not
occurred and (ii) the Senior Debt Securities of such series, if then listed on
any domestic or foreign securities exchange, will not be delisted as a result of
such deposit and defeasance. (Section 10.11 of Senior Indenture)
In the event the Company exercises its option to omit compliance with the
covenants described under "Certain Covenants of the Company" above with respect
to the Senior Debt Securities of any series as described above and the Senior
Debt Securities of such series are declared due and payable because of the
occurrence of any Event of Default, then the amount of money and U.S. Government
Obligations on deposit with the Trustee will be sufficient to pay amounts due on
the Senior Debt Securities of such series at the time of their Stated Maturity
but may not be sufficient to pay amounts due on the Senior Debt Securities of
such series at the time of the acceleration resulting from such Default. The
Company shall in any event remain liable for such payments as provided in the
Senior Indenture.
MEETINGS, MODIFICATION AND WAIVER
Unless otherwise indicated in an applicable Prospectus Supplement,
modifications and amendments of the Indentures may be made by the Company and
the Trustee under the applicable Indenture only with the consent of the Holders
of not less than 66 2/3% aggregate principal amount of the Outstanding Debt
Securities issued under the applicable Indenture and affected by such
modification or amendment unless a greater percentage of such aggregate
principal amount is specified in the applicable Prospectus Supplement; provided,
however, that no such modification or amendment may, without the consent of each
Holder of such Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any instalment of principal of or interest on,
any such Debt Security, (b) reduce the principal amount of, or any premium or
interest on, any such Debt Security, (c) change any obligation of the Company to
pay additional amounts, (d) reduce the amount of principal of an Original Issue
Discount Security or any other Debt Security payable upon acceleration of the
maturity thereof, (e) change the coin or currency in
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which any Debt Security or any premium or interest thereon is payable, (f)
impair the right to institute suit for the enforcement of any payment on or with
respect to any such Debt Security, (g) adversely change the right to convert or
exchange, including decreasing the conversion rate or increasing the conversion
price of, such Debt Security (if applicable), (h) in the case of the
Subordinated Indenture, modify the subordination provisions in a manner adverse
to the Holders of the Subordinated Debt Securities, (i) reduce the percentage in
principal amount of Outstanding Debt Securities of any series, the consent of
whose Holders is required for modification or amendment of the applicable
Indenture or for waiver of compliance with certain provisions of the applicable
Indenture or for waiver of certain defaults, (j) reduce the requirements
contained in the applicable Indenture for quorum or voting, (k) change any
obligations of the Company to maintain an office or agency in the places and for
the purposes required by the Indentures, or (l) modify any of the above
provisions. (Section 9.2)
The Holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Debt Securities of each series may, on behalf of the Holders of all
the Debt Securities of that series, waive, insofar as that series is concerned,
compliance by the Company with certain restrictive provisions of the applicable
Indenture and, if applicable, such Debt Securities, unless a greater percentage
of such aggregate principal amount is specified in the applicable Prospectus
Supplement. (Section 10.10) The Holders of not less than a majority in aggregate
principal amount of the Outstanding Debt Securities of each series may, on
behalf of all Holders of Debt Securities of that series and any coupons
pertaining thereto, waive any past default under the applicable Indenture,
except a default (a) in the payment of principal of, or premium, if any, or any
interest on any Debt Security of such series, and (b) in respect of a covenant
or provision of the applicable Indenture and, if applicable, such Debt
Securities which cannot be modified or amended without the consent of the Holder
of each Outstanding Debt Security of such series affected. (Section 5.13)
The applicable Indenture will provide that in determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities
have given any request, demand, authorization, direction, notice, consent or
waiver thereunder or are present at a meeting of Holders of Debt Securities for
quorum purposes, (i) the principal amount of an Original Issue Discount Security
that shall be deemed to be Outstanding shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof, and (ii) the principal amount of a Debt
Security denominated in a foreign currency or currency units shall be the U.S.
dollar equivalent, determined on the date of original issuance of such Debt
Security, of the principal amount of such Debt Security or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent, determined on the
date of original issuance of such Debt Security, of the amount determined as
provided in (i) above. (Section 1.1)
The applicable Indenture will contain provisions for convening meetings of
the Holders of Debt Securities of a series if Debt Securities of that series are
issuable as Bearer Securities. (Section 13.1) A meeting may be called at any
time by the Trustee, and also, upon request, by the Company or the Holders of at
least 10% in principal amount of the Outstanding Debt Securities of such series,
in any such case upon notice given in accordance with "Notices" below. (Section
13.2) Except for any consent which must be given by the Holder of each
Outstanding Debt Security affected thereby, as described above, any resolution
presented at a meeting or adjourned meeting at which a quorum is present may be
adopted by the affirmative vote of the Holders of a majority in principal amount
of the Outstanding Debt Securities of that series; provided, however, that,
except for any consent which must be given by the Holder of each Outstanding
Debt Security affected thereby, as described above, any resolution with respect
to any consent or waiver which may be given by the Holders of not less than 66
2/3% in principal amount of the Outstanding Debt Securities of a series may be
adopted at a meeting or an adjourned meeting at which a quorum is present only
by the affirmative vote of 66 2/3% in principal amount of the Outstanding Debt
Securities of that series; and provided, further, that, except for any consent
which must be given by the Holder of each Outstanding Debt Security affected
thereby, as described above, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which may
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be made, given or taken by the Holders of a specified percentage, which is less
than a majority, in principal amount of the Outstanding Debt Securities of a
series may be adopted at a meeting or adjourned meeting duly reconvened at which
a quorum is present by the affirmative vote of the Holders of such specified
percentage in the principal amount of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of any series duly held in accordance with the applicable
Indenture will be binding on all Holders of Debt Securities of that series and
the related coupons. The quorum at any meeting called to adopt a resolution, and
at any reconvened meeting, will be persons holding or representing a majority in
principal amount of the Outstanding Debt Securities of a series; provided,
however, that if any action is to be taken at such meeting with respect to a
consent or waiver which may be given by the Holders of not less than 66 2/3% in
principal amount of the Outstanding Debt Securities of a series, the persons
holding or representing 66 2/3% in principal amount of the Outstanding Debt
Securities of such series will constitute a quorum. (Section 13.4)
CONSOLIDATION, MERGER AND SALE OF ASSETS
Unless otherwise indicated in an applicable Prospectus Supplement, the
Company, without the consent of the Holders of any of the Outstanding Debt
Securities under the applicable Indenture, may consolidate or merge with or
into, sell, lease, transfer or otherwise dispose of its assets substantially as
an entirety to, any Person which is a corporation, partnership or trust
organized and validly existing under the laws of any domestic jurisdiction, or
may permit any such Person to consolidate or merge with or into the Company or
sell, lease, transfer or otherwise dispose of its assets substantially as an
entirety to the Company, provided that any successor Person assumes the
Company's obligations on the Debt Securities and under the applicable Indenture,
that after giving effect to the transaction no Event of Default, and no event
which, after notice or lapse of time, would become an Event of Default, shall
have occurred and be continuing, and that certain other conditions are met.
(Section 8.1)
REDEMPTION AT THE OPTION OF HOLDERS UPON CHANGE IN CONTROL
Unless otherwise indicated in an applicable Prospectus Supplement, in the
event of any Change in Control (as hereinafter defined) of the Company, prior to
maturity of the Debt Securities, that has not been approved by the Continuing
Directors (as hereinafter defined) of the Company, Debt Securities may be
submitted for redemption, on and after the Exchange Date in the case of Debt
Securities of any series issuable as Bearer Securities or at any time in the
case of all other Debt Securities, at the option of the Holders, unless, prior
to the expiration of ten days following such Change in Control, the Company, if
permitted to do so by the terms of the Debt Securities of a series, shall have
called all of the Debt Securities of such series for redemption. Bearer
Securities may be so redeemed only in whole and Registered Securities in whole
or in part in increments of $1,000. Any Debt Securities to be so submitted must
be submitted during a period (the "Exercise Period") commencing on the date of
the Company's notice described below to Holders of such Change in Control and
expiring on the 20th business day after such notice is given.
Debt Securities submitted for redemption will be redeemed on a Redemption
Date that will be the 15th day after expiration of the Exercise Period, at a
redemption price of 100% of the principal amount of the Debt Security, plus
accrued interest to the Redemption Date. Exercise of this redemption option by
the Holder of a Debt Security will be irrevocable.
On or before the tenth day after a Change in Control, the Company is
obligated, unless the Continuing Directors have approved such Change in Control
prior to such date, to give notice to Holders as set forth under "Notices"
below, and written notice to the Trustee, regarding the Change in Control, the
date of expiration of the Exercise Period, the applicable Redemption Date, the
redemption price and the procedure which the Holder must follow to exercise this
option. To exercise this option, the Holder must deliver on or before the
expiration of the Exercise Period to one of the Paying Agents referred to below
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written notice of the Holder's exercise of such option, together with the Debt
Securities with respect to which the option is being exercised, duly endorsed
(in the case of Registered Securities) for transfer. Each Bearer Security
delivered for redemption must be delivered with all coupons maturing after the
Redemption Date. If the Redemption Date falls between any Regular Record Date
and the next succeeding Payment Date, Registered Securities must be accompanied
by payment of an amount equal to the interest thereon which the registered
Holder is to receive on such Interest Payment Date.
As used herein, a "Change in Control" of the Company shall be deemed to have
occurred at such time or times as (a) the Company determines that any person or
related group of persons is the beneficial owner, directly or indirectly, of 20%
or more of the outstanding Common Stock or (b) individuals who constitute the
Continuing Directors cease for any reason to constitute at least a majority of
the Company's directors. "Continuing Director" means any director who is a
director on the date hereof and any director who is nominated or elected by a
majority of Continuing Directors who are then directors.
The Company could, in the future, enter into certain transactions, including
certain recapitalizations or leveraged transactions of the Company, that would
not constitute a Change in Control or would constitute a Change of Control but
would not trigger the Change of Control purchase feature of the Debt Securities
if approved by the Continuing Directors and would increase the amount of the
Company's indebtedness outstanding at such time. However, the Senior Indenture
contains covenants of the Company limiting its ability to mortgage or sell
Principal Manufacturing Facilities or Forestlands. If a Change in Control were
to occur, there can be no assurance that the Company would have sufficient funds
to pay the Change in Control purchase price for all Debt Securities tendered by
the Holders thereof. In addition, the Company's ability to purchase Debt
Securities with cash may be limited by the terms of its then-existing borrowing
agreements. A default by the Company on its obligation to pay the Change in
Control purchase price or a breach of its covenant would result in an Event of
Default and could result in acceleration of the maturity of other indebtedness
of the Company at the time outstanding pursuant to cross-default provisions. The
Company will comply with the provisions of Rule 13e-4, Rule 14e-1 and any other
tender offer rules under the Exchange Act which may then be applicable and will
file a Schedule 13E-4 or any other schedule required thereunder and will
otherwise comply with all federal or state securities laws, as required, in
connection with any of the Debt Securities providing for redemption at the
option of Holders.
NOTICES
Except as otherwise provided in the applicable Indenture, notices to Holders
of Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such Debt Securities. Notices to Holders of Registered Securities
will be given by mail to the address of such Holders as they appear in the
Security Register. (Sections 1.1, 1.6)
TITLE
Title to any temporary global Debt Security, any Bearer Securities
(including Bearer Securities in permanent global form) and any coupons
appertaining thereto will pass by delivery. The Company, the Trustee and any
agent of the Company or the Trustee may treat the bearer of any Bearer Security
and the bearer of any coupon and the registered owner of any Registered Security
as the absolute owner thereof (whether or not such Debt Security or coupon shall
be overdue and notwithstanding any notice to the contrary) for the purpose of
making payment and for all other purposes. (Section 3.8)
REPLACEMENT OF DEBT SECURITIES AND COUPONS
Any mutilated Debt Security or a Debt Security with a mutilated coupon
appertaining thereto will be replaced by the Company at the expense of the
Holder upon surrender of such Debt Security to the Trustee. Debt Securities or
coupons that became destroyed, stolen or lost will be replaced by the Company
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at the expense of the Holder upon delivery of the Trustee of the Debt Security
and coupons or evidence of the destruction, loss or theft thereof satisfactory
to the Company and the Trustee; in the case of any coupon which becomes
destroyed, stolen or lost, such coupon will be replaced by issuance of a new
Debt Security in exchange for the Debt Security to which such coupon appertains.
In the case of a destroyed, lost or stolen Debt Security or coupon, an indemnity
satisfactory to the Trustee and the Company may be required at the expense of
the Holder of such Debt Security or coupon before a replacement Debt Security
will be issued. (Section 3.6)
GOVERNING LAW
The Indentures, the Debt Securities and the coupons will be governed by, and
construed in accordance with, the laws of the State of New York without regard
to principles of conflicts of laws. (Section 1.13)
REGARDING THE TRUSTEE
The Indentures contain limitations on the right of the Trustee, as a
creditor of the Company, to obtain payment of claims in certain cases or to
realize on certain property received in respect of any such claim as security or
otherwise. In addition, the Trustee may be deemed to have a conflicting interest
and may be required to resign as Trustee if at the time of a default under one
of the Indentures it is a creditor of the Company. The Chase Manhattan Bank,
N.A. also acts as trustee under various indentures and the Company and certain
subsidiaries from time to time maintain deposit accounts and conduct their
banking transactions with The Chase Manhattan Bank, N.A. in the ordinary course
of their business. The applicable Prospectus Supplement will describe any such
relationships between the Company and/or certain or its subsidiaries and any
other trustee named in such Prospectus Supplement.
EXPENSES OF THE IPC TRUSTS
Unless otherwise indicated in an applicable Prospectus Supplement, pursuant
to the Subordinated Indenture or a supplement thereto, the Company will agree to
pay all of the costs, expenses or liabilities of the IPC Trusts, other than
obligations of the IPC Trusts to pay to the holders of any Trust Preferred
Securities or Trust Common Securities the amounts due such holders pursuant to
the terms of the Trust Preferred Securities or Trust Common Securities.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 400,000,000
shares of common stock, $1.00 par value per share (the "Common Stock"), (ii)
400,000 shares of cumulative $4 preferred stock, without par value (the "$4
Preferred Stock"), and (iii) 8,750,000 shares of serial preferred stock, $1.00
par value per share (the "Preferred Stock").
At July 31, 1998, there were outstanding (a) 307,247,628 shares of Common
Stock, (b) employee stock options to purchase an aggregate of approximately
12,466,121 shares of Common Stock, (c) 15,696 shares of $4 Preferred Stock and
(d) no shares of any series of Preferred Stock. In addition, approximately
8,332,313 shares of Common Stock were reserved for issuance upon conversion of
International Paper-obligated mandatorily redeemable preferred securities of a
subsidiary trust.
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DESCRIPTION OF PREFERRED STOCK
The following summary contains a description of certain general terms of the
Company's Preferred Stock to which any Prospectus Supplement may relate. Certain
terms of any series of Preferred Stock offered by any Prospectus Supplement will
be described in the Prospectus Supplement relating thereto. If so indicated in
the Prospectus Supplement, the terms of any series may differ from the terms set
forth below. The description of certain provisions of the Company's Preferred
Stock does not purport to be complete and is subject to and qualified in its
entirety by reference to the provisions of the Company's Restated Certificate of
Incorporation (the "Restated Certificate of Incorporation"), and the Certificate
of Designation (the "Certificate of Designation") relating to each particular
series of Preferred Stock which will be filed or incorporated by reference, as
the case may be, as an exhibit to the Registration Statement of which this
Prospectus is a part at or prior to the time of the issuance of such Preferred
Stock.
GENERAL
Under the Company's Restated Certificate of Incorporation, the Board of
Directors of the Company is authorized, without further stockholder action, to
provide for the issuance of up to 8,750,000 shares of Preferred Stock. The
Preferred Stock may be issued in one or more series, with such designations of
titles; dividend rates; any redemption provisions; special or relative rights in
the event of liquidation, dissolution, distribution or winding up of the
Company; any sinking fund provisions; any conversion provisions; any voting
rights thereof; and any other preferences, privileges, powers, rights,
qualifications, limitations and restrictions, as shall be set forth as and when
established by the Board of Directors of the Company. The shares of any series
of Preferred Stock will be, when issued, fully paid and non-assessable and
holders thereof will have no preemptive rights in connection therewith.
So long as any shares of $4 Preferred Stock are outstanding, the
preferences, privileges and voting powers, if any, of the shares of Preferred
Stock of any series, and the restrictions or qualifications thereof, shall be
subject to the preferences, privileges and voting powers, if any, of the shares
of $4 Preferred Stock and the restrictions and qualifications thereof.
RANK
Any series of Preferred Stock will, with respect to rights on liquidation,
winding up and dissolution, rank (i) senior to all classes of Common Stock and
to all equity securities issued by the Company, the terms of which specifically
provide that such equity securities will rank junior to such series of Preferred
Stock (the "Junior Liquidation Securities"); (ii) on a parity with all equity
securities issued by the Company, the terms of which specifically provide that
such equity securities will rank on a parity with such series of Preferred Stock
("Parity Liquidation Securities"); and (iii) junior to all equity securities
issued by the Company, the terms of which specifically provide that such equity
securities will rank senior to such series of Preferred Stock, including the $4
Preferred Stock (the "Senior Liquidation Securities"). In addition, any series
of Preferred Stock will, with respect to dividend rights, rank (i) senior to all
equity securities issued by the Company, the terms of which specifically provide
that such equity securities will rank junior to such series of Preferred Stock
and, to the extent provided in the applicable Certificate of Designation, to
Common Stock, (ii) on a parity with all equity securities issued by the Company,
the terms of which specifically provide that such equity securities will rank on
a parity with such series of Preferred Stock and, to the extent provided in the
applicable Certificate of Designation, to Common Stock ("Parity Dividend
Securities") and (iii) junior to all equity securities issued by the Company,
the terms of which specifically provide that such equity securities will rank
senior to such series of Preferred Stock, including the $4 Preferred Stock. As
used in any Certificate of Designation for these purposes, the term "equity
securities" will not include debt securities convertible into or exchangeable
for equity securities.
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DIVIDENDS
Holders of each series of Preferred Stock will be entitled to receive, when,
as and if declared by the Board of Directors of the Company out of funds legally
available therefor, cash dividends at such rates and on such dates as are set
forth in the Prospectus Supplement relating to such series of Preferred Stock.
Dividends will be payable to holders of record of Preferred Stock as they appear
on the books of the Company (or, if applicable, the records of the Depositary
referred to below under "Description of Depositary Shares") on such record dates
as shall be fixed by the Board of Directors. Dividends on any series of
Preferred Stock may be cumulative or non-cumulative.
No full dividends may be declared or paid on funds set apart for the payment
of dividends on any series of Preferred Stock unless dividends shall have been
paid or set apart for such payment on the Parity Dividend Securities. If full
dividends are not so paid, such series of Preferred Stock shall share dividends
pro rata with the Parity Dividend Securities.
CONVERSION AND EXCHANGE
The Prospectus Supplement for any series of Preferred Stock will state the
terms, if any, on which shares of that series are convertible into shares of
another series of Preferred Stock or Common Stock or exchangeable for another
series of Preferred Stock, Common Stock or Debt Securities of the Company. The
Common Stock of the Company is described below under "Description of Common
Stock."
REDEMPTION
A series of Preferred Stock may be redeemable at any time, in whole or in
part, at the option of the Company or the holder thereof and may be subject to
mandatory redemption pursuant to a sinking fund or otherwise upon terms and at
the redemption prices set forth in the Prospectus Supplement relating to such
series.
In the event of partial redemptions of Preferred Stock, whether by mandatory
or optional redemption, the shares to be redeemed will be determined by lot or
pro rata, as may be determined by the Board of Directors of the Company, or by
any other method determined to be equitable by the Board of Directors. On and
after a redemption date, unless the Company defaults in the payment of the
redemption price, dividends will cease to accrue on shares of Preferred Stock
called for redemption and all rights of holders of such shares will terminate
except for the right to receive the redemption price.
LIQUIDATION PREFERENCE
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the Company, holders of each series of Preferred Stock that ranks senior to the
Junior Liquidation Securities will be entitled to receive out of assets of the
Company available for distribution to shareholders, before any distribution is
made on any Junior Liquidation Securities, including Common Stock, distributions
upon liquidation in the amount set forth in the Prospectus Supplement relating
to such series of Preferred Stock, plus an amount equal to any accrued and
unpaid dividends. If, upon any voluntary or involuntary liquidation, dissolution
or winding up of the Company, the amounts payable with respect to the Preferred
Stock of any series and any other Parity Liquidation Securities are not paid in
full, the holders of the Preferred Stock of such series and the Parity
Liquidation Securities will share ratably in any such distribution of assets of
the Company in proportion to the full liquidation preferences to which each is
entitled. After payment of the full amount of the liquidation preference to
which they are entitled, the holders of such series of Preferred Stock will not
be entitled to any further participation in any distribution of assets of the
Company.
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VOTING RIGHTS
Except as indicated below or in the Prospectus Supplement relating to a
particular series of Preferred Stock or except as expressly required by
applicable law, the holders of shares of Preferred Stock will have no voting
rights.
PREFERRED STOCK OUTSTANDING
As of July 31, 1998, the Company had issued and outstanding 15,696 shares
without par value of $4 Preferred Stock, which is senior to the Common Stock and
the Preferred Stock as to the payment of dividends and distributions of assets
on liquidation, dissolution or winding up of the Company. The $4 Preferred Stock
bears a dividend of $4.00 per share per annum from the surplus or net profits of
the Company, but only when and as declared by the Board of Directors. Dividends
on the $4 Preferred Stock are cumulative. Such dividends are payable quarterly
in each year on such dates as from time to time may be fixed by the Board of
Directors. Accumulation of dividends do not bear interest.
If dividends in full on all outstanding shares of the $4 Preferred Stock for
all past quarterly dividend periods and for the then current quarterly period
have not been paid or declared and set apart for payment, no dividends (other
than dividends payable in stock ranking junior to the $4 Preferred Stock) will
be declared or paid or set apart for payment on, nor will any distribution be
made to, any class of stock ranking junior to the $4 Preferred Stock.
Holders of the $4 Preferred Stock have no general voting rights but have the
right to vote in certain specified circumstances.
If at the time of any annual meeting of shareholders, dividends have not
been paid on the shares of the $4 Preferred Stock in an aggregate amount equal
to four full quarterly dividends (whether consecutive or not), then at such
annual meeting, the holders of the $4 Preferred Stock will have the sole right,
to the exclusion of all other classes of stock, to vote for and elect one-third
(or the nearest whole number thereto) of the total number of directors to be
elected at the meeting and thereafter at all meetings for the election of
directors until all arrearages of dividends accumulated on the $4 Preferred
Stock for all preceding dividend periods shall have been paid or declared and
set apart for payment. Whenever all arrearages of dividends have been paid or
declared and set apart for payment, all powers of the holders of the $4
Preferred Stock to vote for directors will terminate, and the tenure of all
Directors elected by them will automatically end.
So long as any shares of the $4 Preferred Stock are outstanding, the
Company, without first obtaining a majority vote of the holders of the
outstanding shares of the $4 Preferred Stock, may not (i) increase the
authorized number of $4 Preferred Stock, (ii) authorize, create or issue stock
of any class ranking, as to the payment of dividends or distributions upon
dissolution, liquidation or winding up, on a parity with the $4 Preferred Stock,
or (iii) sell, lease or otherwise dispose of all or substantially all of the
assets of the Company, otherwise than by merger or consolidation.
In addition, so long as any shares of $4 Preferred Stock are outstanding,
the Company may not, without first obtaining the vote of holders of at least
two-thirds of the outstanding shares of $4 Preferred Stock, authorize, create or
issue stock of any class ranking, as to the payment of dividends or distribution
upon dissolution, liquidation or winding up, senior to the $4 Preferred Stock.
The Company's Restated Certificate of Incorporation provides that for so
long as any shares of Preferred Stock are outstanding, the Company will not
issue any shares of the $4 Preferred Stock without first obtaining the
affirmative vote of the holders of at least a majority of the outstanding shares
of Preferred Stock.
Upon the dissolution, liquidation or winding up of the Company, the holders
of the $4 Preferred Stock will be entitled to receive out of the net assets of
the Company (whether represented by capital or surplus),
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(i) if such dissolution, liquidation or winding up is voluntary, cash in an
amount per share of $105, and (ii) if such dissolution, liquidation or winding
up is involuntary, cash in the amount of $100 per share. In addition, such
holders will be entitled to receive, in each case, an amount equal to all
dividends accrued and unpaid on such share up to and including the date fixed
for distribution, whether or not earned or declared and, in either case, before
any distribution of the assets to be distributed is made to the holders of stock
ranking junior to the $4 Preferred Stock.
DESCRIPTION OF DEPOSITARY SHARES
The description set forth below of certain provisions of the Deposit
Agreement (as defined below) and of the Depositary Shares and Depositary
Receipts (as defined below) does not purport to be complete and is subject to
and qualified in its entirety by reference to the forms of Deposit Agreement and
Deposit Receipt relating to the Preferred Stock, included as exhibits to the
Registration Statement of which this Prospectus is a part.
GENERAL
The Company may, at its option, elect to offer fractional shares of
Preferred Stock, rather than full shares of Preferred Stock. In the event such
option is exercised, the Company will issue receipts for Depositary Shares, each
of which will represent a fraction (to be set forth in the Prospectus Supplement
relating to a particular series of Preferred Stock) of a share of a particular
series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary Shares
will be deposited under a Deposit Agreement (the "Deposit Agreement") between
the Company and a bank or trust company selected by the Company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000 (the "Depositary"). Subject to the terms of the Deposit
Agreement, each owner of a Depositary Share will be entitled, in proportion to
the applicable fraction of a share of Preferred Stock represented by such
Depositary Share, to all the rights and preferences of the Preferred Stock
represented thereby (including dividend, voting, redemption, conversion and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement (the "Depositary Receipts"). Depositary
Receipts will be distributed to those persons purchasing the fractional shares
of Preferred Stock in accordance with the terms of the offering.
Pending the preparation of definitive Depositary Receipts, the Depositary
may, upon the written order of the Company or any holder of deposited Preferred
Stock, execute and deliver temporary Depositary Receipts which are substantially
identical to, and entitle the holders thereof to all the rights pertaining to,
the definitive Depositary Receipts. Depositary Receipts will be prepared
thereafter without unreasonable delay, and temporary Depositary Receipts will be
exchangeable for definitive Depositary Receipts at the Company's expense.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash
distributions received in respect of the deposited Preferred Stock to the record
holders of Depositary Shares relating to such Preferred Stock in proportion to
the numbers of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto. If the Depositary determines that it is not feasible to make
such distribution, it may, with the approval of the Company, sell such property
and distribute the net proceeds from such sale to such holders.
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REDEMPTION OF STOCK
If a series of Preferred Stock represented by Depositary Shares is to be
redeemed, the Depositary Shares will be redeemed from the proceeds received by
the Depositary resulting from the redemption, in whole or in part, of such
series of Preferred Stock held by the Depositary. The Depositary Shares will be
redeemed by the Depositary at a price per Depositary Share equal to the
applicable fraction of the redemption price per share payable in respect of the
shares of Preferred Stock so redeemed. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same date the number of Depositary Shares representing shares of Preferred Stock
so redeemed. If fewer than all the Depositary Shares are to be redeemed, the
Depositary Shares to be redeemed will be selected by the Depositary by lot or
pro rata or by any other equitable method as may be determined by the
Depositary.
WITHDRAWAL OF STOCK
Any holder of Depositary Shares may, upon surrender of the Depositary
Receipts at the corporate trust office of the Depositary (unless the related
Depositary Shares have previously been called for redemption), receive the
number of whole shares of the related series of Preferred Stock and any money or
other property represented by such Depositary Receipts. Holders of Depositary
Shares making such withdrawals will be entitled to receive whole shares of
Preferred Stock on the basis set forth in the related Prospectus Supplement for
such series of Preferred Stock, but holders of such whole shares of Preferred
Stock will not thereafter be entitled to deposit such Preferred Stock under the
Deposit Agreement or to receive Depositary Receipts therefor. If the Depositary
Shares surrendered by the holder in connection with such withdrawal exceed the
number of Depositary Shares that represent the number of whole shares of
Preferred Stock to be withdrawn, the Depositary will deliver to such holder at
the same time a new Depositary Receipt evidencing such excess number of
Depositary Shares.
VOTING DEPOSITED PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of any series of
deposited Preferred Stock are entitled to vote, the Depositary will mail the
information contained in such notice of meeting to the record holders of the
Depositary Shares relating to such series of Preferred Stock. Each record holder
of such Depositary Shares on the record date (which will be the same date as the
record date for the relevant series of Preferred Stock) will be entitled to
instruct the Depositary as to the exercise of the voting rights pertaining to
the amount of the Preferred Stock represented by such holder's Depositary
Shares. The Depositary will endeavor, insofar as practicable, to vote the amount
of such series of Preferred Stock represented by such Depositary Shares in
accordance with such instructions, and the Company will agree to take all
reasonable actions that may be deemed necessary by the Depositary in order to
enable the Depositary to do so. The Depositary will abstain from voting shares
of the Preferred Stock to the extent it does not receive specific instructions
from the holder of Depositary Shares representing such Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Depositary. However, any amendment which materially
and adversely alters the rights of the holders of the Depositary Shares
representing Preferred Stock of any series will not be effective unless such
amendment has been approved by the holders of at least the amount of the
Depositary Shares then outstanding representing the minimum amount of Preferred
Stock of such series necessary to approve any amendment that would materially
and adversely affect the rights of the holders of the Preferred Stock of such
series. Every holder of an outstanding Depositary Receipt at the time any such
amendment becomes effective, or any transferee of such holder, shall be deemed,
by continuing to hold such Depositary Receipt, or by reason of
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the acquisition thereof, to consent and agree to such amendment and to be bound
by the Deposit Agreement as amended thereby. The Deposit Agreement automatically
terminates if (i) all outstanding Depositary Shares have been redeemed; or (ii)
each share of Preferred Stock has been converted into other preferred stock or
Common Stock or has been exchanged for debt securities; or (iii) there has been
a final distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution has
been distributed to the holders of Depositary Shares.
CHARGES OF DEPOSITARY
The Company will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements. The Company
will pay all charges of the Depositary in connection with the initial deposit of
the relevant series of Preferred Stock and any redemption of such Preferred
Stock. Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges or expenses as are expressly
provided in the Deposit Agreement to be for their accounts.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering to the Company notice of
its election to do so, and the Company may at any time remove the Depositary,
any such resignation or removal to take effect upon the appointment of a
successor Depositary and its acceptance of such appointment. Such successor
Depositary must be appointed within 60 days after delivery of the notice of
resignation or removal and must be a bank or trust company having its principal
office in the United States and having a combined capital and surplus of at
least $50,000,000.
MISCELLANEOUS
The Depositary will forward all reports and communications from the Company
which are delivered to the Depositary and which the Company is required to
furnish to the holders of the deposited Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstances beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares, Depositary
Receipts or shares of Preferred Stock unless satisfactory indemnity is
furnished. They may rely upon written advice of counsel or accountants, or upon
information provided by holders of Depositary Receipts or other persons believed
to be competent and on documents believed to be genuine.
DESCRIPTION OF COMMON STOCK
GENERAL
Subject to the rights of the Holders of any shares of the Company's
Preferred Stock or $4 Preferred Stock which may at the time be outstanding,
holders of Common Stock are entitled to receive such dividends as may be
declared from time to time by the Board of Directors out of funds legally
available therefor.
The holders of Common Stock are entitled to one vote per share on all
matters submitted to a vote of shareholders and do not have cumulative voting
rights. Holders of Common Stock are entitled to receive, upon any liquidation of
the Company, all remaining assets available for distribution to shareholders
after satisfaction of the Company's liabilities and the preferential rights of
any preferred stock that may then be issued and outstanding. The outstanding
shares of Common Stock are, and the shares offered hereby will
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be, fully paid and nonassessable. The holders of Common Stock have no
preemptive, conversion or redemption rights. The Common Stock is listed on the
New York Stock Exchange. The registrar and transfer agent for the Common Stock
is Chemical Bank.
CERTAIN PROVISIONS
The Company's Restated Certificate of Incorporation contains provisions
which: (1) divide the Board of Directors into three classes of as nearly equal
size as possible, with Directors in each class being elected for terms of three
years; (2) require the affirmative vote of 80% of the outstanding shares of
voting stock to remove any Director except for cause; (3) require the
affirmative vote of (a) 80% of the outstanding shares of voting stock and (b) a
majority of the voting stock not owned by an Interested Stockholder (an owner of
10% or more of voting power) to approve any Business Combination (as such term
is defined in the Company's Restated Certificate of Incorporation) with an
Interested Stockholder unless (x) the Business Combination shall have been
approved by the Board of Directors at a time when Disinterested Directors (those
directors unaffiliated with an Interested Stockholder who were either on the
Board of Directors prior to the time the Interested Stockholder became an
Interested Stockholder or succeeded a Disinterested Director and were
recommended for a nomination or election by a majority of the Disinterested
Directors) constitute a majority of the entire Board of Directors or (y) in the
case of a Business Combination involving the payment of consideration to holders
of capital stock, certain conditions concerning the adequacy of the
consideration are met; (4) require the affirmative vote of 80% of the
outstanding shares of voting stock to amend or repeal those provisions of the
Company's Restated Certificate of Incorporation described in clauses (1) and (2)
above; and (5) require the affirmative vote of (x) 80% of the outstanding shares
of voting stock and (y) a majority of the voting stock not owned by an
Interested Stockholder, to approve any proposal made by such Interested
Stockholder to amend or repeal is recommended by the Board of Directors at a
time when Disinterested Directors constitute a majority of the entire Board of
Directors.
The overall effect of these provisions may be to deter or discourage hostile
takeover attempts by making it more difficult for a person who has gained a
substantial equity interest in the Company effectively to exercise control.
DESCRIPTION OF WARRANTS
The Company may issue Warrants, including Warrants to purchase Debt
Securities ("Debt Warrants"), as well as other types of Warrants to purchase
Securities. Warrants may be issued independently or together with any Securities
and may be attached to or separate from such Securities. The Warrants are to be
issued under warrant agreements (each a "Warrant Agreement") to be entered into
between the Company and a bank or trust company, as warrant agent (the "Warrant
Agent"), all as shall be set forth in the Prospectus Supplement relating to
Warrants being offered pursuant thereto.
DEBT WARRANTS
The applicable Prospectus Supplement will describe the terms of Debt
Warrants offered thereby, the Warrant Agreement relating to such Debt Warrants
and the certificates representing such Debt Warrants, including the following:
(1) the title of such Debt Warrants; (2) the aggregate number of such Debt
Warrants; (3) the price or prices at which such Debt Warrants will be issued;
(4) the currency or currencies, including composite currencies or currency
units, in which the price of such Debt Warrants may be payable; (5) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants, and the procedures and
conditions relating to the exercise of such Debt Warrants; (6) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued, and the number of such Debt Warrants issued with each such Debt
Security; (7) the currency or currencies, including composite currencies or
currency units, in which the principal of or any premium or interest on the Debt
Securities purchasable upon exercise of such Debt Warrants will be
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payable; (8) the date, if any, on and after which such Debt Warrants and the
related Debt Securities will be separately transferable; (9) the principal
amount of Debt Securities purchasable upon exercise of each Debt Warrant, and
the price at which and the currency or currencies, including composite
currencies or currency units, in which such principal amount of Debt Securities
may be purchased upon such exercise; (10) the date on which the right to
exercise such Debt Warrants will commence, and the date on which such right will
expire; (11) the maximum or minimum number of such Debt Warrants which may be
exercised at any time; (12) a discussion of any material federal income tax
considerations; and (13) any other terms of such Debt Warrants and terms,
procedures and limitations relating to the exercise of such Debt Warrants.
Certificates representing Debt Warrants will be exchangeable for new
certificates representing Debt Warrants of different denominations, and Debt
Warrants may be exercised at the corporate trust office of the Warrant Agent or
any other office indicated in the Prospectus Supplement. Prior to the exercise
of their Debt Warrants, holders of Debt Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payment of principal of or any premium or interest on the Debt
Securities purchasable upon such exercise.
OTHER WARRANTS
THE COMPANY MAY ISSUE OTHER WARRANTS. The applicable Prospectus Supplement
will describe the following terms of any such other Warrants in respect of which
this Prospectus is being delivered: (1) the title of such Warrants; (2) the
Securities (which may include Preferred Stock or Common Stock) for which such
Warrants are exercisable; (3) the price or prices at which such Warrants will be
issued; (4) the currency or currencies, including composite currencies or
currency units, in which the price of such Warrants may be payable; (5) if
applicable, the designation and terms of the Preferred Stock or Common Stock
with which such Warrants are issued, and the number of such Warrants issued with
each such share of Preferred Stock or Common Stock; (6) if applicable, the date
on and after which such Warrants and the related Preferred Stock or Common Stock
will be separately transferable; (7) if applicable, a discussion of any material
federal income tax considerations; and (8) any other terms of such Warrants,
including terms, procedures and limitations relating to the exchange and
exercise of such Warrants.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase for cash such principal
amount of Debt Securities or number of shares of Preferred Stock or Common Stock
at such exercise price as shall in each case be set forth in, or be determinable
as set forth in, the Prospectus Supplement relating to the Warrants offered
thereby. Warrants may be exercised at any time up to the close of business on
the expiration date set forth in the Prospectus Supplement relating to the
Warrants offered thereby. After the close of business on the expiration date,
unexercised Warrants will become void.
Warrants may be exercised as set forth in the Prospectus Supplement relating
to the Warrants offered thereby. Upon receipt of payment and the certificate
representing the Warrant properly completed and duly executed at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement, the Company will, as soon as practicable, forward the
Securities purchasable upon such exercise. If less than all of the Warrants
represented by such certificate are exercised, a new certificate will be issued
for the remaining Warrants.
LIMITATIONS ON ISSUANCE OF BEARER SECURITIES
In compliance with United States federal tax laws and regulations, Bearer
Securities (including Debt Securities that are exchangeable for Bearer
Securities and Debt Securities in permanent global form that are either Bearer
Securities or exchangeable for Bearer Securities) may not be offered, sold,
resold or delivered in connection with their original issuance in the United
States or to United States persons (each as defined below) except as otherwise
permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D)
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including offers and sales to offices located outside the United States of
United States financial institutions (as defined in Treasury Regulation Section
1.165-12(c)(l)(v)) which agree in writing to comply with the requirements of
Section 165(j)(3)(A),(B) or (C) of the Code, as defined below, and the
regulations thereunder, and any underwriters, agents and dealers participating
in the offering of Debt Securities must agree in writing that they will not
offer, sell or resell any Bearer Securities to persons within the United States
or to United States persons (except as described above) nor deliver Bearer
Securities within the United States. In addition, any such underwriters, agents
and dealers must represent in writing that they have in effect, in connection
with the offer and sale of the Debt Securities, procedures reasonably designed
to ensure that their employees or agents who are directly engaged in selling the
Debt Securities are aware that Bearer Securities cannot be offered or sold to a
person who is within the United States or is a United States person except as
otherwise permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D).
Furthermore, the owner of the obligation (or the financial institution or
clearing organization through which the owner holds the obligation) must certify
to the Company that the owner is not a United States Person. Bearer Securities
and any coupons attached hereto will bear the following legend: "Any United
States person who holds this obligation will be subject to limitations under the
United States income tax laws, including the limitations provided in Sections
165(j) and 1287(a) of the United States Internal Revenue Code."
Purchasers of Bearer Securities may be affected by certain limitations under
United States tax laws. The applicable Prospectus Supplement or Prospectus
Supplements will describe such limitations for any Bearer Securities relating
thereto.
As used herein, "United States person" means (i) an individual who is, for
United States federal income tax purposes, a citizen or resident of the United
States, (ii) a corporation, partnership or other entity created or organized in
or under the laws of the United States or of any political subdivision thereof,
or (iii) an estate or trust the income of which is subject to United States
federal income taxation regardless of its source, and "United States" means the
United States of America (including the States and the District of Columbia),
its territories and its possessions.
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DESCRIPTION OF TRUST PREFERRED SECURITIES AND TRUST GUARANTEES
TRUST PREFERRED SECURITIES
The Declaration pursuant to which each IPC Trust is organized will be
replaced by an Amended and Restated Declaration of Trust (the "Amended
Declaration") which will authorize the Trustees of each IPC Trust to issue on
behalf of such IPC Trust one series of Trust Preferred Securities and one series
of Trust Common Securities (together, the "Trust Securities"). The Trust
Preferred Securities will be issued to the public pursuant to the Registration
Statement of which this Prospectus forms a part, and the Trust Common Securities
will be issued directly or indirectly to the Company.
The Trust Preferred Securities will have such terms, including dividends,
redemption, voting, conversion, liquidation rights and such other preferred,
deferred or other special rights or such restrictions as shall be set forth in
the applicable Amended Declaration or made part of such Amended Declaration by
the Trust Indenture Act. Reference is made to the applicable Prospectus
Supplement relating to the Trust Preferred Securities of such IPC Trust for
specific terms, including (i) the distinctive designation of Trust Preferred
Securities, (ii) the number of Trust Preferred Securities issued by such IPC
Trust, (iii) the annual dividend rate (or method of determining such rate) for
Trust Preferred Securities issued by such IPC Trust and the date or dates upon
which such dividends shall be payable, (iv) whether dividends on Trust Preferred
Securities issued by such IPC Trust shall be cumulative, and, in the case of
Trust Preferred Securities having such cumulative dividend rights, the date or
dates or method of determining the date or dates from which dividends on Trust
Preferred Securities issued by such IPC Trust shall be cumulative, (v) the
amount or amounts which shall be paid out of the assets of such IPC Trust to the
holders of Trust Preferred Securities of such IPC Trust upon voluntary or
involuntary dissolution, winding-up or termination of such IPC Trust, (vi) the
terms and conditions, if any, under which Trust Preferred Securities of such IPC
Trust may be converted into shares of capital stock of the Company, including
the conversion price per share and the circumstances, if any, under which any
such conversion right shall expire, (vii) the terms and conditions, if any, upon
which the related series of the Subordinated Debt Securities of the Company may
be distributed to holders of Trust Preferred Securities of such IPC Trust, (ix)
the obligation, if any, of such IPC to purchase or redeem Trust Preferred
Securities issued by such IPC Trust and the price or prices at which, the period
or periods within which and the terms and conditions upon which Trust Preferred
Securities issued by such IPC shall be purchased or redeemed, in whole or in
part, pursuant to such obligation, (x) the voting rights, if any, of Trust
Preferred Securities issued by such IPC Trust in addition to those required by
law, including the number of votes per Trust Preferred Security and any
requirement for the approval by the holders of Trust Preferred Securities, as a
condition to specified action or amendments to the applicable Amended
Declaration of such IPC Trust and (xi) any other relevant rights, preferences,
privileges, limitations or restrictions of Trust Preferred Securities issued by
such IPC consistent with the applicable amended Declaration of such IPC Trust or
with applicable law. Pursuant to the applicable Amended Declaration of such IPC
Trust, the Property Trustee will own the Subordinated Debt Securities of the
Company purchased by the applicable IPC Trust for the benefit of the holders of
the Trust Preferred Securities and the Trust Common Securities. The payment of
dividends out of money held by the IPC Trusts, and payments upon redemption of
Trust Preferred Securities or liquidation of any IPC Trust, will be guaranteed
by the Company to the extent described under "--Trust Guarantees."
Certain United States Federal income tax considerations applicable to an
investment in Trust Preferred Securities will be described in the Prospectus
Supplement relating thereto.
In connection with the issuance of Trust Preferred Securities, each IPC
Trust will also issue one series of Trust Common Securities. Each Amended
Declaration will authorize the Regular Trustees of an IPC Trust to issue on
behalf of such IPC Trust one series of Trust Common Securities having such
terms, including dividends, conversion, redemption, voting, liquidation rights
or such restrictions as shall be set forth therein. Except as otherwise provided
in the Prospectus Supplement relating to the Trust Preferred Securities, the
terms of the Trust Common Securities issued by such IPC Trust will be
substantially
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identical to the terms of the Trust Preferred Securities issued by such IPC
Trust, and the Trust Common Securities will rank PARI PASSU, and payments will
be made thereon PRO RATA with the Trust Preferred Securities, except that, upon
an event of default under the applicable Amended Declaration of such IPC Trust,
the rights of the holders of the Trust Common Securities to payment in respect
of dividends and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Trust Preferred Securities.
Except in certain limited circumstances, the Trust Common Securities will also
carry the right to vote and appoint, remove or replace any of the Trustees of
the related IPC Trust. All of the Trust Common Securities of each IPC Trust will
be directly or indirectly owned by the Company.
The applicable Prospectus Supplement will describe whether the Company
and/or certain of its subsidiaries maintain deposit accounts and conduct other
banking transactions, including borrowings in the ordinary course of business,
with the Property Trustee.
TRUST GUARANTEES
Set forth below is a summary of information concerning the Trust Guarantees
which will be executed and delivered by the Company, from time to time, for the
benefit of the holders of Trust Preferred Securities. The accompanying
Prospectus Supplement will describe any significant differences between the
actual terms of the Trust Guarantees and the summary below. The following
summary does not purport to be complete and is subject in all respects to the
provisions of, and is qualified in its entirety by reference to, the Trust
Guarantees, which is filed with the Commission and incorporated by reference as
an exhibit to the Registration Statement of which this Prospectus forms a part.
GENERAL. The Company will irrevocably and unconditionally agree, to the
extent set forth in the Trust Guarantees, to pay in full, to the holders of
Trust Preferred Securities of each IPC Trust, the Trust Guarantee Payments (as
defined below) (except to the extent paid by such IPC Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which such IPC Trust
may have or assert. The following payments with respect to the Trust Preferred
Securities to the extent not paid by the applicable IPC Trust (the "Trust
Guarantee Payments") will be subject to the Trust Guarantees (without
duplication): (i) any accrued and unpaid dividends which are required to be paid
on the Trust Preferred Securities of such IPC Trust, to the extent such IPC
Trust shall have funds legally available therefor, (ii) the redemption price,
including all accrued and unpaid dividends (the "Redemption Price"), payable out
of funds legally available therefor, with respect to any Trust Preferred
Securities called for redemption by such IPC Trust and (iii) upon a liquidation
of such IPC Trust (other than in connection with the distribution of
Subordinated Debt Securities of the Company to the holders of the Trust
Preferred Securities or the redemption of all of the Trust Preferred Securities
issued by such IPC Trust), the lesser of (a) the aggregate of the liquidation
preference and all accrued and unpaid dividends on the Trust Preferred
Securities of such IPC Trust to the date of payment and (b) the amount of assets
of such IPC Trust remaining available for distribution to holders of Trust
Preferred Securities of such IPC Trust in liquidation of such IPC Trust. The
Company's obligation to make a Trust Guarantee Payment may be satisfied by
direct payment of the required amounts by the Company to the holders of Trust
Preferred Securities or by causing the applicable IPC Trust to pay such amounts
to such holders.
COVENANTS OF THE COMPANY. In each Trust Guarantee, the Company will
covenant that, so long as any Trust Preferred Securities issued by the
applicable IPC Trust remain outstanding, if there shall have occurred any event
that would constitute an event of default under such Trust Guarantee or the
Amended and Restated Declaration of such IPC Trust, then (a) the Company shall
not declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or acquire or make a liquidation payment with respect to, any
of its capital stock (other than stock dividends paid by the Company which
consist of the stock of the same class as that on which any dividend is being
paid), (b) the Company shall not make any payment of principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the Company
which rank PARI PASSU with or junior to the Subordinated Debt Securities, and
(c) the
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Company shall not make any guarantee payments with respect to the foregoing
(other than pursuant to the Trust Guarantees).
AMENDMENT AND ASSIGNMENT. Except with respect to any changes which do not
adversely affect the rights of holders of Trust Preferred Securities of any IPC
Trust (in which case no vote will be required), the Trust Guarantees with
respect to the Trust Preferred Securities may be changed only with the prior
approval of the holders of not less than 66 2/3% in liquidation preference of
the outstanding Trust Preferred Securities of such IPC Trust. The manner of
obtaining any such approval of holders of the Trust Preferred Securities of such
IPC Trust will be as set forth in an accompanying Prospectus Supplement. All
guarantees and agreements contained in the Trust Guarantees shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the holders of the Trust Preferred Securities then
outstanding.
TERMINATION OF THE TRUST GUARANTEES. Each Trust Guarantee will terminate as
to the Trust Preferred Securities issued by the applicable IPC Trust (a) upon
full payment of the redemption price of all Trust Preferred Securities of such
IPC Trust, (b) upon distribution of the Subordinated Debt Securities of the
Company held by such IPC Trust to the holders of the Trust Preferred Securities
of such IPC Trust or (c) upon full payment of the amounts payable in accordance
with the Amended and Restated Declaration upon liquidation of such IPC Trust.
Each Trust Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of Trust Preferred Securities issued by
applicable IPC Trust must restore payment of any sums paid under such Trust
Preferred Securities or such Trust Guarantee. The subordination provisions of
the Subordinated Debt Securities and the Trust Guarantees, respectively, will
provide that in the event payment is made on the Subordinated Debt Securities or
the Trust Guarantees in contravention of such provisions, such payments will be
paid over to the holders of Senior Indebtedness.
RANKING OF THE TRUST GUARANTEES. Each Trust Guarantee will constitute an
unsecured obligation of the Company and will rank (i) subordinate and junior in
right of payment to all other liabilities of the Company, except any liabilities
that may be made PARI PASSU expressly by their terms, (ii) PARI PASSU with the
most senior preferred or preference stock now or hereafter issued by the Company
and with any guarantee now or hereafter entered into by the Company in respect
of any preferred or preference stock or interests of any affiliate of the
Company and (iii) senior to the Company's Common Stock. Each Amended Restated
Declaration will provide that each holder of Trust Preferred Securities by
acceptance thereof agrees to the subordination provisions and other terms of the
applicable Trust Guarantee.
Each Trust Guarantee will constitute a guarantee of payment and not of
collection. Each Trust Guarantee will be deposited with the Property Trustee to
be held for the benefit of the Trust Preferred Securities of the applicable IPC
Trust. The Property Trustee will have the right to enforce the Trust Guarantees
on behalf of the holders of the Trust Preferred Securities of the applicable IPC
Trust. The holders of not less than a majority in aggregate liquidation
preference of the Trust Preferred Securities of the applicable IPC Trust will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available in respect of the applicable Trust Guarantee, including
the giving of directions to the Property Trustee. If the Property Trustee fails
to enforce a Trust Guarantee as above provided, any holder of Trust Preferred
Securities of the applicable IPC Trust may institute a legal proceeding directly
against the Company to enforce its rights under such Trust Guarantee, without
first instituting a legal proceeding against the applicable IPC Trust, or any
other person or entity. Each Trust Guarantee will not be discharged except by
payment of the Trust Guarantee Payments in full to the extent not paid by the
applicable IPC Trust, and by complete performance of all obligations under such
Trust Guarantee.
GOVERNING LAW. Each Trust Guarantee will be governed by, and construed in
accordance with, the laws of the State of New York.
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PLAN OF DISTRIBUTION
The Company and/or the IPC Trusts, as the case may be, may sell Offered
Securities to or through underwriters or dealers and also may sell Offered
Securities directly to other purchasers or through agents. Any such underwriter
or agent involved in the offer and sale of the Offered Securities will be named
in an applicable Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. The Company and/or the IPC Trust, as the case may be, also
may, from time to time, authorize underwriters acting as the Company's and/or
the IPC Trust's agents to offer and sell the Offered Securities upon the terms
and conditions as shall be set forth in any Prospectus Supplement. In connection
with the sale of Offered Securities, underwriters may be deemed to have received
compensation from the Company and/or the IPC Trusts in the form of underwriting
discounts or commissions from purchasers of Offered Securities for whom they may
act as agent. Underwriters may sell Offered Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions
or commissions from the underwriters and/or commissions (which may be changed
from time to time) from the purchasers for whom they may act as agent.
Any underwriting compensation paid by the Company and/or the IPC Trusts to
underwriters or agents in connection with the offering of Offered Securities,
and any discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in an applicable Prospectus Supplement.
Underwriters, dealers and agents participating in the distribution of the
Offered Securities may be deemed to be underwriters, and any discounts and
commissions received by them and any profit realized by them on resale of the
Offered Securities may be deemed to be underwriting discounts and commissions
under the Securities Act. Underwriters, dealers and agents may be entitled,
under agreements with the Company and/or the IPC Trusts, to indemnification
against and contribution toward certain civil liabilities, including liabilities
under the Securities Act, and to reimbursement by the Company and/or the IPC
Trusts for certain expenses.
If so indicated in an applicable Prospectus Supplement, the Company and/or
the IPC Trusts will authorize dealers acting as the Company's and/or the IPC
Trust's agents to solicit offers by certain institutions to purchase Offered
Securities from the Company and/or the IPC Trusts at the public offering price
set forth in such Prospectus Supplement pursuant to Delayed Delivery Contracts
("Contracts") providing for payment and delivery on the date or dates stated in
such Prospectus Supplement. Each Contract will be for an amount specified in the
applicable Prospectus Supplement. Institutions with whom Contracts, when
authorized, may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and other institutions, but will in all cases be subject to the
approval of the Company and/or the IPC Trusts. Contracts will not be subject to
any conditions except (i) the purchase by an institution of the Offered
Securities covered by its Contracts shall not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States to which such
institution is subject, and (ii) if the Offered Securities are being sold to
underwriters, the Company and/or the IPC Trusts shall have sold to such
underwriters the amount of the Offered Securities specified in the applicable
Prospectus Supplement. Agents and underwriters will have no responsibility in
respect of the delivery or performance of Contracts. A commission as indicated
in the applicable Prospectus Supplement will be paid to underwriters and agents
soliciting purchases of Offered Securities pursuant to Contracts accepted by the
Company and/or the IPC Trusts.
Each underwriter, dealer and agent participating in the distribution of any
Offered Securities which are issuable in bearer form will agree that it will not
offer, sell or deliver, directly or indirectly, Offered Securities in bearer
form in the United States or to United States persons except as otherwise
permitted by Treasury Regulation Section 1.163-5(c)(2)(i)(D)).
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Any underwriters to whom Offered Securities are sold by the Company and/or
the IPC Trusts for public offering and sale may make a market in such Offered
Securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of the trading market for any Offered Securities.
The applicable Prospectus Supplement will describe whether certain of the
underwriters or agents and their associates may be customers of, engage in
transactions with and perform services for the Company in the ordinary course of
business.
VALIDITY OF SECURITIES
Unless otherwise indicated in the applicable Prospectus Supplement, the
validity of the Company Securities will be passed upon for the Company by James
W. Guedry, Esq., Associate Counsel of the Company. The validity of the Trust
Preferred Securities will be passed upon for the IPC Trusts by Skadden, Arps,
Slate, Meagher & Flom LLP, New York, New York, special counsel to the IPC
Trusts. The validity of the Offered Securities will be passed upon for any
underwriters or agents by Skadden, Arps, Slate, Meagher & Flom LLP, New York,
New York. Mr. Guedry does not own a material or significant amount of the
outstanding shares of International Paper Common Stock. He participates in
International Paper's Stock Option Plan and in its Salaried Savings Plan, having
an interest in a fund under that plan which invests in International Paper
Common Stock. prospectus and elsewhere in the
EXPERTS
The audited financial statements and schedules incorporated by reference in
prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said reports.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION:
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting compensation, are:
<TABLE>
<S> <C>
Registration Fee.................................................. $ 324,500
Printing and Engraving............................................ 75,000
Trustees' Fees and Expenses....................................... 21,000
Accountants' Fees and Expenses.................................... 20,000
Legal Fees and Expenses........................................... 150,000
Miscellaneous..................................................... 20,000
---------
Total........................................................... $ 610,500
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
THE COMPANY
Section 721 of the New York Business Corporation Law ("B.C.L.") provides
that, in addition to the indemnification provided in Article 7 of the B.C.L., a
corporation may indemnify a director or officer by a provision contained in its
certificate of incorporation or by-laws or by a duly authorized resolution of
its shareholders or directors or by agreement provided that no indemnification
may be made to or on behalf of any director or officer if a judgment or other
final adjudication adverse to the director or officer establishes that his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and material to the cause of action, or that such director or officer
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
Section 722(a) of the B.C.L. provides that a corporation may indemnify a
director or officer made, or threatened to be made, a party to any action other
than a derivative action, whether civil or criminal, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, in criminal actions or proceedings,
in addition, has no reasonable cause to believe that his conduct was unlawful.
Section 722(c) of the B.C.L. provides that a corporation may indemnify a
director or officer, made or threatened to be made a party in a derivative
action, against amounts paid in settlement and reasonable expenses actually and
necessarily incurred by him in connection with the defense or settlement of such
action or in connection with an appeal therein if such director or officer
acted, in good faith, for a purpose which he reasonably believed to be in, or
not opposed to, the best interests of the corporation, except that no
indemnification will be available under Section 722(c) of the B.C.L. in respect
of a threatened or pending action which is settled or otherwise disposed of or
any claims as to which such director or officer shall have been adjudged liable
to the corporation, unless and only to the extent that the court in which the
action was brought, or, if no action was brought, any court of competent
jurisdiction, determines, upon application, that, in view of all the
circumstances of the case, the director or officer is fairly and reasonably
entitled to indemnity for such portion of the settlement amount and expenses as
the court deems proper.
Section 723 of the B.C.L. specifies the manner in which payment of
indemnification under Section 722 of the B.C.L. or indemnification permitted
under Section 721 of the B.C.L. may be authorized by the corporation. It
provides that indemnification may be authorized by the corporation. It provides
that indemnification by a corporation is mandatory in any case in which the
director or officer has been successful, whether on the merits or otherwise, in
defending an action. In the event that the director or officer has not been
successful or the action is settled, indemnification must be authorized by the
appropriate corporate action as set forth in Section 723. Section 724 of the
B.C.L. provides that, upon
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application by a director or officer, indemnification may be awarded by a court
to the extent authorized under Sections 722 and 723. Section 725 of the B.C.L.
contains certain other miscellaneous provisions affecting the indemnification of
directors and officers.
Section 726 of the B.C.L. authorizes the purchase and maintenance of
insurance to indemnify (1) a corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the above
sections, (2) directors and officers in instances in which they may be
indemnified by a corporation under such sections, and (3) directors and officers
in instances in which they may not otherwise be indemnified by a corporation
under such sections, provided the contract of insurance covering such directors
and officers provides, in a manner acceptable to the New York State
Superintendent of Insurance, for a retention amount and for co-insurance.
Article VII of the Restated Certificate of Incorporation of International
Paper Company provides in part as follows:
"Each Director of the Corporation shall be indemnified by the
Corporation against expenses actually and necessarily incurred by him in
connection with the defense of any action, suit or proceeding in which he is
made a party by reason of his being or having been a Director of the
Corporation, except in relation to matters as to which he shall be adjudged
in such action, suit or proceeding to be liable for negligence or misconduct
in the performance of his duties as such Director, provided that such right
of indemnification shall not be deemed exclusive of any other rights to
which a Director of the Corporation may be entitled, under any by-law,
agreement, vote of stockholders or otherwise."
Article IX of the By-laws, as amended, of the Company provides as follows:
"The Corporation shall indemnify each Officer or Director who is made,
or threatened to be made, a party to any action by reason of the fact that
he or she is or was an Officer or Director of the Corporation, or is or was
serving at the request of the Corporation in any capacity for the
Corporation or any other enterprise, to the fullest extent permitted by
applicable law. The Corporation may, so far as permitted by law, enter into
an agreement to indemnify and advance expenses to any Officer or Director
who is made, or threatened to be made, a party to any such action."
The Company has purchased certain liability insurance for its officers and
directors as permitted by Section 726 of the B.C.L., has entered into indemnity
agreements with its directors and certain officers providing indemnification in
addition to that provided under the B.C.L., as permitted by Section 721 of the
B.C.L.
THE IPC TRUSTS
Each Amended Declaration pursuant to which each of the IPC Trusts is
organized will provide that no Regular Trustee, or affiliate of any Regular
Trustee, or officer, director, shareholder, member, partner, employee,
representative or agent of any Regular Trustee or of any such affiliate, or
employee or agent of each of the Trusts or its affiliates (each an "Indemnified
Person") shall be liable, responsible or accountable in damages or otherwise to
each of the Trusts or any employee or agent of each of the Trusts or its
affiliates for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of each of the Trusts and in a manner such Indemnified Person reasonably
believed to be within the scope of the authority conferred on such Indemnified
Person by each such Amended Declaration or by law, except that an Indemnified
Person shall be liable for such loss, damage or claim incurred by reason of such
Indemnified Person's gross negligence or willful misconduct with respect to such
act or omission. Each Amended Declaration also provides that to the fullest
extent permitted by applicable law, the Company shall indemnify and hold
harmless each Indemnified Person from and against any loss, damage or claim
incurred by such Indemnified Person by reason of any act or omission performed
or omitted by such Indemnified Person in good faith on behalf of
II-2
<PAGE>
each of the Trusts and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by each
such Amended Declaration, except that no Indemnified Person shall be entitled to
be indemnified in respect of any loss, damage or claim incurred by such
Indemnified Person by reason of gross negligence or willful misconduct with
respect to such act or omission. Each Amended Declaration further provides that,
to the fullest extent permitted by applicable law, expenses (including legal
fees) incurred by an Indemnified Person in defending any claim, demand, action,
suit or proceeding shall, from time to time, be advanced by the Company prior to
the final disposition of such claim, demand, action, suit or proceeding upon
receipt of an undertaking by or on behalf of the Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified for the underlying cause of action as authorized by
each such Amended Declaration.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
A list of Exhibits filed herewith is contained on the Exhibit Index and is
incorporated herein by reference.
(b) Financial Statement Schedules:
All schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission have been omitted because
they are not required, amounts which would otherwise be required to be shown
with respect to any item are not material, are inapplicable, or the required
information has already been provided elsewhere in the registration statement.
ITEM 17. UNDERTAKINGS.
The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in the
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
Provided, however, that paragraphs (1) (i) and (1) (ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the Registrants,
pursuant to Section 13 or Section 15 (d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial BONA FIDE offering thereof.
II-3
<PAGE>
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new Registration
Statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial BONA FIDE offering
thereof.
(5) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrants pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(6) That, for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions described in Item 15 above, the
Registrants have been informed that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrants of expenses incurred or paid by a director, officer or controlling
person of the Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrants will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Purchase and the State of New York, on
the 1st day of September, 1998.
<TABLE>
<S> <C> <C>
INTERNATIONAL PAPER COMPANY
By: /s/ JAMES W. GUEDRY
-----------------------------------------
James W. Guedry
VICE PRESIDENT AND SECRETARY
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or amendment thereto has been signed below on the 1st day
of September, 1998 by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
NAME TITLE
- ------------------------------ --------------------------
<C> <S> <C>
/s/ JOHN T. DILLON*
- ------------------------------ Chairman, Chief Executive
(John T. Dillon) Officer and Director
/s/ C. WESLEY SMITH*
- ------------------------------ Executive Vice President
(C. Wesley Smith) and Director
/s/ PETER I. BIJUR*
- ------------------------------ Director
(Peter I. Bijur)
- ------------------------------ Director
(Willard C. Butcher)
/s/ ROBERT J. EATON*
- ------------------------------ Director
(Robert J. Eaton)
/s/ JOHN A. GEORGES*
- ------------------------------ Director
(John A. Georges)
/s/ THOMAS C. GRAHAM*
- ------------------------------ Director
(Thomas C. Graham)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
NAME TITLE
- ------------------------------ --------------------------
/s/ JOHN R. KENNEDY*
- ------------------------------ Director
(John R. Kennedy)
<C> <S> <C>
/s/ DONALD F. MCHENRY *
- ------------------------------ Director
(Donald F. McHenry )
/s/ PATRICK F. NOONAN*
- ------------------------------ Director
(Patrick F. Noonan)
- ------------------------------ Director
(Jane C. Pfeiffer)
/s/ EDMUND T. PRATT, JR.*
- ------------------------------ Director
(Edmund T. Pratt, Jr.)
/s/ CHARLES R. SHOEMATE*
- ------------------------------ Director
(Charles R. Shoemate)
/s/ MARIANNE M. PARRS*
- ------------------------------ Senior Vice President and
(Marianne M. Parrs) Chief Financial Officer
/s/ ANDREW R. LESSIN* Vice President and
- ------------------------------ Controller Chief and
(Andrew R. Lessin) Accounting Officer
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ JAMES W. GUEDRY
-------------------------
(James W. Guedry)
ATTORNEY-IN-FACT
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, International
Paper Capital Trust III and International Paper Capital Trust IV each certify
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized, in the City
of Purchase and the State of New York on the 1st day of September, 1998.
<TABLE>
<S> <C> <C>
INTERNATIONAL PAPER CAPITAL TRUST III,
a Delaware business trust
By: International Paper Company, as Depositor
By: /s/ JAMES W. GUEDRY
-----------------------------------------
James W. Guedry
VICE PRESIDENT AND SECRETARY
INTERNATIONAL PAPER CAPITAL TRUST IV,
a Delaware business trust
By: International Paper Company, as Depositor
By: /s/ JAMES W. GUEDRY
-----------------------------------------
James W. Guedry
VICE PRESIDENT AND SECRETARY
</TABLE>
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement (Standard Provisions) for Debt Securities (incorporated herein by
reference to Exhibit 1.1 to International Paper Company's Registration Statement on Form S-3 (File No.
33-52945)).
1.2 Form of Underwriting Agreement (Standard Provisions) for Preferred Stock (incorporated herein by
reference to Exhibit 1.2 to International Paper Company's Registration Statement on Form S-3 (File No.
33-52945)).
1.3 Form of Underwriting Agreement (Standard Provisions) for Common Stock (incorporated herein by reference
to Exhibit 1.3 to International Paper Company's Registration Statement on Form S-3 (File No. 33-52945)).
1.4 Underwriting Agreement for Trust Preferred Securities.**
3.1 Restated Certificate of Incorporation of International Paper Company (incorporated herein by reference to
Exhibit 3(A) to International Paper Company's Form 8-K dated November 20, 1990).
3.2 By Laws of International Paper Company (incorporated herein by reference to Exhibit 3(B) to International
Paper Company's Form 8-K dated November 20, 1990).
4.1 Form of Certificate for shares of International Paper Company's Common Stock (incorporated herein by
reference to Exhibit 4(A) to International Paper Company's Registration Statement on Form S-3 (File No.
33-44855)).
4.2 Form of Indenture for Senior Debt Securities between International Paper Company and The Chase Manhattan
Bank, N.A., as Trustee, including forms of Senior Debt Securities (incorporated herein by reference to
Exhibit 4.5 to International Paper Company's Registration Statement on Form S-3 (File No. 33-52945)).
4.3 Form of Indenture for Subordinated Debt Securities between International Paper Company and The Chase
Manhattan Bank, N.A., as Trustee, including forms of Subordinated Debt Securities (incorporated herein by
reference to Exhibit 4.6 to International Paper Company's Registration Statement on Form S-3 (File No.
33-52945)).
4.4 Form of Indenture for Senior Debt Securities of International Paper Company, including forms of Senior
Debt Securities.*
4.5 Form of Indenture for Subordinated Debt Securities of International Paper Company, including forms of
Subordinated Debt Securities.*
4.6 Form of Deposit Agreement, including the form of Depositary Receipt (incorporated herein by reference to
Exhibit 4.9 to International Paper Company's Registration Statement on Form S-3 (File No. 33-52945)).
4.7 Certificate of Trust of International Paper Capital Trust III.*
4.8 Certificate of Trust of International Paper Capital Trust IV.*
4.9 Declaration of Trust for IPC Trust III.*
4.10 Declaration of Trust for IPC Trust IV.*
4.11 Form of Amended and Restated Declaration of Trust for IPC Trust III.*
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ----------- ---------------------------------------------------------------------------------------------------------
<C> <S>
4.12 Form of Amended and Restated Declaration of Trust for IPC Trust IV.*
4.13 Form of Guarantee Agreement for IPC Trust III.*
4.14 Form of Guarantee Agreement for IPC Trust IV.*
5.1 Opinion of James W. Guedry, Esq., Associate General Counsel of the Company.**
5.2 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the IPC Trusts.**
12.1 Statements re: Computation of Ratio of Earnings to Fixed Charges (incorporated herein by reference to
Exhibit 12 to International Paper Company's Form 10-K for the year ended December 31, 1997 and to Exhibit
12 to International Paper Company's Form 10-Q for the quarter ended June 30, 1998).
23.1 Consent of Arthur Andersen LLP*
23.2 Consent of James W. Guedry, Esq., Associate General Counsel of the Company.**
23.3 Consent of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel to the IPC Trusts. **
24.1 Powers of Attorney of certain officers and directors.*
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Chase
Manhattan Bank, N.A., the trustee under the Senior Indenture (incorporated herein by reference to Exhibit
25.1 to International Paper Company's Registration Statement on Form S-3 (File No. 33-52945)).
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Chase
Manhattan Bank, N.A., the trustee under the Subordinated Indenture (incorporated herein by reference to
Exhibit 25.2 to International Paper Company's Registration Statement on Form S-3 (File No. 33-52945)).
25.3 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of
New York, the trustee under the Amended and Restated Declaration of Trust of International Paper Capital
Trust III.*
25.4 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of
New York, the trustee under the Amended and Restated Declaration of Trust of International Paper Capital
Trust IV.*
25.5 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of
New York, the trustee under the Guarantee of the Company for the benefit of the holders of Trust
Preferred Securities of International Paper Capital Trust III.*
25.6 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of The Bank of
New York, the trustee under the Guarantee of the Company for the benefit of the holders of Trust
Preferred Securities of International Paper Capital Trust IV.*
25.8 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of ,
the trustee under the Senior Indenture.**
25.9 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of ,
the trustee under the Subordinated Indenture.**
</TABLE>
- ------------------------
* Filed herewith.
** To be filed either by amendment or as an exhibit to an Exchange Act report
and incorporated herein by reference.
II-9
<PAGE>
Exhibit 4.4
- --------------------------------------------------------------------------------
INTERNATIONAL PAPER COMPANY
TO
[ ]
Trustee
------------
Indenture
Dated as of [ ]
------------
Senior Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
INTERNATIONAL PAPER COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ]
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.
2
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.....................................................1
Act ............................................................2
Affiliate ......................................................2
Attributable Debt ..............................................2
Authenticating Agent ...........................................3
Authorized Newspaper ...........................................3
Bearer Security ................................................3
Board of Directors .............................................3
Board Resolution ...............................................3
Book--Entry Security ...........................................3
Business Day ...................................................3
Change in Control ..............................................4
Commission .....................................................4
Common Stock ...................................................4
Company ........................................................4
Company Request or Company Order ...............................4
Continuing Director ............................................4
Corporate Trust Office .........................................5
Corporation ....................................................5
Coupon .........................................................5
Defaulted Interest .............................................5
Depositary .....................................................5
Dollar or $ ....................................................5
Euro-clear .....................................................5
Event of Default ...............................................5
Exchange Date ..................................................5
Exercise Period ................................................5
Forestlands ....................................................5
Funded Debt ....................................................5
Holder .........................................................6
Indenture ......................................................6
Interest .......................................................6
Interest Payment Date ..........................................6
Maturity .......................................................6
Officer's Certificate ..........................................6
Opinion of Counsel .............................................6
Original Issue Discount Security ...............................7
Outstanding ....................................................7
Paying Agent ...................................................8
Person .........................................................8
Place of Payment ...............................................8
Predecessor Security ...........................................8
Principal Manufacturing Facility ...............................9
Redemption Date ................................................9
Redemption Price ...............................................9
Registered Security ............................................9
Regular Record Date ............................................9
Responsible Officer ............................................9
Securities ....................................................10
i
<PAGE>
Page
----
Security Register and Security Registrar ......................10
Special Record Date ...........................................10
Stated Maturity ...............................................10
Subsidiary ....................................................10
Trustee .......................................................11
Trust Indenture Act ...........................................11
United States .................................................11
United States Alien ...........................................11
U.S. Government Obligations ...................................11
Vice President ................................................12
Yield to Maturity .............................................12
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS............................8
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE..........................8
SECTION 1.4 ACTS OF HOLDERS.................................................9
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY..........................12
SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER........................12
SECTION 1.7 LANGUAGE OF NOTICES, ETC.......................................13
SECTION 1.8 CONFLICT WITH TRUST INDENTURE ACT..............................13
SECTION 1.9 EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................13
SECTION 1.10 SUCCESSORS AND ASSIGNS.........................................13
SECTION 1.11 SEPARABILITY CLAUSE............................................13
SECTION 1.12 BENEFITS OF INDENTURE..........................................13
SECTION 1.13 GOVERNING LAW..................................................13
SECTION 1.14 LEGAL HOLIDAYS.................................................13
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY................................................14
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION................14
SECTION 2.3 SECURITIES IN GLOBAL FORM......................................15
SECTION 2.4 FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.......................16
SECTION 2.5 FORM OF CONVERSION NOTICE......................................16
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES...........................16
SECTION 3.2 DENOMINATIONS..................................................19
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.................19
SECTION 3.4 TEMPORARY SECURITIES...........................................21
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE.......................................................23
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES
AND COUPONS....................................................26
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.................27
SECTION 3.8 PERSONS DEEMED OWNERS..........................................28
SECTION 3.9 CANCELLATION...................................................28
SECTION 3.10 COMPUTATION OF INTEREST........................................29
SECTION 3.11 ELECTRONIC SECURITY ISSUANCE...................................29
ARTICLE IV
SATISFACTION AND DISCHARGE
ii
<PAGE>
Page
----
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE........................29
SECTION 4.2 APPLICATION OF TRUST MONEY.....................................30
SECTION 4.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES
OF ANY SERIES..................................................30
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT..............................................33
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............34
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT
BY TRUSTEE.....................................................35
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM...............................36
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS..........................................36
SECTION 5.6 APPLICATION OF MONEY COLLECTED.................................37
SECTION 5.7 LIMITATION ON SUITS............................................37
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST...........................................38
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.............................38
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.................................38
SECTION 5.11 DELAY OR OMISSION NOT WAIVER...................................38
SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES...............................38
SECTION 5.13 WAIVER OF PAST DEFAULTS........................................39
SECTION 5.14 UNDERTAKING FOR COSTS..........................................39
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS...............................39
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN RIGHTS OF TRUSTEE......................................40
SECTION 6.2 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURI-
TIES...........................................................41
SECTION 6.3 MAY HOLD SECURITIES............................................41
SECTION 6.4 MONEY HELD IN TRUST............................................41
SECTION 6.5 COMPENSATION AND REIMBURSEMENT.................................41
SECTION 6.6 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............42
SECTION 6.7 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................43
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS........................44
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY........................44
SECTION 6.10 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..............44
SECTION 6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS.......................................................44
SECTION 6.12 APPOINTMENT OF AUTHENTICATING AGENT............................45
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS........................................................46
SECTION 7.2 REPORTS BY TRUSTEE.............................................47
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE,
TRANSFER OR OTHER DISPOSITION
iii
<PAGE>
Page
----
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN
TERMS..........................................................48
SECTION 8.2 SUCCESSOR SUBSTITUTED..........................................49
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.............49
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................50
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES...........................51
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES..............................51
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT............................52
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.............52
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.....................52
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY................................52
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............53
SECTION 10.4 ADDITIONAL AMOUNTS.............................................55
SECTION 10.5 EXISTENCE......................................................55
SECTION 10.6 PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY................55
SECTION 10.7 LIMITATION ON LIENS............................................56
SECTION 10.8 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.................59
SECTION 10.9 STATEMENT BY OFFICERS AS TO DEFAULT............................59
SECTION 10.10 WAIVER OF CERTAIN COVENANTS....................................59
SECTION 10.11 DEFEASANCE OF CERTAIN OBLIGATIONS..............................59
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.......................................61
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................61
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............61
SECTION 11.4 NOTICE OF REDEMPTION...........................................62
SECTION 11.5 DEPOSIT OF REDEMPTION PRICE....................................63
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE..........................63
SECTION 11.7 SECURITIES REDEEMED IN PART....................................64
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.......................................64
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURI
TIES...........................................................64
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND......................65
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED......................65
SECTION 13.2 CALL, NOTICE AND PLACE OF MEETINGS.............................65
SECTION 13.3 PERSONS ENTITLED TO VOTE AT MEETINGS...........................66
SECTION 13.4 QUORUM; ACTION.................................................66
iv
<PAGE>
Page
----
SECTION 13.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AN ADJOURN-
MENT OF MEETINGS...............................................67
SECTION 13.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS................68
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 APPLICABILITY OF ARTICLE.......................................68
SECTION 14.2 REDEMPTION AT OPTION OF HOLDERS UPON A CHANGE IN
CONTROL OF THE COMPANY.........................................68
SECTION 14.3 NOTICE OF CHANGE IN CONTROL....................................69
SECTION 14.4 DEPOSIT OF REDEMPTION PRICE....................................69
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 APPLICABILITY OF ARTICLE.......................................69
SECTION 15.2 EXERCISE OF CONVERSION PRIVILEGE...............................70
SECTION 15.3 NO FRACTIONAL SHARES...........................................71
SECTION 15.4 ADJUSTMENT OF CONVERSION PRICE.................................71
SECTION 15.5 NOTICE OF CERTAIN CORPORATE ACTIONS............................72
SECTION 15.6 RESERVATION OF SHARES OF COMMON STOCK..........................72
SECTION 15.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION.......................72
SECTION 15.8 NONASSESSABILITY...............................................73
SECTION 15.9 EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION
PRIVILEGE......................................................73
SECTION 15.10 DUTIES OF TRUSTEE REGARDING CONVERSION.........................74
SECTION 15.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.....................74
(1) Note: This table of contents shall not, for any purpose, be deemed to be a
Part of the indenture
v
<PAGE>
INDENTURE, dated as of [ ], 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 [ ], 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.
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"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 (1) the Company
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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.
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"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:
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(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.
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"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
pulpmill or any paper converting plant of the Company or any Subsidiary which
is located within the United States, other than any such mill or plant or
portion thereof which is financed by obligations issued by a State, a Territory,
or a possession of the United States, or any political subdivision of any of the
foregoing, or the District of Columbia, the interest on which is excludable from
gross income of the holders thereof pursuant to the provisions of Section 1.3(a)
of the Internal Revenue Code (or any successor to such provision) as in effect
at the time of issuance of such obligations, or which, in the opinion of the
Board of Directors, is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registered Security" means any Security in the form set forth in either
Exhibit A or Exhibit B to this Indenture or established pursuant to Section 2.1
which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 3.1, whether or not such a day is a
Business Day.
"Responsible Officer", when used with respect to the Trustee, means 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.
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"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".
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"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
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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
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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
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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 instru-
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ment, 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.
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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.
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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.
[ ],
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,
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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.
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ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 3.3,
set forth, or determined in the manner provided, in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(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
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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
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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
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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.
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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
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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
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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
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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
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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 registrable 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
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(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.
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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
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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.
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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
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(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i),
(ii) or (iii) above, has deposited or caused to be deposited
with the Trustee as trust funds in trust for the purpose, an
amount sufficient to pay and discharge the entire
indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and
premium, if any) and any interest to the date of such deposit
(in the case of Securities which have become due and payable)
or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 10.3 shall survive.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
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
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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
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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.
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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
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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.
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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
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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.
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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.
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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.
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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;
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(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
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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, disburse ment 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.
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(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
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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).
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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
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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.
[ ],
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
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(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).
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SECTION 7.2 REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE,
TRANSFER OR OTHER DISPOSITION
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS.
The Company shall not consolidate or merge with or into any other Person
or sell, lease, transfer or otherwise dispose of its assets substantially as an
entirety to any Person, and the Company shall not permit any Person to
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
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(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
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(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
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(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.
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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
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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
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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
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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
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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 Leaseback
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
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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.
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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
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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.
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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;
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(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
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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
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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
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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 662/3%
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,
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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.
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(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
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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
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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.
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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.
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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
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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
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By:
-------------------------------
Title
[Seal]
Attest:
- ---------------------------------
Assistant Secretary
[ ]
as Trustee
By:
-------------------------------
Title
[Seal]
Attest:
- ---------------------------------
Assistant Secretary
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STATE OF NEW YORK )
) ss.:
COUNTY OF WESTCHESTER )
On the ____ day of _____, 1994, before me personally came ___________, to
me known, who, being by me duly sworn, did depose and say that he is ________ of
International Paper Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
[Seal]
______________________________________
Notary Public, State of New York
Qualified in
________________
___________________________________________
Commission Expires
_________________________
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _____, 1994, before me personally came ____________, to
me known, who, being by me duly sworn, did depose and say that he is _________
of [ ], one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
[Seal]
______________________________________
Notary Public, State of New York
Qualified in
________________
___________________________________________
Commission Expires
_________________________
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EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ___________ or registered assigns, the
principal sum of __________ [United States] Dollars on _________, and to pay
interest thereon from _______, 19__ or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, [semi-annually in
arrears on __________ and __________ in each year] [annually in arrears on
__________ in each year], commencing ________, 19__, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment [If
applicable, insert-- and (to the extent that the payment of such interest shall
be legally enforce able) 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
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:__________________
INTERNATIONAL PAPER COMPANY
[Seal] By
----------------------------------
Name:
Title:
Attest:
- -----------------------------
[Form of Reverse]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ] (herein called the "Indenture"),
between the Company and [ ], as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities [If the
Securities of the series are also issuable as Bearer Securities, insert--and any
coupons appertaining thereto] and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
[U.S.]$_____]. [If the Securities of the series are also issuable as Bearer
Securities, insert--The Securities of this series are issuable as Bearer
Securities [, with interest coupons attached,] in the denomination of
U.S.$__________, 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,
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<PAGE>
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 Redemption Price
for Redemption for Redemption
Through Operation Through Operation
of the of the
Year Sinking Fund Year 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
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<PAGE>
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,
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<PAGE>
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 series bear interest at a fixed rate. 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,
insertSubject 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
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<PAGE>
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.]
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<PAGE>
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--
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<PAGE>
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.
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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.
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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 under signed 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. $_______
Dated: ________________
-------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock
are to be delivered, or Securities to
be issued, other than to and in the
name of the registered owner.
-------------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
A-12
<PAGE>
________________________________________________________________________________
Social Security or other (NAME)
________________________________________________________________________________
Taxpayer Identification Number
________________________________________________________________________________
(ADDRESS)
________________________________________________________________________________
PLEASE PRINT NAME AND ADDRESS (INCLUDING ZIP CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other Securities of the Company.]
A-13
<PAGE>
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, 19__ [,--AND] THE YIELD TO
MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD IS ___________ AND
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT APPLICABLE TO THE SHORT ACCRUAL PERIOD OF
___________, 19__ TO _______, 19__ IS __% OF THE PRINCIPAL AMOUNT OF THIS
SECURITY].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to _____________________, or registered
assigns, the principal sum of ______________________________ [United States]
Dollars on _____________________ [If the Security is interest-bearing, insert--,
and to pay interest thereon from ___________, 19__ or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
[semi-annually in arrears on ________________ and in each year] [annually in
arrears on _____________________ in each year], commencing _______, 19__, at the
rate of ____% per annum, until the principal hereof is paid or made available
for payment [If applicable, insert--, and (to the extent that the payment of
such interest shall be legally enforceable) at the rate of ____% per annum on
any overdue principal [and premium] and on any overdue instalment of interest].
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
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
B-1
<PAGE>
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
B-2
<PAGE>
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.]
B-3
<PAGE>
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Security shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_______________________
INTERNATIONAL PAPER COMPANY
[Seal] By
--------------------------------
Attest:
- -----------------------------
B-4
<PAGE>
[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 [ ](herein called the "Indenture"),
between the Company and [ ], as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities [If the
Securities of the series are also issuable as Bearer Securities, insert--and any
coupons appertaining thereto] and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof [, limited in aggregate principal amount to
[U.S.]$______]. [If Securities of the series are issuable as Bearer Securities,
insert--The Securities of this series are issuable as Bearer Securities [, with
interest coupons attached,] in the denomination of U.S.$__________, and as
Registered Securities, without coupons, in denominations of U.S.$__________ and
any integral multiple thereof. As provided in the Indenture and subject to
certain limitations therein set forth, Bearer Securities and Registered
Securities of this series are exchangeable for a like aggregate principal amount
of Registered Securities of this series and of like tenor of any authorized
denominations, as requested by the Holder surrendering the same, upon surrender
of the Security or Securities to be 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].
B-5
<PAGE>
[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 Redemption Price
for Redemption for Redemption
Through Operation Through Operation
of the of the
Year Sinking Fund Year 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
B-6
<PAGE>
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 ----------------------
* This provision will only be applicable if the Securities of the series are
interest-bearing and generally only if the Securities bear interest as a
fixed rate.
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
B-7
<PAGE>
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 with holding 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
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
- --------
* This provision will only be applicable if the Securities of the series
are not to bear interest prior to Maturity.
B-8
<PAGE>
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 require ment, in which case the Company
will promptly notify the Trustee, which will promptly give notice of that
determination in the manner described below, and any earlier redemption notice
will thereupon be revoked and of no further effect.]
[If applicable, insert the sinking fund for this series provides for the
redemption on _______________ in each year, beginning with the year ____ and
ending with the year ____ of [not less than] [U.S.]$______[("mandatory sinking
fund") and not more than [U.S.]$______] aggregate principal amount of Securities
of this series. [Securities of this series acquired or redeemed by the Company
otherwise than through [mandatory] sinking fund payments may be credited against
subsequent [mandatory] sinking fund payments otherwise required to be made--in
the inverse order in which they become due.]]
Notice of redemption will be given by 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,
insertSubject 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
B-9
<PAGE>
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
B-10
<PAGE>
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
B-11
<PAGE>
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 $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If the Securities of the series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
B-12
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated:_______________________
------------------------------
Signature
multiple thereof)
If only a portion of this Security is submitted for redemption, please
indicate:
1. Principal Amount submitted for redemption: U.S.$_________________________
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.
B-13
<PAGE>
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If this Notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date (unless this Security
or the portion thereof being converted has been called for redemption on a
Redemption Date within such period), this Notice is accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted (in an integral multiple of U.S. $________
[INSERT MINIMUM DENOMINATION], if less than all): U.S. $_______
Dated:______________________
-------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock
are to be delivered, or Securities to
be issued, other than to and in the
name of the registered owner.
-------------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
B-14
<PAGE>
________________________________________________________________________________
Social Security or other (NAME)
________________________________________________________________________________
Taxpayer Identification Number
________________________________________________________________________________
(ADDRESS)
________________________________________________________________________________
PLEASE PRINT NAME AND ADDRESS (INCLUDING ZIP CODE NUMBER)
B-15
<PAGE>
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY AND
FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
No. B U.S.$
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to bearer upon presentation and surrender
of this Security the principal sum of _____Thousand United States Dollars on
_____ and to pay interest thereon, from the date hereof, [semi-annually in
arrears on ______ and _______ in each year] [annually in arrears on ______ in
each year], commencing ______, 19__, at the rate of __% per annum, until the
principal hereof is paid or made available for payment [If applicable, insert -,
and (to the extent that the payment of such interest shall be legally
enforceable) at the rate of __% per annum on any overdue principal and premium
and on any overdue installment of interest]. Such payments [(including premium,
if any)] shall be made, subject to any laws or regulations applicable thereto
and to the right of the Company (limited as provided in the Indenture) to
rescind the designation of any such Paying Agent, at the [main] offices of _____
in ____, ___ in ____, ______ in ______, and ______ in ______, or at such other
offices or agencies outside the United States (as defined below) as the Company
may designate, at the option of the Holder, by United States dollar check drawn
on a bank in The City of New York or by transfer of United States dollars to an
account maintained by the payee with a bank located outside the United States.
Interest on this 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
C-1
<PAGE>
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
(e) 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 nonresident alien individual or a
non-resident alien fiduciary of a foreign estate or trust, and the term "United
States" means the United States of America (including the States and the
District of Columbia), its territories and its possessions. [Notwithstanding the
foregoing, if and so long as a certification, identification or other
information reporting requirement referred to in the [fourth] [fifth] paragraph
on the reverse hereof
C-2
<PAGE>
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:
- ---------------------
C-3
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ](herein called the "Indenture"),
between the Company and [ ], as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities 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).]
C-4
<PAGE>
[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
C-5
<PAGE>
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
- --------
* Generally this provision will only be applicable if the Securities of the
series bear interest at a fixed rate.
C-6
<PAGE>
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 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,
insertSubject 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
C-7
<PAGE>
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 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
C-8
<PAGE>
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.
C-9
<PAGE>
The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
C-10
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction is being given in exercise of the Holder's option to
require redemption of this Security to the extent provided in such Indenture
upon a Change in Control of the Company.
Dated: _____________________
----------------------------------------
Signature
NOTE: EXERCISE OF THE OPTION TO REQUIRE REDEMPTION IS IRREVOCABLE.
C-11
<PAGE>
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If this Notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date (unless this Security
or the portion thereof being converted has been called for redemption on a
Redemption Date within such period), this Notice is accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted
(in an integral multiple of
U.S. $_______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S. $_______
Dated: ________________________
------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
the registered owner.
------------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
C-12
<PAGE>
________________________________________________________________________________
Social Security or other (NAME)
________________________________________________________________________________
Taxpayer Identification Number
________________________________________________________________________________
(ADDRESS)
________________________________________________________________________________
PLEASE PRINT NAME AND ADDRESS (INCLUDING ZIP CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for
conversion into other securities of the Company.]
C-13
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
U.S.$_________
Due _________
Unless the Security to which this coupon appertains shall have been called
for previous redemption and payment thereof duly provided for on the date set
forth hereon, International Paper Company (herein called the "Company") will pay
to bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
at the Paying Agents set out on the reverse hereof or at such other offices or
agencies (which, except as otherwise provided in the Security to which this
coupon appertains, shall be located outside the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (the "United States"))
as the Company may designate from time to time, at the option of the Holder, by
United States dollar check drawn on the bank in The City of New York or by
transfer of United States dollars to an account maintained by the payee with a
bank located outside the United States, being [one year's] interest then payable
on the said Security.
INTERNATIONAL PAPER COMPANY
By
-----------------------------------
C-14
<PAGE>
[Reverse of Coupon]*
______________________________
______________________________
______________________________
______________________________
______________________________
- --------
* Insert names and addresses of initial Paying Agents located outside the
United States
C-15
<PAGE>
EXHIBIT D
[FORM OF BEARER SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY
AND FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE. FOR
PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL
AMOUNT, THE ISSUE DATE IS , 19 [,--AND THE YIELD TO MATURITY IS %].
INTERNATIONAL PAPER COMPANY
No. B U.S.$
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein call the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to bearer upon presentation and surrender
of this Security the principal sum of Thousand United States Dollars
on . [If the Security is interest-bearing, insert--, and to
pay interest thereon, from the date hereof, [semi-annually in arrears on
and in each year] [annually in arrears on
in each year], commencing , 19 , at the rate of %
per annum, until the principal hereof is paid or made available for payment [If
applicable, insert--, and (to the extent that the payment of such interest shall
be legally enforceable) at the rate of % per annum on any overdue principal
and premium and on any overdue instalment of interest]]. [If the Security is not
to bear interest prior to Maturity, insert- The principal of this Security shall
not bear interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at Stated Maturity, and in such case the
overdue principal of this Security shall bear interest at the rate of % per
annum (to the extent that the 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
D-1
<PAGE>
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
D-2
<PAGE>
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
D-3
<PAGE>
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:
- ---------------------------
D-4
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ](herein called the
"Indenture"), between the Company and [ ], as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities 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
D-5
<PAGE>
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
D-6
<PAGE>
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
- --------
* This provision will only be applicable if the Securities of the series are
interest-bearing and generally only if the Securities bear interest at a
fixed rate.
D-7
<PAGE>
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
- --------
* This provision will only be applicable if the Securities of the series
are not to bear interest prior to Maturity.
D-8
<PAGE>
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 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,
insertSubject 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
D-9
<PAGE>
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, 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
D-10
<PAGE>
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
D-11
<PAGE>
interest-bearing, insert--or such coupon] is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
D-12
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction is being given in exercise of the Holder's option to
require redemption of this Security to the extent provided in such Indenture
upon a Change in Control of the Company.
Dated: _____________________
-------------------------------------
Signature
Note: Exercise of the option to require redemption is irrevocable.
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. $_______
Dated: _____________________
D-13
<PAGE>
------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered owner.
------------------------------------
Signature Guaranty
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
________________________________________________________________________________
Social Security or other (NAME)
________________________________________________________________________________
Taxpayer Identification Number
________________________________________________________________________________
(ADDRESS)
________________________________________________________________________________
PLEASE PRINT NAME AND ADDRESS (INCLUDING ZIP CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for
conversion into other securities of the Company.]
D-14
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1954, AS
AMENDED.
INTERNATIONAL PAPER COMPANY
U.S.$_________
Due___________
Unless the Security to which this coupon appertains shall have been called
for previous redemption and payment thereof duly provided for on the date set
forth hereon, International Paper Company (herein called the "Company") will pay
to bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
at the Paying Agents set out on the reverse hereof or at such other offices or
agencies (which, except as otherwise provided in the Security to which this
coupon appertains, shall be located outside the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (the "United States"))
as the Company may designate from time to time, at the option of the Holder, by
United States dollar check drawn on a bank in The City of New York or by
transfer of United States dollars to an account maintained by the payee with a
bank located outside the United States, being [one year's] interest then payable
on said Security.
INTERNATIONAL PAPER COMPANY
By
--------------------------------
D-15
<PAGE>
[Reverse of Coupon]*
_______________________
_______________________
_______________________
_______________________
_______________________
- --------
* Insert names and addresses of initial Paying Agents located outside the
United States.
D-16
<PAGE>
EXHIBIT E
[Forms of Certification]
E-1
<PAGE>
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)]
E.1-1
<PAGE>
[Name of Person Entitled to
Receive Bearer Security]
-----------------------------
(Authorized Signatory)
Name:
Title:
E.1-2
<PAGE>
EXHIBIT E.2
[Form of Certificate to Be Given by Euro-Clear
and Cedel S.A. in Connection with the Exchange of a
Portion of a Temporary Global Security]
CERTIFICATE
------------------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $ principal amount of the
abovecaptioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the 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
---------------------------------------
E.2-1
<PAGE>
EXHIBIT E.3
[Form of Certificate to Be Given by Euro-Clear and
Cedel S.A. to Obtain Interest Prior to an Exchange Date]
CERTIFICATE
------------------------------------
[Insert title or sufficient description of Securities]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Dated: , 19
[To be dated on or after the
relevant Interest Payment Date]
[MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
Brussels Office, as Operator of the
Euro-clear System] [Cedel S.A.]
By
---------------------------------------
E.3-1
<PAGE>
EXHIBIT E.4
[Form of Certificate to Be Given by Beneficial Owners to
Obtain Interest Prior to an Exchange Date]
CERTIFICATE
------------------------------------
[Insert title or sufficient description of Securities]
This is to certify that as of the Interest Payment Date on [Insert date]
and except as provided in the third paragraph hereof, none of the
above-captioned Securities held by you for our account was beneficially owned by
a United States Person or, if any of such Securities held by you for our account
were benefi cially owned by a United States Person, such United States Person
either provided an Internal Revenue Service Form W-9 with respect to such
interest payment or certified with respect to such interest payment that it was
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury Regulations.
As used herein, "United States Person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S. $
principal amount of the above-captioned Securities appearing in your books as
being held for our account as to which we are not yet able to certify and as to
which we understand interest cannot be credited unless and until we are able so
to certify.
E.4-1
<PAGE>
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
[To be dated on or after the relevant
Interest Payment Date]
[Name of Person Entitled to
Receive Interest]
---------------------------------------
(Authorized Signatory)
Name:
Title:
E.4-2
<PAGE>
EXHIBIT 4.5
- --------------------------------------------------------------------------------
INTERNATIONAL PAPER COMPANY
TO
[ ]
Trustee
-------------
Indenture
Dated as of [ ]
-------------
Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
INTERNATIONAL PAPER COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of [ ]
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
Section 310(a)(1) ....................................... 6.9
(a)(2) ....................................... 6.9
(a)(3) ....................................... Not Applicable
(a)(4) ....................................... Not Applicable
(b) ....................................... 6.8
Section 311(a) ....................................... 6.10
(b) ....................................... 6.10
(b)(2) ....................................... 6.10
Section 312(a) ....................................... 7.1(a)
(b) ....................................... 7.1(b)
(c) ....................................... 7.1(c)
Section 313(a) ....................................... 7.2
(b) ....................................... 7.2
(c) ....................................... 7.2
(d) ....................................... 7.2
Section 314(a) ....................................... Not Applicable
(b) ....................................... Not Applicable
(c)(1) ....................................... 1.2
(c)(2) ....................................... 1.2
(c)(3) ....................................... Not Applicable
(d) ....................................... Not Applicable
(e) ....................................... 1.2
Section 315(a) ....................................... Not Applicable
(b) ....................................... Not Applicable
(c) ....................................... Not Applicable
(d) ....................................... Not Applicable
(d)(1) ....................................... Not Applicable
(d)(2) ....................................... Not Applicable
(d)(3) ....................................... Not Applicable
(e) ....................................... 5.14
Section 316(a) ....................................... 1.4
(a)(1)(A).......................................
....................................... 5.2
....................................... 5.12
(a)(1)(B)....................................... 5.13
(a)(2) ....................................... Not Applicable
(b) ....................................... 5.8
Section 317(a)(1) ....................................... 5.3
(a)(2) ....................................... 5.4
(b) ....................................... 10.3
Section 318(a) ....................................... 10.8
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS(1)
PAGE
----
Parties........................................................................1
Recitals of the Company........................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.....................................................1
Act............................................................................2
Affiliate......................................................................2
Authenticating Agent...........................................................2
Authorized Newspaper...........................................................2
Bearer Security................................................................2
Board of Directors.............................................................2
Board Resolution...............................................................2
Book-Entry Security............................................................2
Business Day...................................................................3
Change in Control..............................................................3
Commission.....................................................................3
Common Stock...................................................................3
Company........................................................................3
Company Request or Company Order...............................................3
Continuing Director............................................................3
Corporate Trust Office.........................................................3
Corporation....................................................................3
Coupon.........................................................................3
Defaulted Interest.............................................................4
Depository.....................................................................4
Dollar or $....................................................................4
Euro-clear.....................................................................4
Event of Default...............................................................4
Exchange Date..................................................................4
Exercise Period................................................................4
Holder.........................................................................4
Indenture......................................................................4
Interest.......................................................................4
Interest Payment Date..........................................................4
Junior Subordinated Payment....................................................4
Maturity.......................................................................4
Officers' Certificate..........................................................4
Opinion of Counsel.............................................................5
Original Issue Discount Security...............................................5
Outstanding....................................................................5
- ----------
(1) NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
Paying Agent...................................................................6
Person.........................................................................6
Place of Payment...............................................................6
Predecessor Security...........................................................6
Proceeding.....................................................................6
Redemption Date................................................................6
Redemption Price...............................................................6
Registered Security............................................................6
Regular Record Date............................................................6
Responsible Officer............................................................7
Securities.....................................................................7
Security Register..............................................................7
Senior Indebtedness............................................................7
Special Record Date............................................................8
Stated Maturity................................................................8
Subsidiary.....................................................................8
Trustee........................................................................8
Trustee........................................................................8
Trust Indenture Act............................................................8
United States..................................................................8
United States Alien............................................................8
U.S. Government Obligations....................................................8
Vice President.................................................................9
Yield to Maturity..............................................................9
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS............................9
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO TRUSTEE.........................10
SECTION 1.4 ACTS OF HOLDERS................................................10
SECTION 1.5 NOTICES, ETC., TO TRUSTEE AND COMPANY..........................13
SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER........................14
SECTION 1.7 LANGUAGE OF NOTICES, ETC.......................................15
SECTION 1.8 CONFLICT WITH TRUST INDENTURE ACT..............................15
SECTION 1.9 EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................15
SECTION 1.10 SUCCESSORS AND ASSIGNS.........................................15
SECTION 1.11 SEPARABILITY CLAUSE............................................15
SECTION 1.12 BENEFITS OF INDENTURE..........................................15
SECTION 1.13 GOVERNING LAW..................................................15
SECTION 1.14 LEGAL HOLIDAYS.................................................16
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY................................................16
SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION................17
SECTION 2.3 SECURITIES IN GLOBAL FORM......................................17
SECTION 2.4 FORM OF LEGEND FOR BOOK-ENTRY SECURITIES.......................18
SECTION 2.5 FORM OF CONVERSION NOTICE......................................18
ii
<PAGE>
ARTICLE III
THE SECURITIES
SECTION 3.1 AMOUNT UNLIMITED; ISSUABLE IN SERIES...........................18
SECTION 3.2 DENOMINATIONS..................................................22
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.................22
SECTION 3.4 TEMPORARY SECURITIES...........................................24
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE............26
SECTION 3.6 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES AND
COUPONS........................................................29
SECTION 3.7 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.................30
SECTION 3.8 PERSONS DEEMED OWNERS..........................................32
SECTION 3.9 CANCELLATION...................................................32
SECTION 3.10 COMPUTATION OF INTEREST........................................33
SECTION 3.11 ELECTRONIC SECURITY ISSUANCE...................................33
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE........................33
SECTION 4.2 APPLICATION OF TRUST MONEY.....................................34
SECTION 4.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF
ANY SERIES.....................................................35
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT..............................................38
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.............39
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE.........................................40
SECTION 5.4 TRUSTEE MAY FILE PROOFS OF CLAIM...............................41
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS..........................................42
SECTION 5.6 APPLICATION OF MONEY COLLECTED.................................42
SECTION 5.7 LIMITATION ON SUITS............................................42
SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST................................43
SECTION 5.9 RESTORATION OF RIGHTS AND REMEDIES.............................43
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.................................43
SECTION 5.11 DELAY OR OMISSION NOT WAIVER...................................44
SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES...............................44
SECTION 5.13 WAIVER OF PAST DEFAULTS........................................44
SECTION 5.14 UNDERTAKING FOR COSTS..........................................45
SECTION 5.15 WAIVER OF STAY OR EXTENSION LAWS...............................45
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN RIGHTS OF TRUSTEE......................................45
iii
<PAGE>
SECTION 6.2 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES.....................................................46
SECTION 6.3 MAY HOLD SECURITIES............................................47
SECTION 6.4 MONEY HELD IN TRUST............................................47
SECTION 6.5 COMPENSATION AND REIMBURSEMENT.................................47
SECTION 6.6 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR..............47
SECTION 6.7 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.........................49
SECTION 6.8 DISQUALIFICATION; CONFLICTING INTERESTS........................50
SECTION 6.9 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY........................50
SECTION 6.10 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY..............50
SECTION 6.11 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION
TO BUSINESS....................................................51
SECTION 6.12 APPOINTMENT OF AUTHENTICATING AGENT............................51
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
HOLDERS........................................................53
SECTION 7.2 REPORTS BY TRUSTEE.............................................54
ARTICLE VIII
CONSOLIDATION, MERGER, SALE, LEASE, TRANSFER
OR OTHER DISPOSITION
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC. ONLY ON CERTAIN TERMS............54
SECTION 8.2 SUCCESSOR SUBSTITUTED..........................................55
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.............56
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS................57
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES...........................59
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES..............................59
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT............................59
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.............59
SECTION 9.7 SUBORDINATION UNIMPAIRED.......................................59
ARTICLE X
COVENANTS
SECTION 10.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.....................59
SECTION 10.2 MAINTENANCE OF OFFICE OR AGENCY................................60
SECTION 10.3 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST..............61
SECTION 10.4 ADDITIONAL AMOUNTS.............................................62
SECTION 10.5 EXISTENCE......................................................63
SECTION 10.6 PURCHASE OF SECURITIES BY COMPANY OR SUBSIDIARY................63
SECTION 10.7 STATEMENT BY OFFICERS AS TO DEFAULT............................64
iv
<PAGE>
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 APPLICABILITY OF ARTICLE.......................................64
SECTION 11.2 ELECTION TO REDEEM; NOTICE TO TRUSTEE..........................64
SECTION 11.3 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED..............64
SECTION 11.4 NOTICE OF REDEMPTION...........................................65
SECTION 11.5 DEPOSITION OF REDEMPTION PRICE.................................66
SECTION 11.6 SECURITIES PAYABLE ON REDEMPTION DATE..........................66
SECTION 11.7 SECURITIES REDEEMED IN PART....................................67
ARTICLE XII
SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE.......................................67
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES.....................................................68
SECTION 12.3 REDEMPTION OF SECURITIES FOR SINKING FUND......................68
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED......................69
SECTION 13.2 CALL, NOTICE AND PLACE OF MEETINGS.............................69
SECTION 13.3 PERSONS ENTITLED TO VOTE AT MEETINGS...........................69
SECTION 13.4 QUORUM; ACTION.................................................70
SECTION 13.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS........................................71
SECTION 13.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS................72
ARTICLE XIV
REDEMPTION OF SECURITIES AT OPTION OF HOLDERS
SECTION 14.1 APPLICABILITY OF ARTICLE.......................................72
SECTION 14.2 REDEMPTION AT OPTION OF HOLDERS UPON A CHANGE IN CONTROL
OF THE COMPANY.................................................72
SECTION 14.3 NOTICE OF CHANGE IN CONTROL....................................73
SECTION 14.4 DEPOSIT OF REDEMPTION PRICE....................................74
ARTICLE XV
CONVERSION OF SECURITIES
SECTION 15.1 APPLICABILITY OF ARTICLE.......................................74
SECTION 15.2 EXERCISE OF CONVERSION PRIVILEGE...............................74
SECTION 15.3 NO FRACTIONAL SHARES...........................................75
SECTION 15.4 ADJUSTMENT OF CONVERSION PRICE.................................76
SECTION 15.5 NOTICE OF CERTAIN CORPORATE ACTIONS............................76
SECTION 15.6 RESERVATION OF SHARES OF COMMON STOCK..........................77
SECTION 15.7 PAYMENT OF CERTAIN TAXES UPON CONVERSION.......................77
SECTION 15.8 NONASSESSABILITY...............................................78
v
<PAGE>
SECTION 15.9 EFFECT OF CONSOLIDATION OR MERGER ON CONVERSION
PRIVILEGE......................................................78
SECTION 15.10 DUTIES OF TRUSTEE REGARDING CONVERSION.........................79
SECTION 15.11 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.....................79
ARTICLE XVI
SUBORDINATION OF SECURITIES
SECTION 16.1 SECURITIES SUBORDINATE TO SENIOR INDEBTEDNESS..................80
SECTION 16.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.................80
SECTION 16.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON
ACCELERATION OF SECURITIES.....................................81
SECTION 16.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.................82
SECTION 16.5 PAYMENT PERMITTED IF NO DEFAULT................................82
SECTION 16.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR
INDEBTEDNESS...................................................83
SECTION 16.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS....................83
SECTION 16.8 TRUSTEE TO EFFECTUATE SUBORDINATION............................84
SECTION 16.9 NO WAIVER OF SUBORDINATION PROVISIONS..........................84
SECTION 16.10 NOTICE TO TRUSTEE..............................................85
SECTION 16.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT..............................................85
SECTION 16.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR
INDEBTEDNESS...................................................86
SECTION 16.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR
INDEBTEDNESS; PRESERVATION OF TRUSTEE'S RIGHTS.................86
SECTION 16.14 ARTICLE APPLICABLE TO PAYING AGENTS............................86
SECTION 16.15 DEFEASANCE OF THIS ARTICLE SIXTEEN.............................86
SECTION 16.16 CERTAIN CONVERSIONS DEEMED PAYMENT.............................86
EXHIBIT A....................................................................A-1
EXHIBIT B....................................................................B-1
EXHIBIT C....................................................................C-1
EXHIBIT D....................................................................D-1
EXHIBIT E..................................................................E-1-1
EXHIBIT E.1................................................................E-1-1
EXHIBIT E.2................................................................E-1-2
EXHIBIT E.3................................................................E-3-1
EXHIBIT E.4................................................................E-4-1
vi
<PAGE>
INDENTURE, dated as of [ ], 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 [Trustee], a banking association duly
organized and existing under the laws of [ ], 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
<PAGE>
(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.
2
<PAGE>
"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.
3
<PAGE>
"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
4
<PAGE>
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
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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.
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"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.
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"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
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(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
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(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
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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.
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(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
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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
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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
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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.
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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.
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SECTION 2.2 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
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
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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 within
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:
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(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the 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 registra-
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tion 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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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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
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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 deter-
mine, to the Persons entitled thereto, of the principal (and premium, if any)
and any interest for whose payment such money has been deposited with the
Trustee.
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SECTION 4.3 SATISFACTION, DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
If this Section 4.3 is specified, as contemplated by Section 3.1, to be
applicable to Securities of any series, then notwithstanding Section 4.1: (i)
the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of any such series; (ii) the provisions of
this Indenture as it relates to such Outstanding Securities shall no longer be
in effect (except as to the rights of Holders of Securities to receive, from the
trust fund described in subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Securities on the Stated Maturity of such principal (and
premium, if any) or installment of principal (and premium, if any) or interest
or (y) any mandatory sinking fund payments or analogous payments applicable to
the Securities of that series on that day on which such payments are due and
payable in accordance with the terms of the Indenture and of such Securities,
the Company's obligations with respect to such Securities under Sections 3.4,
3.5, 3.6, 10.2, 10.3, and 10.4 and the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including those under Section 6.7 hereof);
and (iii) the Trustee, at the expense of the Company, shall, upon Company
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
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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;
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(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.
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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
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(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before 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,
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(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
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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
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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;
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(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
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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.
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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;
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(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.
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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
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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
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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
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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).
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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
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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 alter-native
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
[ ]
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.
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities (i) contained in
the most recent list furnished to the Trustee as provided in Section 7.1, (ii)
received by the Trustee in its capacity as Security Registrar and (iii) filed
with it within the two preceding years pursuant to Section 7.3(c)(2). The
Trustee may (i) destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished, (ii) destroy any information received by it
as Paying Agent (if so acting) hereunder upon delivering to itself as Trustee,
not earlier than March 20 or September 20 of each year, a list containing the
names and addresses of the Holders of Securities obtained from such information
since the delivery of the next previous list, if any, (iii) destroy any list
delivered to itself as Trustee which was compiled from information received by
it as Paying Agent (if so acting) hereunder upon the receipt of a new list so
delivered and (iv) destroy not earlier than two years after filing, any
information filed with it pursuant to Section 7.3(c)(2).
(b) If three or more Holders of Securities (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities with respect to their rights under this Indenture or under the
Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its elec-
tion, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 7.2(a), or
(ii) inform such applicants as to the approximate number of Holders
of Securities whose names and addresses appear in the 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
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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
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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
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merged or to which sale, lease, transfer or other disposition is made shall
assume the obligations of the Company on the Securities and under this Indenture
with the same effect as if such successor Person had been named as the Company
herein, and thereafter, except in the case of a lease, the predecessor Person
shall be relieved of all obligations and covenants under this Indenture and the
Securities and coupons.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company
is then authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company And
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registerable as to principal to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form, PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
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(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,
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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.
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SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing or accepting the additional trusts created by any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act of 1939, as amended, in
effect on such date.
SECTION 9.6 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
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
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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
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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.
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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
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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
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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
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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,
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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
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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.
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The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
SECTION 12.2 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities, as provided for by the
terms of such series; PROVIDED that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
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.
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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
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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
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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
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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
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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.
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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
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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
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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
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(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.
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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
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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.
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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
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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
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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
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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
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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 its acceptance thereof authorizes and directs
the Trustee on its behalf to take such action as may be necessary or appropriate
to acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee its attorney-in-fact for any and all such purposes.
SECTION 16.9 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Holders of the Securities, and without
impairing or releasing the subordination provided in this Article or the
obligations hereunder of the Holders of the Securities to the holders of Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter or
increase, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
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.
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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
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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
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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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By
------------------------------------
[Seal]
Attest:
- ------------------------------------
Assistant Secretary
[Trustee]
By
------------------------------------
[Seal]
Attest:
- ------------------------------------
Assistant Secretary
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STATE OF NEW YORK )
) ss.:
[COUNTY OF WESTCHESTER] )
On the ____ day of _______, ___, before me personally came ___________, to
me known, who, being by me duly sworn, did depose and say that he is
____________ of International Paper Company, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
_______________________________ [Seal]
Notary Public, State of New York
Qualified in _________________________
______________________________________
Commission Expires ___________________
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ____ day of _______, ____, before me personally came ___________,
to me known, who, being by me duly sworn, did depose and say that he is
____________ of [Trustee], one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation, and that he
signed his name thereto by like authority.
_______________________________ [Seal]
Notary Public, State of New York
Qualified in _________________________
______________________________________
Commission Expires ___________________
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EXHIBIT A
[FORM OF REGISTERED SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ___________ or registered assigns, the
principal sum of __________ [United States] Dollars on _________, and to pay
interest thereon from _______, ___ 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 ________, ___, 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
A-1
<PAGE>
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;
A-2
<PAGE>
(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 Authenticat-
A-3
<PAGE>
ing 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:
- ----------------------------
A-4
<PAGE>
[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 [ ](herein called the "Indenture"),
between the Company and [Trustee], 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 _____,___], 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
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<PAGE>
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 _________, ___], 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
A-6
<PAGE>
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 ____________, __, 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
- --------
* Generally this provision will only be applicable if the Securities of the
series bear interest at a fixed rate.
A-7
<PAGE>
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 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.]
A-8
<PAGE>
[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
A-9
<PAGE>
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 ________, ____, that this Security was convertible at the
time of such consolidation, merger or sale at the initial conversion price
specified above as adjusted from __________, ___, 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
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<PAGE>
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.
A-11
<PAGE>
[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 $__________ and any
integral multiple thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If the Securities of the Series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
A-12
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated:________________
------------------------------------------
Signature
If only a portion of this Security is submitted for
redemption, please indicate:
1. Principal Amount submitted for redemption:
U.S.$_________________
2. Amount and denomination of Registered Securities
representing principal amount of this Security not
submitted for redemption to be issued:
Amount: U.S.$____________
Denominations:
U.S.$_____________________
(U.S.$5,000 or an integral multiple thereof)
Note: Exercise of the option to require redemption is irrevocable.
A-13
<PAGE>
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If this Notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date (unless this Security
or the portion thereof being converted has been called for redemption on a
Redemption Date within such period), this Notice is accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted
(in an integral multiple of
U.S. $_______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S. $_______
Dated: _______________________
--------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered owner.
--------------------------------------
Signature Guaranty
A-14
<PAGE>
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
____________________________ Social Security or other (NAME)
Taxpayer Identification Number __________________
____________________________
(ADDRESS)
____________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other securities of the Company.]
A-15
<PAGE>
EXHIBIT B
[FORM OF REGISTERED SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY]
[FORM OF FACE]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS ____% OF
ITS PRINCIPAL AMOUNT, THE ISSUE DATE IS ___________, ____ [,--AND] THE YIELD TO
MATURITY IS ____% [, THE METHOD USED TO DETERMINE THE YIELD IS ___________].
INTERNATIONAL PAPER COMPANY
No. [R-] [U.S.]$
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 ___________, ____ 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 _______, ___, 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
B-1
<PAGE>
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
B-2
<PAGE>
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;
B-3
<PAGE>
(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.
B-4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:_________________
INTERNATIONAL PAPER COMPANY
[Seal] By
----------------------------------
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 _______, ____ (herein called the
"Indenture"), between the Company and [ ], as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities [If the Securities of the series are also issuable as Bearer
Securities, insert--and any coupons appertaining thereto] and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [, limited in
aggregate principal amount to [U.S.]$______]. [If Securities of the series are
issuable as Bearer Securities, insert--The Securities of this series are
issuable as Bearer Securities [, with interest coupons attached,] in the
denomination of U.S.$__________, and as Registered Securities, without coupons,
in denominations of U.S.$__________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Bearer Securities and Registered Securities of this series are exchangeable for
a like aggregate principal amount of Registered Securities of this series and of
like tenor of any authorized denominations, as requested by the Holder
surrendering the same, upon surrender of the Security or Securities to be
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
B-5
<PAGE>
after ____________, ____], 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 ___________________, ____], 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
B-6
<PAGE>
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
B-7
<PAGE>
such laws or regulations, which amendment or change is effective on or after
___________, ____, 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 who are United States
Aliens certain additional amounts specified in the Bearer
- --------
* This provision will only be applicable if the Securities of the series are
interest-bearing and generally only if the Securities bear interest at a
fixed rate.
B-8
<PAGE>
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
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
- --------
* This provision will only be applicable if the Securities of the series are
not to bear interest prior to Maturity.
B-9
<PAGE>
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
B-10
<PAGE>
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 ________, ____, that this Security was
convertible at the time of such consolidation, merger or sale at the initial
conversion price specified above as adjusted from __________, ____, 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
B-11
<PAGE>
portion hereof shall be issued in the name of the Holder hereof upon the
cancellation hereof.]
[If the Security is convertible into other securities of the Company,
specify the conversion features.]
[The Indenture contains provisions for defeasance of the entire
indebtedness of this Security upon compliance by the Company with certain condi-
tions set forth therein.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, an amount of principal of the Securities of this series
may be declared due and payable in the manner and with the effect provided in
the Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected [If the Securities of the series are also issuable as Bearer Securities
and are interest-bearing, insert--and any related coupons] under the Indenture
at any time by the Company and the Trustee with the consent 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
B-12
<PAGE>
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 $______ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.]
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security is overdue, and neither the
B-13
<PAGE>
Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
[If the Securities of the series are also issuable as Bearer Securities,
insert--The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.]
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
B-14
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction being given in exercise of the Holder's option to require
redemption of this Security to the extent provided in such Indenture upon a
Change in Control of the Company.
Dated: _____________________
--------------------------------------
Signature
If only a portion of this Security is submitted for
redemption, please indicate:
1. Principal Amount submitted for redemption:
U.S.$_________________
2. Amount and denomination of Registered Securities
representing principal amount of this Security not
submitted for redemption to be issued:
Amount: U.S.$____________
Denominations:
U.S.$_____________________
(U.S.$5,000 or an integral multiple thereof)
Note: Exercise of the option to require redemption is irrevocable.
B-15
<PAGE>
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If this Notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date (unless this Security
or the portion thereof being converted has been called for redemption on a
Redemption Date within such period), this Notice is accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted
(in an integral multiple of
U.S. $_______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S. $_______
Dated: _________________
--------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered owner.
--------------------------------------
Signature Guaranty
B-16
<PAGE>
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
____________________________ Social Security or other (NAME)
Taxpayer Identification Number ________________
____________________________
(ADDRESS)
____________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other securities of the Company.]
B-17
<PAGE>
EXHIBIT C
[FORM OF BEARER SECURITY WHICH IS NOT AN
ORIGINAL ISSUE DISCOUNT SECURITY AND
FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
No. B- U.S.$
International Paper Company, a corporation duly organized and existing
under the laws of New York (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to bearer upon presentation and surrender
of this Security the principal sum of _____Thousand United States Dollars on
_____ and to pay interest thereon, from the date hereof, [semi-annually in
arrears on ______ and _______ in each year] [annually in arrears on ______ in
each year], commencing ______, ____, 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 main-
C-1
<PAGE>
tained for the purpose by the Company in accordance with the Indenture is
illegal or effectively precluded by exchange controls or other similar
restrictions].
The indebtedness evidenced by this Security is, to the extent provided in
the Indenture, subordinate and subject in right of payment to the prior payment
in full of all Senior Indebtedness, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this Security,
by such provisions, (b) authorizes and directs the Trustee on his behalf to take
such 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
C-2
<PAGE>
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
C-3
<PAGE>
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:________, ____
International Paper Company
[Seal] By
Attest: -------------------------------------
- ---------------------------
C-4
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ] (herein called the "Indenture"),
between the Company and [ ], as Trustee (herein called the "Trustee",
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities 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 ______, ____], 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
C-5
<PAGE>
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 ________ ____], 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
C-6
<PAGE>
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 _____, ____, 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 govern-
- --------
* Generally this provision will only be applicable if the Securities of the
series bear interest at a fixed rate.
C-7
<PAGE>
mental 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 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].]
C-8
<PAGE>
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
C-9
<PAGE>
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 ________, ___, that this Security was convertible at the
time of such consolidation, merger or sale at the initial conversion price
specified above as adjusted from __________, ___, to such time pursuant to the
Indenture]. In the event of conversion of this Security in part only, a new
Security or Securities for the unconverted portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.] [If the Security is
amortized into other securities of the Company, specify conversion features.]
[The Indenture contains provisions for defeasance of (a) the entire
indebtedness of this Security and (b) certain restrictive covenants upon
compliance by the Company with certain conditions set forth therein.]
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to 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
C-10
<PAGE>
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.
C-11
<PAGE>
The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
C-12
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction is being given in exercise of the Holder's option to
require redemption of this Security to the extent provided in such Indenture
upon a Change in Control of the Company.
Dated:____________________
---------------------------------
Signature
NOTE: EXERCISE OF THE OPTION TO REQUIRE REDEMPTION IS IRREVOCABLE.
C-13
<PAGE>
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If this Notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date (unless this Security
or the portion thereof being converted has been called for redemption on a
Redemption Date within such period), this Notice is accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted
(in an integral multiple of
U.S. $_______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S. $_______
Dated: __________________________
-------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered owner.
-------------------------------------
Signature Guaranty
C-14
<PAGE>
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
_________________________ Social Security or other (NAME)
Taxpayer Identification Number __________________
_________________________
(ADDRESS)
_________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other Securities of the Company.]
C-15
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
INTERNATIONAL PAPER COMPANY
U.S.$_________ Due _________
Unless the Security to which this coupon appertains shall have been called
for previous redemption and payment thereof duly provided for on the date set
forth hereon, International Paper Company (herein called the "Company") will pay
to bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
at the Paying Agents set out on the reverse hereof or at such other offices or
agencies (which, except as otherwise provided in the Security to which this
coupon appertains, shall be located outside the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (the "United States"))
as the Company may designate from time to time, at the option of the Holder, by
United States dollar check drawn on the bank in The City of New York or by
transfer of United States dollars to an account maintained by the payee with a
bank located outside the United States, being [one year's] interest then payable
on the said Security.
INTERNATIONAL PAPER COMPANY
By
--------------------------------
[Reverse of Coupon]*
------------------------------
------------------------------
------------------------------
------------------------------
------------------------------
- -----------
* Insert names and addresses of initial Paying Agents located outside the
United States.
C-16
<PAGE>
EXHIBIT D
[FORM OF BEARER SECURITY WHICH IS AN
ORIGINAL ISSUE DISCOUNT SECURITY
AND FORM OF RELATED COUPON]
[Form of Face of Security]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE. FOR
PURPOSES OF SECTIONS 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE,
THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THIS SECURITY IS % OF ITS PRINCIPAL
AMOUNT, THE ISSUE DATE IS , ____ [,--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
______, ____, 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
D-1
<PAGE>
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
D-2
<PAGE>
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
D-3
<PAGE>
(f) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the Holder of this
Security [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]
D-4
<PAGE>
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 ____________, ____
INTERNATIONAL PAPER COMPANY
[Seal] By
--------------------------------
Attest:
- -------------------------
D-5
<PAGE>
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ](herein called the "Indenture"),
between the Company and [ ], as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and any coupons appertaining thereto and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to U.S.$ ]. The Securities of this series are issuable as
Bearer Securities, with interest coupons attached, in the denomination of
U.S.$ [, and as Registered Securities, without coupons, in
denominations of U.S.$ and any integral multiple thereof]. [As
provided in the Indenture and subject to certain limitations therein set forth,
Bearer Securities and Registered Securities of this series are exchangeable for
a like aggregate principal amount of Registered Securities of this series and of
like tenor of any authorized denominations, as requested by the Holder
surrendering the same, upon surrender of the Security or Securities to be
exchanged, with all unmatured coupons and all matured coupons in default thereto
appertaining, at any office or agency described below where Registered
Securities of this series may be presented for registration of transfer;
provided, however, that Bearer Securi- ties surrendered in exchange for
Registered Securities between a Record Date and the relevant Interest Payment
Date shall be surrendered without the coupon relating to such Interest Payment
Date. Registered Securities may not be exchanged for Bearer Securities.]
[If applicable, insert--The Securities of this series are subject to
redemption [(1)] [If applicable, insert--(1) on in any year
commencing with the year and ending with the year through operation
of the sinking fund for this series at a Redemption Price equal to [insert
formula for determining the amount], and (2)] [If applicable, insert--at any
time [on or after , ], 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
D-6
<PAGE>
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 , ], as a whole or in part,
at the election of the Company, at the Redemption Prices for redemption other-
wise than through operation of the sinking fund (expressed as percentages of the
principal amount) set forth in the table below: If redeemed during the 12-month
period beginning of the years indicated,
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
D-7
<PAGE>
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 __________,
____, the Company will become obligated to pay additional amounts (as described
on the face hereof) [If the Security is interest-bearing, insert--on the next
succeeding Interest Payment Date] [If the Security is not to bear interest prior
to Maturity, insert--at Maturity or upon the sale or exchange of any Security]
and such obligation cannot be avoided by the use of reasonable measures
available to the Company; provided, however, that (a) no such notice of
redemption may be given earlier than 90 days prior to the earliest date on which
the Company would be obligated to pay such additional amounts were a payment in
respect of the Securities of this series then due [If the Security is not to
bear interest prior to Maturity, insert--or were a sale or exchange of a
Security of this series then made], and (b) at the time notice of such
redemption is given, such obligation to pay such additional amounts remains in
effect. Immediately prior to the publication of any notice of redemption
pursuant to this paragraph, the Company shall deliver to the Trustee a
certificate stating that the Company is entitled to effect such redemption and
setting forth a statement of facts showing that the conditions precedent to the
right of the Company so to redeem have occurred.
D-8
<PAGE>
[If applicable,* insert--In addition, if the Company determines, based
upon a written opinion of independent counsel, that any payment made outside the
United States by the Company or any of its Paying Agents of the full amount of
principal [, premium, if any,] or interest due with respect to any Bearer
Security or coupon would, under any present or future laws or regulations of the
United States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which requirement
is the disclosure to the Company, any Paying Agent or any governmental authority
of the nationality, residence or identity of a beneficial owner of such Bearer
Security or coupon who is a United States Alien (as defined on the face hereof)
(other than such a requirement (a) which would not be applicable to a payment
made by the Company or any one of its Paying Agents (i) directly to the
beneficial owner or (ii) to any custodian, nominee or other agent of the
beneficial owner, or (b) which can be satisfied by the custodian, nominee or
other agent certifying that the beneficial owner is a United States Alien,
provided in each case referred to in clauses (a)(ii) and (b) that payment by
such custodian, nominee or other agent of such beneficial owner is not otherwise
subject to any such requirement), the Company at its election will either (x)
redeem the Securities, as a whole but not in part, at a Redemption Price
determined as set forth in the next preceding paragraph, together with interest
accrued to the date fixed for redemption, or (y) if and so long as the
conditions of the fifth paragraph on the face of this Security are satisfied,
pay the additional amounts specified in such paragraph. The Company will make
such determination and election and notify the Trustee thereof as soon as
practicable, and the Trustee will promptly give notice of such determination in
the manner provided below (the "Determination Notice"), in each case stating the
effective date of such certification, identification or other information
reporting requirement, whether the Company will redeem the Securities or will
pay the additional amounts specified in such paragraph and (if 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
- --------
* This provision will only be applicable if the Securities of the series are
interest-bearing and generally only if the Securities bear interest as a
fixed rate.
D-9
<PAGE>
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 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.]
- --------
* This provision will only be applicable if the Securities of the series are
not to bear interest prior to Maturity.
D-10
<PAGE>
[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 Secu-
D-11
<PAGE>
rity) 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 ________, ____, that this Security was convertible at the
time of such consolidation, merger or sale at the initial conversion price
specified above as adjusted from __________, ___, 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
D-12
<PAGE>
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
D-13
<PAGE>
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder thereof or his attorney duly authorized in writing, and thereupon one or
more new Registered Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.]
[No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.]
The Company, the Trustee and any agent of the Company or the Trustee may
treat the bearer of a Bearer Security of any series [If the Securities of the
series are interest-bearing, insert--and any coupon appertaining thereto] [, and
prior to due presentment of a Registered Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered,] as the owner thereof for
all purposes, whether or not such Security [If the Securities of the series are
interest-bearing, insert--or such coupon] is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture, the Securities and any coupons appertaining thereto shall
be governed by and construed in accordance with the laws of the State of New
York.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
D-14
<PAGE>
FORM OF NOTICE OF REDEMPTION AT HOLDER'S OPTION
To: INTERNATIONAL PAPER COMPANY
The undersigned Holder of this Security hereby irrevocably instructs the
Company to redeem this Security in accordance with the terms of the Indenture
referred to in this Security.
The instruction is being given in exercise of the Holder's option to
require redemption of this Security to the extent provided in such Indenture
upon a Change in Control of the Company.
Dated: _________________
-------------------------------------------
Signature
Note: Exercise of the option to require redemption is irrevocable.
D-15
<PAGE>
FORM OF CONVERSION NOTICE
To: INTERNATIONAL PAPER COMPANY:
The undersigned owner of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $________
[INSERT MINIMUM DENOMINATION] or an integral multiple thereof) below designated,
into shares of Common Stock of the Company in accordance with the terms of the
Indenture referred to in this Security, and directs that the shares issuable and
deliverable upon the conversion, together with any check in payment for
fractional shares and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If this Notice is being delivered on a
date after the close of business on a Regular Record Date and prior to the
opening of business on the related Interest Payment Date (unless this Security
or the portion thereof being converted has been called for redemption on a
Redemption Date within such period), this Notice is accompanied by payment, in
funds acceptable to the Company, of an amount equal to the interest payable on
such Interest Payment Date of the principal of this Security to be converted. If
shares are to be issued in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect hereto. Any amount
required to be paid by the undersigned on account of interest accompanies this
Security.
Principal Amount to be Converted
(in an integral multiple of
U.S. $_______ [INSERT MINIMUM
DENOMINATION], if less than all):
U.S. $_______
Dated: ___________________
------------------------------------
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a national stock
exchange if shares of Common Stock are
to be delivered, or Securities to be
issued, other than to and in the name
of the registered owner.
------------------------------------
Signature Guaranty
D-16
<PAGE>
Fill in for registration of shares of Common Stock and Security if to be
issued otherwise than to the registered holder.
____________________________ Social Security or other (NAME)
Taxpayer Identification Number _________________
____________________________
(ADDRESS)
____________________________
PLEASE PRINT NAME AND
ADDRESS (INCLUDING ZIP
CODE NUMBER)
[The above Conversion Notice is to be modified, as appropriate, for conversion
into other securities of the Company.]
D-17
<PAGE>
[Form of Face of Coupon]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTION 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE OF 1954, AS
AMENDED.
--------------
INTERNATIONAL PAPER COMPANY
U.S.$_________ Due___________
Unless the Security to which this coupon appertains shall have been called
for previous redemption and payment thereof duly provided for on the date set
forth hereon, International Paper Company (herein called the "Company") will pay
to bearer, upon surrender hereof, the amount shown hereon (together with any
additional amounts in respect thereof which the Company may be required to pay
according to the terms of said Security and the Indenture referred to therein)
at the Paying Agents set out on the reverse hereof or at such other offices or
agencies (which, except as otherwise provided in the Security to which this
coupon appertains, shall be located outside the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction (the "United States"))
as the Company may designate from time to time, at the option of the Holder, by
United States dollar check drawn on a bank in The City of New York or by
transfer of United States dollars to an account maintained by the payee with a
bank located outside the United States, being [one year's] interest then payable
on said Security.
INTERNATIONAL PAPER COMPANY
By
----------------------------------
[Reverse of Coupon]*
---------------------------
---------------------------
---------------------------
---------------------------
---------------------------
- -----------------------
* Insert names and addresses of initial Paying Agents located outside the
United States.
D-18
<PAGE>
EXHIBIT E
[Forms of Certification]
EXHIBIT E.1
[Form of Certificate to Be Given By
Person Entitled to Receive Bearer Security]
CERTIFICATE
-----------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that the above-captioned Securities are not being
acquired by or on behalf of a United States Person, or for offer to resell or
for resale directly or indirectly to a United States Person or any person inside
the United States, or, if a beneficial interest in the Securities is being
acquired by or on behalf of a United States Person, that such United States
Person is a financial institution within the meaning of Section 1.165-
12(c)(1)(v) of the United States Treasury Regulations or is acquiring through
such financial institution, and in either case the financial institution agrees
to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
Internal Revenue Code of 1986, as amended, and the regulations thereunder, and
is not purchasing for offer to resell or for resale inside the United States. If
the undersigned is a dealer, the undersigned agrees to obtain a similar
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.
E-1-1
<PAGE>
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:_______________, _____
[To be dated on or after
____________, ____ (the date
determined as provided in
the Indenture)]
---------------------------------
[Name of Person Entitled to
Receive Bearer Security]
---------------------------------
(Authorized Signatory)
Name:
Title:
E-1-2
<PAGE>
EXHIBIT E.2
[Form of Certificate to Be Given by Euro-Clear
and Cedel S.A. in Connection with the Exchange of a
Portion of a Temporary Global Security]
CERTIFICATE
--------------------------------
[Insert title or sufficient description
of Securities to be delivered]
This is to certify with respect to $ principal amount of the
above-captioned Securities (i) that we have received from each of the persons
appearing in our records as persons entitled to a portion of such principal
amount (our "Qualified Account Holders") a certificate with respect to such
portion substantially in the form attached hereto, and (ii) that we are not
submitting herewith for exchange any portion of the temporary global Security
representing the above-captioned Securities excepted in such certificates.
We further certify that as of the date hereof we have not received any
notification from any of our Qualified Account Holders to the effect that the
statements made by such Qualified Account Holders with respect to any portion of
the part submitted herewith for exchange are no longer true and cannot be relied
upon as of the date hereof.
Dated: ,
[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
-----------------------------------------
E-2-1
<PAGE>
EXHIBIT E.3
[Form of Certificate to Be Given by Euro-Clear and
Cedel S.A. to Obtain Interest Prior to an Exchange Date]
CERTIFICATE
-----------------------------
[Insert title or sufficient description of Securities]
We confirm that the interest payable on the Interest Payment Date on
[Insert Date] will be paid to each of the persons appearing in our records as
being entitled to interest payable on such date from whom we have received a
written certification, dated not earlier than such Interest Payment Date,
substantially in the form attached hereto. We undertake to retain certificates
received from our member organizations in connection herewith for four years
from the end of the calendar year in which such certificates are received.
We undertake that any interest received by us and not paid as provided
above shall be returned to the Trustee for the above Securities immediately
prior to the expiration of two years after such Interest Payment Date in order
to be repaid by such Trustee to the above issuer at the end of two years after
such Interest Payment Date.
Dated: ,
[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
--------------------------------------
E-3-1
<PAGE>
EXHIBIT E.4
[Form of Certificate to Be Given by Beneficial Owners to
Obtain Interest Prior to an Exchange Date]
CERTIFICATE
--------------------------------
[Insert title or sufficient description of Securities]
This is to certify that as of the Interest Payment Date on [Insert date]
and except as provided in the third paragraph hereof, none of the
above-captioned Securities held by you for our account was beneficially owned by
a United States Person or, if any of such Securities held by you for our account
were beneficially owned by a United States Person, such United States Person
either provided an Internal Revenue Service Form W-9 with respect to such
interest payment or certified with respect to such interest payment that it was
an exempt recipient as defined in Section 1.6049-4(c)(1)(ii) of the United
States Treasury Regulations.
As used herein, "United States Person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States and any estate or trust the
income of which is subject to United States Federal income taxation regardless
of its source, and "United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
This certificate excepts and does not relate to U.S. $
principal amount of the above-captioned Securities appearing in your books as
being held for our account as to which we are not yet able to certify and as to
which we understand interest cannot be credited unless and until we are able so
to certify.
E-4-1
<PAGE>
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ,
[To be dated on or after the relevant
Interest Payment Date]
[Name of Person Entitled to
Receive Interest]
---------------------------------------
(Authorized Signatory)
Name:
Title:
E-4-2
<PAGE>
Exhibit 4.7
CERTIFICATE OF TRUST
The undersigned, the trustees of International Paper Capital Trust
III desiring to form a business trust pursuant to Delaware Business Trust Act,
12 Del. C. ss. 3810 hereby certify as follows:
i. The name of the business trust being formed hereby (the
"Trust") is International Paper Capital Trust III.
ii. The name and business address of the trustee of the Trust
which has its princi pal place of business in the State of
Delaware is as follows: The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
Dated: August 28, 1998
Robert C. McPhillips
as Trustee
/s/ Robert C. McPhillips
---------------------------------
Virginia A. Lane
as Trustee
/s/ Virgina A. Lane
---------------------------------
Roger Becker
as Trustee
/s/ Roger Becker
---------------------------------
The Bank of New York (Delaware)
as Delaware Trustee
/s/ Fred Clark
---------------------------------
Name: Fred Clark
Title: Authorized Signatory
<PAGE>
Exhibit 4.8
CERTIFICATE OF TRUST
The undersigned, the trustees of International Paper Capital Trust
IV desiring to form a business trust pursuant to Delaware Business Trust Act, 12
Del. C. ss. 3810 hereby certify as follows:
i. The name of the business trust being formed hereby (the
"Trust") is International Paper Capital Trust IV.
ii. The name and business address of the trustee of the Trust
which has its princi pal place of business in the State of
Delaware is as follows: The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711
Dated: August 28, 1998
Robert C. McPhillips
as Trustee
/s/ Roger C. McPhillips
---------------------------------
Virginia A. Lane
as Trustee
/s/ Virginia A. Lane
---------------------------------
Roger Becker
as Trustee
/s/ Roger Becker
---------------------------------
The Bank of New York (Delaware),
as Delaware Trustee
/s/ Fred Clark
---------------------------------
Name: Fred Clark
Title: Authorized Signatory
<PAGE>
Exhibit 4.9
DECLARATION OF TRUST
OF
INTERNATIONAL PAPER CAPITAL TRUST III
August 28, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
August 28, 1998 by the undersigned trustees (together with all other Persons
from time to time duly appointed and serving as trustees in accordance with the
provisions of this Declaration, the "Trustees"), the Parent as trust sponsor
(the "Sponsor"), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act for the sole purpose of issuing
and selling certain securities representing undivided beneficial interests in
the assets of the Trust and investing the proceeds thereof in certain Debentures
of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in
this Section 1.1;
<PAGE>
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to time.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or the Trust's
Affiliates.
"Debenture Issuer" means the Parent in its capacity as the issuer of
the Debentures.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
2
<PAGE>
"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Parent" means International Paper Company, a New York corporation,
or any successor entity in a merger.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
and the Property Trustee (as herein after defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees
3
<PAGE>
in accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "International Paper
Capital Trust III." The Trust's activities may be conducted under the name of
the Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
International Paper Company, Two Manhattanville Road, Purchase, New York 10577.
At any time, the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its as sets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal
income tax purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular
4
<PAGE>
Trustees acting on behalf of the Trust, no person shall be required to inquire
into the authority of the Regular Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute, if necessary, an offering circular (the
"Offering Circular") in preliminary and final form
prepared by the Sponsor, in relation to the offering and
sale of Preferred Securities to qualified institutional
buyers in reliance on Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act") and outside
the United States to non-U.S. persons in offshore
transactions in reliance on
5
<PAGE>
Regulation S under the Securities Act;
(ii) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement
filed on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred
Securities;
(iii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of
the Preferred Securities in any State or foreign
jurisdiction in which the Sponsor has determined to
qualify or register such Preferred Securities for sale;
(iv) execute and file an application, prepared by the
Sponsor, to the Private Offerings, Resale and Trading
through Automated Linkages ("PORTAL") Market and at such
time as determined by the Sponsor to the New York Stock
Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation of the
Preferred Securities;
(v) to execute and deliver letters, documents, or
instruments with the Depository Trust Company relating
to the Preferred Securities;
(vi) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on
Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the
Preferred Securities
6
<PAGE>
under Section 12(b) of the Exchange Act; and
(vii) execute and enter into purchase agreements, registration
rights agreements and other related agreements
providing for the sale of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable
compensation for such services;
(d) to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration, which expenses
shall be paid for the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence until forty (40) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclu-
7
<PAGE>
sive right and responsibility to engage in the following activities:
(a) to prepare, if necessary, the Offering Circular, and to
prepare for filing by the Trust with the Commission the
registration statement on Form S-3, including any amendments
thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all
or part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by the Trust,
and advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States
and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to PORTAL
and to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of purchase agreements, registration
rights agreements and other related agreements providing for
the sale of the Preferred Securities.
8
<PAGE>
ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The initial number of Trustees shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than four (4); and provided further that
one Trustee, in the case of a natural per son, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"). Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent of, a
majority of the Regular Trustees.
The initial Regular Trustees shall be:
Robert C. McPhillips
Virginia A. Lane
Roger Becker
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property Trustee")
meeting the requirements of the Trust Indenture Act of 1939, as amended, by the
execution of an amendment to this Declaration executed by the Regular Trustees,
the Sponsor, the Property Trustee and the Delaware Trustee.
SECTION 3.2 Delaware Trustee
Notwithstanding any other provision of this Declaration, the
Delaware Trustee in its capacity as Delaware Trustee shall not be entitled to
exercise any of the powers, nor shall the Delaware Trustee in its capacity as
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees described in this Declaration. The Delaware Trustee in its capaci-
9
<PAGE>
ty as Delaware Trustee shall be a Trustee for the sole and limited purpose of
fulfilling the requirements of ss. 3807 of the Business Trust Act.
SECTION 3.3 Execution of Documents
(a) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.6; provided, that, the registration statement referred to in Section
2.6(b)(i), including any amendment thereto, shall be signed by a majority of the
Regular Trustees; and
(b) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions; and
10
<PAGE>
(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable
care by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to Holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions
of this Declaration, to the extent that they re strict the duties and
liabilities of an Indemnified Person otherwise existing at law or in equity, are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person;
(b) unless otherwise expressly provided here in:
(i) whenever a conflict of interest exists or arises between
Covered Per sons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party
11
<PAGE>
(including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted
accounting practices or principles. In the absence of bad faith by the
Indemnified Person, the resolution, action or term so made, taken or provided by
the Indemnified Person shall not constitute a breach of this Declaration or
any other agreement contemplated herein or of any duty or obligation of the
Indemnified Person at law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.3 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by
this Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
12
<PAGE>
Indemnified Person by reason of negligence or willful misconduct with respect to
such acts or omissions; and
(b) to the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
SECTION 4.4 Outsider Businesses.
Any Covered Person and the Delaware Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person or the Delaware Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person and the Delaware Trustee shall have
the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person and the Delaware Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for or
may act on any committee or body of holders of, securities or other obligations
of the Sponsor or its Affiliates.
13
<PAGE>
ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided, however, that if the amendment effects the
rights, powers, duties, obligations or immunities of the Delaware Trustee, the
amendment shall also be approved in writing by the Delaware Trustee.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation
of the Sponsor's charter or of the Trust's certificate
of trust;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of
all of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of
the State of Delaware.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of
Delaware and all
14
<PAGE>
rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 5.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder
of this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
15
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written
Robert C. McPhillips
as Trustee
/s/ Robert C. McPhillips
- ------------------------------
Virginia A. Lane
as Trustee
/s/ Virginia A. Lane
- ------------------------------
Roger Becker
as Trustee
/s/ Roger Becker
- ------------------------------
The Bank of New York (Delaware)
as Delaware Trustee
By: /s/ Fred Clark
------------------------------
Name: Fred Clark
Title: Authorized Signatory
International Paper Company,
as Sponsor
By: /s/ James Guedry
------------------------------
Name: James Guedry
Title: Vice President and Secretary
<PAGE>
CERTIFICATE OF TRUST Exhibit A
The undersigned, the trustees of International Paper Capital Trust
III desiring to form a business trust pursuant to Delaware Business Trust Act,
12 Del. C. ss. 3810 hereby certify as follows:
a. The name of the business trust being formed hereby (the
"Trust") is International Paper Capital Trust III.
b. The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows: The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711.
Dated: August 28, 1998
Robert C. McPhillips
as Trustee
------------------------------
Virginia A. Lane
as Trustee
------------------------------
Roger Becker
as Trustee
------------------------------
The Bank of New York (Delaware)
as Delaware Trustee
------------------------------
Name:
Title:
<PAGE>
Exhibit 4.10
DECLARATION OF TRUST
OF
INTERNATIONAL PAPER CAPITAL TRUST IV
August 28, 1998
DECLARATION OF TRUST ("Declaration") dated and effective as of
August 28, 1998 by the undersigned trustees (together with all other Persons
from time to time duly appointed and serving as trustees in accordance with the
provisions of this Declaration, the "Trustees"), the Parent as trust sponsor
(the "Sponsor"), and by the holders, from time to time, of undivided beneficial
interests in the Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor desire to establish a trust
(the "Trust") pursuant to the Business Trust Act for the sole purpose of issuing
and selling certain securities representing undivided beneficial interests in
the assets of the Trust and investing the proceeds thereof in certain Debentures
of the Debenture Issuer; and
NOW, THEREFORE, it being the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Act and that this
Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
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(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration of Trust as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and Sections are to
Articles and Sections of this Declaration unless otherwise
specified; and
(e) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to time.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Commission" means the Securities and Exchange Commission.
"Common Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Covered Person" means any officer, director, shareholder, partner,
member, representative, employee or agent of the Trust or the Trust's
Affiliates.
"Debenture Issuer" means the Parent in its capacity as the issuer of
the Debentures.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer and acquired by the Trust.
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"Delaware Trustee" has the meaning set forth in Section 3.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time or any successor legislation.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Parent" means International Paper Company, a New York corporation,
or any successor entity in a merger.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Security" means a security representing an undivided
beneficial interest in the assets of the Trust with such terms as may be set out
in any amendment to this Declaration.
"Regular Trustee" means any Trustee other than the Delaware Trustee
and the Property Trustee (as hereinafter defined).
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Sponsor" means the Parent in its capacity as sponsor of the Trust.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees
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in accordance with the provisions hereof, and references herein to a Trustee or
the Trustees shall refer to such Person or Persons solely in their capacity as
trustees hereunder.
ARTICLE II
ORGANIZATION
SECTION 2.1 Name.
The Trust created by this Declaration is named "International Paper
Capital Trust IV." The Trust's activities may be conducted under the name of the
Trust or any other name deemed advisable by the Regular Trustees.
SECTION 2.2 Office.
The address of the principal office of the Trust is c/o
International Paper Company, Two Manhattanville Road, Purchase, New York 10577.
At any time, the Regular Trustees may designate another principal office.
SECTION 2.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 2.4 Authority.
Subject to the limitations provided in this Declaration, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Regular
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Trustees acting on behalf of the Trust, no person shall be required to inquire
into the authority of the Regular Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Regular Trustees as set forth in this Declaration.
SECTION 2.5 Title to Property of the Trust.
Legal title to all assets of the Trust shall be vested in the Trust.
SECTION 2.6 Powers of the Trustees.
The Regular Trustees shall have the exclusive power and authority to
cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided,
however, that the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities and the
issuance of the Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common
Securities;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute, if necessary, an offering circular (the
"Offering Circular") in preliminary and final form
prepared by the Sponsor, in relation to the offering and
sale of Preferred Securities to qualified institutional
buyers in reliance on Rule 144A under the Securities Act
of 1933, as amended (the "Securities Act") and outside
the United States to non-U.S. persons in offshore
transactions in reliance on
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Regulation S under the Securities Act;
(ii) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement
filed on Form S-3 prepared by the Sponsor, including any
amendments thereto in relation to the Preferred
Securities;
(iii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be
necessary in order to qualify or register all or part of
the Preferred Securities in any State or foreign
jurisdiction in which the Sponsor has determined to
qualify or register such Preferred Securities for sale;
(iv) execute and file an application, prepared by the
Sponsor, to the Private Offerings, Resale and Trading
through Automated Linkages ("PORTAL") Market and at such
time as determined by the Sponsor to the New York Stock
Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation of the
Preferred Securities;
(v) to execute and deliver letters, documents, or
instruments with the Depository Trust Company relating
to the Preferred Securities;
(vi) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on
Form 8-A, including any amendments thereto, prepared by
the Sponsor relating to the registration of the
Preferred Securities
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under Section 12(b) of the Exchange Act; and
(vii) execute and enter into purchase agreements, registration
rights agreements and other related agreements providing
for the sale of the Preferred Securities;
(c) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors,
advisors, and consultants and provide for reasonable
compensation for such services;
(d) to incur expenses which are necessary or incidental to carry
out any of the purposes of this Declaration, which expenses
shall be paid for the Sponsor in all respects; and
(e) to execute all documents or instruments, perform all duties
and powers, and do all things for and on behalf of the Trust
in all matters necessary or incidental to the foregoing.
SECTION 2.7 Filing of Certificate of Trust.
On or after the date of execution of this Declaration, the Trustees
shall cause the filing of the Certificate of Trust for the Trust in the form
attached hereto as Exhibit A with the Secretary of State of the State of
Delaware.
SECTION 2.8 Duration of Trust.
The Trust, absent termination pursuant to the provisions of Section
5.2, shall have existence until forty (40) years from the date hereof.
SECTION 2.9 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclu-
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sive right and responsibility to engage in the following activities:
(a) to prepare, if necessary, the Offering Circular, and to
prepare for filing by the Trust with the Commission the
registration statement on Form S-3, including any amendments
thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or
part of the Preferred Securities and to do any and all such
acts, other than actions which must be taken by the Trust, and
advise the Trust of actions it must take, and prepare for
execution and filing any documents to be executed and filed by
the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States
and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to PORTAL
and to the New York Stock Exchange or any other national stock
exchange or the Nasdaq National Market for listing or
quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act, including any amendments thereto; and
(e) to negotiate the terms of purchase agreements, registration
rights agreements and other related agreements providing for
the sale of the Preferred Securities.
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ARTICLE III
TRUSTEES
SECTION 3.1 Trustees.
The initial number of Trustees shall be four (4), and thereafter the
number of Trustees shall be such number as shall be fixed from time to time by a
written instrument signed by the Sponsor. The Sponsor is entitled to appoint or
remove without cause any Trustee at any time; provided, however, that the number
of Trustees shall in no event be less than four (4); and provided further that
one Trustee, in the case of a natural person, shall be a person who is a
resident of the State of Delaware or which, if not a natural person, an entity
which has its principal place of business in the State of Delaware (the
"Delaware Trustee"). Except as expressly set forth in this Declaration, any
power of the Regular Trustees may be exercised by, or with the consent of, a
majority of the Regular Trustees.
The initial Regular Trustees shall be:
Robert C. McPhillips
Virginia A. Lane
Roger Becker
The initial Delaware Trustee shall be:
The Bank of New York (Delaware)
Prior to the issuance of the Preferred Securities and Common
Securities, the Sponsor shall appoint another trustee (the "Property Trustee")
meeting the requirements of the Trust Indenture Act of 1939, as amended, by the
execution of an amendment to this Declaration executed by the Regular Trustees,
the Sponsor, the Property Trustee and the Delaware Trustee.
SECTION 3.2 Delaware Trustee
Notwithstanding any other provision of this Declaration, the
Delaware Trustee in its capacity as Delaware Trustee shall not be entitled to
exercise any of the powers, nor shall the Delaware Trustee in its capaci-
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ty as Delaware Trustee have any of the duties and responsibilities of the
Regular Trustees described in this Declaration. The Delaware Trustee in its
capacity as Delaware Trustee shall be a Trustee for the sole and limited purpose
of fulfilling the requirements of ss. 3807 of the Business Trust Act.
SECTION 3.3 Execution of Documents
(a) Unless otherwise determined by the Regular Trustees, and except
as otherwise required by the Business Trust Act, any Regular Trustee is
authorized to execute on behalf of the Trust any documents which the Regular
Trustees have the power and authority to cause the Trust to execute pursuant to
Section 2.6; provided, that, the registration statement referred to in Section
2.6(b)(i), including any amendment thereto, shall be signed by a majority of the
Regular Trustees; and
(b) a Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 2.6.
ARTICLE IV
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 4.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions; and
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(b) an Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts pertinent to the existence and amount of assets from
which distributions to Holders of Securities might properly be paid.
SECTION 4.2 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities of such Indemnified
Person;
(b) unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
Covered Persons; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or
provides terms that are, fair and reasonable to the
Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party
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(including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise; and
(c) whenever in this Declaration an Indemnified Person is permitted
or required to make a decision:
(i) in its "discretion" or under a grant of similar
authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires,
including its own interests, and shall have no duty or
obligation to give any consideration to any interest of
or factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not be
subject to any other or different standard imposed by this Declaration or by
applicable law.
SECTION 4.3 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage or claim incurred by such Indemnified Person by reason of any act
or omission performed or omitted by such Indemnified Person in good faith on
behalf of the Trust and in a manner such Indemnified Person reasonably believed
to be within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such
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Indemnified Person by reason of negligence or willful misconduct with respect to
such acts or omissions; and
(b) to the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by an Indemnified Person in defending any claim,
demand, action, suit or proceeding shall, from time to time, be advanced by the
Sponsor prior to the final disposition of such claim, demand, action, suit or
proceeding upon receipt by the Sponsor of an undertaking by or on behalf of the
Indemnified Person to repay such amount if it shall be determined that the
Indemnified Person is not entitled to be indemnified as authorized in Section
4.3(a).
SECTION 4.4 Outsider Businesses.
Any Covered Person and the Delaware Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the business of the
Trust, and the Trust and the Holders of Securities shall have no rights by
virtue of this Declaration in and to such independent ventures or the income or
profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person or the Delaware Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if such
opportunity is of a character that, if presented to the Trust, could be taken by
the Trust, and any Covered Person and the Delaware Trustee shall have the right
to take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person and the Delaware Trustee may engage or be interested in any
financial or other transaction with the Sponsor or any Affiliate of the Sponsor,
or may act as depositary for, trustee or agent for or may act on any committee
or body of holders of, securities or other obligations of the Sponsor or its
Affiliates.
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ARTICLE V
AMENDMENTS, TERMINATION, MISCELLANEOUS
SECTION 5.1 Amendments.
At any time before the issue of any Securities, this Declaration may
be amended by, and only by, a written instrument executed by all of the Regular
Trustees and the Sponsor; provided, however, that if the amendment effects the
rights, powers, duties, obligations or immunities of the Delaware Trustee, the
amendment shall also be approved in writing by the Delaware Trustee.
SECTION 5.2 Termination of Trust.
(a) The Trust shall terminate and be of no further force or
effect:
(i) upon the bankruptcy of the Sponsor;
(ii) upon the filing of a certificate of dissolution or its
equivalent with respect to the Sponsor or the revocation
of the Sponsor's charter or of the Trust's certificate
of trust;
(iii) upon the entry of a decree of judicial dissolution of
the Sponsor, or the Trust; and
(iv) before the issue of any Securities, with the consent of
all of the Regular Trustees and the Sponsor; and
(b) as soon as is practicable after the occurrence of an event
referred to in Section 5.2(a), the Trustees shall file a
certificate of cancellation with the Secretary of State of the
State of Delaware.
SECTION 5.3 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all
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rights and remedies shall be governed by such laws without regard to principles
of conflict of laws.
SECTION 5.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 5.5 Successors and Assigns
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 5.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 5.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written
Robert C. McPhillips
as Trustee
/s/ Robert C. McPhillips
- -----------------------------
Virginia A. Lane
as Trustee
/s/ Virginia A. Lane
- -----------------------------
Roger Becker
as Trustee
/s/ Roger Becker
- -----------------------------
The Bank of New York (Delaware),
as Delaware Trustee
By: /s/ Fred Clark
-----------------------------
Name: Fred Clark
Title: Authorized Signatory
International Paper Company,
as Sponsor
By: /s/ James Guedry
-----------------------------
Name: James Guedry
Title: Vice President and Secretary
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CERTIFICATE OF TRUST Exhibit A
The undersigned, the trustees of International Paper Capital Trust
IV desiring to form a business trust pursuant to Delaware Business Trust Act, 12
Del. C. ss. 3810 hereby certify as follows:
a. The name of the business trust being formed hereby (the
"Trust") is International Paper Capital Trust IV.
b. The name and business address of the trustee of the Trust
which has its principal place of business in the State of
Delaware is as follows: The Bank of New York (Delaware), White
Clay Center, Route 273, Newark, Delaware 19711
Dated: August 28, 1998
Robert C. McPhillips
as Trustee
------------------------------
Virginia A. Lane
as Trustee
------------------------------
Roger Becker
as Trustee
------------------------------
The Bank of New York (Delaware),
as Delaware Trustee
------------------------------
Name:
Title:
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Exhibit 4.11
=======================================
AMENDED AND RESTATED DECLARATION
OF TRUST
INTERNATIONAL PAPER CAPITAL TRUST III
Dated as of [Date]
=======================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions......................................................2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.................................9
SECTION 2.2 Lists of Holders of Securities..................................10
SECTION 2.3 Reports by the Property Trustee.................................10
SECTION 2.4 Periodic Reports to Property Trustee............................10
SECTION 2.5 Evidence of Compliance with Conditions
Precedent.......................................................11
SECTION 2.6 Events of Default; Waiver.......................................11
SECTION 2.7 Event of Default; Notice........................................13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name............................................................14
SECTION 3.2 Office..........................................................14
SECTION 3.3 Purpose.........................................................14
SECTION 3.4 Authority.......................................................14
SECTION 3.5 Title to Property of the Trust..................................15
SECTION 3.6 Powers and Duties of the Regular Trustees.......................15
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees........................................................19
SECTION 3.8 Powers and Duties of the Property Trustee.......................20
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee................................................22
SECTION 3.10 Certain Rights of Property Trustee..............................24
SECTION 3.11 Delaware Trustee................................................27
SECTION 3.12 Execution of Documents..........................................27
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities......................................................27
SECTION 3.14 Duration of Trust...............................................28
SECTION 3.15 Mergers.........................................................28
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.........................30
SECTION 4.2 Responsibilities of the Sponsor.................................30
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees..............................................31
<PAGE>
SECTION 5.2 Delaware Trustee................................................31
SECTION 5.3 Property Trustee; Eligibility...................................32
SECTION 5.4 Qualifications of Regular Trustees and
Delaware Trustee Generally......................................33
SECTION 5.5 Initial Trustees................................................33
SECTION 5.6 Appointment, Removal and Resignation of
Trustees........................................................34
SECTION 5.7 Vacancies among Trustees........................................36
SECTION 5.8 Effect of Vacancies.............................................36
SECTION 5.9 Meetings........................................................36
SECTION 5.10 Delegation of Power.............................................37
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions...................................................37
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.........................38
SECTION 7.2 Execution and Authentication....................................38
SECTION 7.3 [RESERVED]......................................................39
SECTION 7.4 Registrar, Paying Agent and Conversion Agent....................39
SECTION 7.5 Paying Agent to Hold Money in Trust.............................40
SECTION 7.6 [RESERVED]......................................................40
SECTION 7.7 [RESERVED]......................................................40
SECTION 7.8 Outstanding Preferred Securities................................41
SECTION 7.9 Preferred Securities in Treasury................................41
SECTION 7.10 [RESERVED]......................................................41
SECTION 7.11 Cancellation....................................................41
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust............................................42
ARTICLE IX
TRANSFER
SECTION 9.1 General.........................................................43
SECTION 9.2 Transfer of Certificates........................................44
SECTION 9.3 Deemed Security Holders.........................................45
SECTION 9.4 Book Entry Interests............................................45
SECTION 9.5 Notices to Clearing Agency......................................46
SECTION 9.6 Appointment of Successor Clearing Agency........................46
SECTION 9.7 Definitive Preferred Security Certificates......................47
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates....................................................48
<PAGE>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability.......................................................48
SECTION 10.2 Exculpation.....................................................49
SECTION 10.3 Fiduciary Duty..................................................50
SECTION 10.4 Indemnification.................................................51
SECTION 10.5 Outside Businesses..............................................52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.....................................................52
SECTION 11.2 Certain Accounting Matters......................................52
SECTION 11.3 Banking.........................................................53
SECTION 11.4 Withholding.....................................................54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments......................................................54
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent..............................................56
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee.........................................................59
SECTION 13.2 Representations and Warranties of Delaware
Trustee.........................................................60
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.........................................................61
SECTION 15.2 Governing Law...................................................62
SECTION 15.3 Intention of the Parties........................................62
SECTION 15.4 Headings........................................................63
SECTION 15.5 Successors and Assigns..........................................63
SECTION 15.6 Partial Enforceability..........................................63
SECTION 15.7 Counterparts....................................................63
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- -------------------
310............................................................ 2.1(c)
310(a)......................................................... Inapplicable
310(b)......................................................... 5.3(c),(d)
311(a)......................................................... 2.2(b)
311(b)......................................................... 2.2(b)
311(c)......................................................... Inapplicable
312(a)......................................................... Inapplicable
312(b)......................................................... 2.2(b)
313............................................................ 2.3
314............................................................ 2.4
314(a)......................................................... 3.6(j)
314(b)......................................................... Inapplicable
314(c)......................................................... 2.5
314(d)......................................................... Inapplicable
314(f)......................................................... Inapplicable
315(a)......................................................... Inapplicable
315(c)......................................................... Inapplicable
315(d)......................................................... Inapplicable
316(a)......................................................... Inapplicable
316(c)......................................................... 3.6(e)
317............................................................ 2.1(c)
317(b)......................................................... 3.8(h)
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* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
INTERNATIONAL PAPER CAPITAL TRUST III
[Date]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [Date], by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), International Paper
Company, a New York corporation, as trust sponsor (the "Sponsor"), and by the
holders, from time to time, of undivided beneficial interests in the Trust
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the
"Trust") under the Delaware Business Trust Act pursuant to a Declaration of
Trust dated as of [Date], (the "Original Declaration") and a Certificate of
Trust filed with the Secretary of State of Delaware on [Date], for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 9.4.
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"Business Day" means any day other than a day on which banking
institutions in New York, New York and in London, England are authorized or
required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to time.
"Certificate" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Closing Date" means [Date].
"Code" means the Internal Revenue Code of 1986 as amended.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Common Securities.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means the Sponsor in its capacity as issuer of
the Debentures.
"Debenture Trustee" means [Debenture Trustee], a [___________]
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be
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held by the Property Trustee, a specimen certificate for such series of
Debentures being Exhibit B.
"Definitive Preferred Securities" means the Preferred Securities in
definitive form issued by the Trust.
"Definitive Preferred Security Certificate" has the meaning set
forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"Depositary" means The Depository Trust Company, the initial
Clearing Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of [Date], between the
Debenture Issuer and [Trustee], as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Investment Company" means an investment company as defined in the
Investment Company Act.
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"Investment Company Act" means the U.S. Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation preference of the Securities" means, except
as provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation preference
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer
in rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied
with.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges or securities deposited with the Clearing
Agency.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Preferred Securities.
"Preferred Securities" has the meaning specified in Section 7.1(a).
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
"Prospectus Supplement", as used in Annex I hereto, means the
prospectus supplement, dated as of [Date], relating to the issuance and sale by
the Trust of Preferred Securities.
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"Purchase Agreement" shall have the meaning set forth in Section
7.3(a).
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Register" has the meaning set forth in Section 7.4.
"Regular Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
any vice-president, any assistant vice-president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any other officer in
the Corporate Trust Department of the Property 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 that officer's knowledge of
and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the
Global Preferred Security and any other Preferred Security in global form.
"66-2/3% in liquidation preference of the Securities" means, except
as provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holders of outstanding Securities voting together as a single class or, as
the context may require, Holders of Preferred Securities or Holder(s) of
outstanding Common Securities voting separately as a class, representing at
least 66-2/3%
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<PAGE>
of the aggregate liquidation preference (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions, to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Sponsor" means International Paper Company, a New York corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(c).
"Successor Property Trustee" has the meaning set forth in Section
5.6(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the Regular Trustees shall have received an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to or change in an
interpretation or application of such laws or regulations, there is more than an
insubstantial risk that (i) the Trust would be subject to United States federal
income tax with respect to income accrued or received on the Subordinated Debt
Securities, (ii) interest payable to the Trust on the Subordinated Debt
Securities would not be deductible by the Debenture Issuer for United States
federal income tax purposes or (iii) the Trust would be subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
"10% in liquidation preference of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holders of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, representing 10% of
the aggregate liquidation preference (including the stated amount that would be
paid on redemption, liquidation or
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<PAGE>
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration, which are
incorporated by reference in and made part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by ss. 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
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<PAGE>
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity) provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under ss.
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Preferred Securities such reports, if any, as are
required by ss. 313 of the Trust Indenture Act in the form and in the manner
provided by ss. 313 of the Trust Indenture Act. The Property Trustee shall also
comply with the requirements of ss. 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
(if any) as required by ss. 314 of the Trust Indenture Act and the compliance
certificate required by ss. 314 of the Trust Indenture Act in
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the form, in the manner and at the times required by ss. 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in ss. 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to ss.
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation preference of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion
in liquidation preference of the Preferred Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities
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shall also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the Common Securities
for all purposes of this Declaration without any further act, vote, or consent
of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation preference of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 2.6(b),
the Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided below
in this Section 2.6(b), the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the proportion in
liquidation preference of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. Subject to the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no
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such waiver shall extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities known to the Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7(a) being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "International Paper Capital Trust III," as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
International Paper Company, Two Manhattanville Road, Purchase, New York 10577,
Attention: John R. Jepsen. On ten Business Days written notice to the Holders of
Securities, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the Trustees
to bind the
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Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement filed on Form S-3
prepared by the Sponsor, including any amendments thereto in relation to
the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any State
or foreign jurisdiction in which the Sponsor has determined to qualify or
register such Preferred Securities for sale;
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(iii) execute and file an application, prepared by or on
behalf of the Sponsor, at such time as determined by the Sponsor, to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing or quotation of the Preferred Securities;
(iv) to execute and deliver letters, documents, or instruments
with The Depository Trust Company relating the Preferred Securities;
(v) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A, including
any amendments thereto, prepared by the Sponsor relating to the
registration of the Preferred Securities under Section 12(b) of the
Exchange Act; and
(vi) execute and enter into the Purchase Agreement,
Registration Rights Agreement and other related agreements providing for
the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders or Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event; provided that the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of ss. 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
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(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by ss. 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election (i) to defer
payments of interest on the Debentures by extending the interest payment period
under the Indenture or (ii) to extend the scheduled maturity date on the
Debentures;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of
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the Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their discretion to
be necessary or desirable in carrying out the activities of the Trust as set out
in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes,
provided that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
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SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not and the Trustees
(including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) (A) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under Section 513
of the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an insubstantial risk that
for United States Federal income tax purposes the Trust will not be
classified as a grantor trust or partnership.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Property Trustee, deposit such funds into
the Property Trustee Account and make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration;
(ii) engage in such ministerial activities as so directed and
as shall be necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as so directed as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain special events (as may be defined in the terms
of the
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Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with an Event of Default or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Property Trustee will act as Paying Agent and Registrar in
New York (the "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with ss. 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers
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or the authority of the Regular Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Property Trustee; and
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(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation preference of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or adequate
indemnity against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Property Trustee Account shall be to deal with such property in a
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similar manner as the Property Trustee deals with similar property for its
own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree with
the Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently evidenced
by an Officers' Certificate;
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(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with respect
to legal matters or advice within the scope of such experts' area of
expertise 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 accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include any of
its employees. The Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee adequate security and indemnity, which
would satisfy a reasonable person in the position of the Property Trustee,
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Property Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
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(vii) the Property 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, security, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Property 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 Property 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;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient
and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so act
or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation preference of the Securities
as would be entitled to direct the Property Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
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(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of ss. 3807 of the
Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to execute pursuant to Section 3.6; provided that, the
registration statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by all of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the
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value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall exist until forty (40) years from the date of its formation.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other entity or person,
except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State or the
District of Columbia; provided that:
(i) if the Trust is not the surviving entity, the successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") as long as the
Successor Securities rank, with respect to participation in
the profits and distributions or in the assets of the
Successor Entity at least as high as the Preferred Securities
rank with respect to participation in the profits and
dividends or in the assets of the Trust;
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(ii) the Debenture Issuer expressly acknowledges such
Successor Entity as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other
organization on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the powers, preferences and other special rights
of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (reasonably acceptable to the Property
Trustee) to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a grantor
trust for United States Federal income tax purposes;
(B) following such merger, consolidation, amalgamation
or replacement, neither the Sponsor nor the Successor Entity will be
required to register as an Investment Company; and
(C) such merger, consolidation, amalgamation or
replacement will not adversely affect the limited liability of the
Holders of the
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Securities (including any Successor Securities); and
(viii) the Sponsor provides a guarantee to the Holders of the
Successor Securities with respect to the Successor Entity having
substantially the same terms as the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation preference of the Common
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all the Common
Securities issued by the Trust, in an aggregate liquidation preference equal to
3% of the total capital of the Trust, at the same time as the Preferred
Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission the
registration statement on Form S-3, including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions
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it must take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to PORTAL and
to the New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of the Purchase Agreement, Registration
Rights Agreement and other related agreements providing for the sale of the
Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees shall initially be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
preference of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities; provided that, if the Property Trustee does
not also act as Delaware Trustee, the number of Trustees shall be at least five
(5).
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be an entity which has its
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principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law; provided that, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of ss. 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of ss. 310(b) of the Trust Indenture Act.
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(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in ss. 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Initial Trustees.
The initial Regular Trustees shall be:
[_____________________]
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
[_____________________]
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
[_____________________]
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
The initial Delaware Trustee shall be:
[Delaware Trustee]
[address]
Attention: [Corporate Trust Trustee
Administration]
The initial Property Trustee shall be:
[Property Trustee]
[address]
Attention: [Corporate Trust Trustee
Administration]
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SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities by vote of the
Holders of a Majority in liquidation preference of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.6(a) until a successor Property Trustee (the
"Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees and the Sponsor; and
(c) The Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such
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Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders
of the Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Sponsor
and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall
be effective until the 60th day following delivery of the instrument of
resignation of the Special Regular Trustee to the Sponsor and the Trust or
such later date specified in such instrument during which period the
Holders of the Preferred Securities shall have the right to appoint a
successor Special Regular Trustee as provided in this Section 5.6; and
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery to the Sponsor and the Trust of an instrument
of resignation, the resigning Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
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SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy in the number
of Regular Trustees shall occur, until such vacancy is filled by the appointment
of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.9 Meetings.
Meetings of the Regular Trustees shall be held from time to time
upon the call of any Regular Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meetings of the Regular Trustees shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting
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has not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
SECTION 5.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Debenture Issuer makes a payment of
interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)) premium and principal on the
Debentures held by the Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is directed, to the extent
funds are available for that purpose, to make a distribution (a "Distribution")
of the Payment Amount to Holders.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities, representing undivided beneficial interests in
the assets of the Trust (the "Preferred Securities"), having such terms (the
"Terms") as are set forth in Annex I and one class of common securities,
representing undivided beneficial interests in the assets of the Trust (the
"Common Securities"), having such terms as are set forth in Annex I. The Trust
shall have no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities. The Trust shall issue
no Securities in bearer form.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable, subject to Section 10.1 with respect to the Common Securities.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by one
Regular Trustee. In case any Regular Trustee of the Trust who shall have signed
any of the Securities shall cease to be such Regular Trustee before the
Securities so signed shall be delivered by the Trust, such Securities
nevertheless may be delivered as though the person who signed such Securities
had not ceased to be such Regular Trustee; and any Securities may be signed on
behalf of the Trust by such persons who, at the actual date of
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execution of such Security, shall be the Regular Trustees of the Trust, although
at the date of the execution and delivery of the Declaration any such person was
not such a Regular Trustee.
(b) One Regular Trustee shall sign the Preferred Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. The signature
shall be conclusive evidence that the Preferred Security has been authenticated
under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Preferred Securities for original issue
in accordance with paragraph 5 of the Securities. The aggregate number of
Preferred Securities outstanding at any time shall not exceed the number set
forth in the Terms in Annex A hereto except as provided in Section 7.7.
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.3 [RESERVED].
SECTION 7.4 Registrar, Paying Agent and Conversion Agent.
In the event that the Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, (i) an office or agency where Preferred Securities may
be presented for registration of transfer or exchange ("Registrar"), (ii) an
office or agency where Preferred Securities may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Preferred
Securities and of their transfer and exchange. The Trust
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may appoint the Registrar, the Paying Agent and the Conversion Agent and may
appoint one or more co-registrars, one or more additional paying agents and one
or more additional conversion agents in such other locations as it shall
determine. The term "Paying Agent" includes any additional paying agent. The
Trust may change any Paying Agent, Registrar or co-registrar without prior
notice to any Holder. The Trust shall notify the property Trustee of the name
and address of any Agent not a party to this Declaration. If the Trust fails to
appoint or maintain another entity as Registrar or Paying Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent or Registrar. The Trust shall act as Paying Agent, Registrar or
co-registrar for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of principal or distribution on the Securities, and will notify
the Property Trustee if there are insufficient funds. While any such
insufficiency continues, the Property Trustee may require a Paying Agent to pay
all money held by it to the Property Trustee. The Trust at any time may require
a Paying Agent to pay all money held by it to the Property Trustee and to
account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the money. If the Trust or the Sponsor or an
Affiliate of the Trust or the Sponsor acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent.
SECTION 7.6 [RESERVED].
SECTION 7.7 [RESERVED].
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SECTION 7.8 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.7 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the
terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
A Preferred Security does not cease to be outstanding because one of
the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.9 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Property Trustee knows are so owned shall be so disregarded.
SECTION 7.10 [RESERVED].
SECTION 7.11 Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Conversion
Agent shall forward to the Property Trustee any Preferred Securities surrendered
to them for registration of transfer, redemption, conversion, exchange or
payment. The Property Trustee shall promptly cancel all Preferred Securities,
surrendered for registration of transfer, redemption, conversion, exchange,
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payment, replacement or cancellation and shall dispose of cancelled Preferred
Securities as the Trust directs. The Trust may not issue new Preferred
Securities to replace Preferred Securities that it has paid or that have been
delivered to the Property Trustee for cancellation or that any holder has
converted.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Trust shall terminate upon the earliest to occur of the
following:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect to the
Trust or the revocation of the charter of the Holder of the Common
Securities or the Sponsor and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(iv) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Securities;
(v) the occurrence and continuation of a Tax Event pursuant to
which the Trust shall have been dissolved in accordance with the terms of
the Securities and all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all of the
Securities; or
(vi) the expiration of the term of the Trust on forty (40)
years from the date of its formation.
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(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER AND EXCHANGE
SECTION 9.1 General.
(a) Where Preferred Securities are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal number of Preferred Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and
exchanges, the Trust shall issue and the Property Trustee shall authenticate
Preferred Securities at the Registrar's request.
(b) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
Subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
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(c) The Regular Trustees shall provide for the registration of
Securities and of transfers of Securities, which will be effected without charge
but only upon payment (with such indemnity as the Regular Trustees may require)
in respect of any tax or other governmental charges that may be imposed in
relation to it. Upon surrender for registration of transfer of any Securities,
the Regular Trustees shall cause one or more new Securities to be issued in the
name of the designated transferee or transferees. Every Security surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Security shall be entitled to the rights and subject
to the obligations of a Holder hereunder upon the receipt by such transferee of
a Security. By acceptance of a Security, each transferee shall be deemed to have
agreed to be bound by this Declaration.
(d) The Trust shall not be required (i) to issue, register the
transfer of, or exchange, Preferred Securities during a period beginning at the
opening of business 15 days before the day of any selection of Preferred
Securities for redemption set forth in the terms and ending at the close of
business on the day of selection, or (ii) to register the transfer or exchange
of any Preferred Security so selected for redemption in whole or in part, except
the unredeemed portion of any Preferred Security being redeemed in part.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such
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Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be cancelled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed to
have agreed to be bound by this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the Property
Trustee, the Registrar or an co-registrar shall have actual or other notice
thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to the Depositary,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of the Depositary, and no Preferred
Security Beneficial Owner will receive a Definitive Preferred Security
Certificate representing such Preferred Security Beneficial Owner's interests in
such Global Certificates, except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
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(b) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the payment of
Distributions on the relevant Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Preferred
Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this Section
9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Depositary and shall be limited to those established
by law and agreements between such Preferred Security Beneficial Owners and the
Depositary and/or the Participants and receive and transmit payments of
Distributions on the Global Certificates to such Participants. The Depositary
will make book entry transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Depositary, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Securities.
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SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency notifies the Sponsor and the Trust that it
elects to discontinue its services as securities depositary with respect
to the Preferred Securities or if at any time such Clearing Agency ceases
to be a "clearing agency" registered under the Exchange Act and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor
and the Trust to terminate the book entry system through the Clearing
Agency with respect to the Preferred Securities; or
(c) an Event of Default has occurred and is continuing,
then:
(d) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(e) Upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be liable
for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made
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pursuant thereto or with any rule or regulation of any stock exchange on
which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 9.8 shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the
Securities the Sponsor shall not be:
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(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders
of the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts
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pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this Declaration
or by applicable law.
SECTION 10.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking
by or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.4(a). The
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indemnification shall survive the termination of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents,
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which shall reflect in reasonable detail, each transaction of the Trust. The
books of account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States federal
income tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year by a firm of
independent certified public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
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the Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustee shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
and
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(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of
the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
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(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation preference of the Common Securities and;
(f) the rights of the holders of the Common Securities under Article
V to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
preference of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or privileges of the
Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider
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and act on any matter on which Holders of such class of Securities are entitled
to act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 10% in liquidation
preference of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more requests in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in writing the Certificates held
by the Holders of Securities exercising the right to call a meeting and only
those Securities represented by the Certificates so specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning
not less than the minimum aggregate liquidation preference of Securities
that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders of Securities entitled to vote who
have not consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the purpose of taking
any action
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without a meeting shall be returned to the Trust within the time specified
by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is entitled
to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Preferred Securities are then listed or
trading, provide otherwise, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to the exercise of
any such right to vote.
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ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the time of Closing, and each Successor Property Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee will have valid
ownership interest in the Debentures for the benefit of the holders of the
Securities in each case free from liens, encumbrances and defects.
(e) No consent, approval or authorization of, or registration with
or notice to, any State or Federal banking
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authority is required for the execution, delivery or performance by the Property
Trustee, of the Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the time of Closing, and each Successor Delaware Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(b) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. The Declaration has been duly executed and
delivered by the Delaware Trustee, and constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the Declaration.
(e) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
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(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The Declaration
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Attention: James W. Guedry
(b) if given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of to
the Holders of the Securities):
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[Property Trustee]
[address]
Attention: [Corporate Trust Trustee
Administration]
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Attention: Office of the Treasurer
(d) if given to any other Holder, at the address set forth on the
books and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 15.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
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SECTION 15.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 15.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
[____________________]
as Trustee
______________________________________
[____________________]
as Trustee
______________________________________
[____________________]
as Trustee
______________________________________
[DELAWARE TRUSTEE],
as Delaware Trustee
By:___________________________________
Name:
Title:
[PROPERTY TRUSTEE], as
Property Trustee
By:___________________________________
Name:
Title:
INTERNATIONAL PAPER COMPANY
as Sponsor
By:___________________________________
Name:
Title:
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ANNEX I
TERMS OF
[___]% PREFERRED SECURITIES
[___]% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of [Date] (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus Supplement referred to below):
1. Designation and Number.
(a) "Preferred Securities." [_______] Preferred Securities of the Trust
with an aggregate liquidation preference with respect to the assets
of the Trust of [__________] Dollars ($[_________])[, plus up to an
additional [______________] Preferred Securities of the Trust with
an aggregate liquidation preference with respect to the assets of
the Trust of [______________] Dollars ($[________]) solely to cover
over-allotments, as provided for in the underwriting agreement (the
"Additional Preferred Securities"),] and a liquidation preference
with respect to the assets of the Trust of $[ ] per Preferred
Security, are hereby designated for the purposes of identification
only as "[___]% Convertible Preferred Securities (liquidation
preference $[__] per Preferred Security)" (the "Preferred
Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form attached
hereto as Exhibit A-1, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange or other
organization on which the Preferred Securities are listed.
(b) "Common Securities." [_____] Common Securities of the Trust with an
aggregate liquidation preference with respect to the assets of the
Trust of [_______________________] Dollars ($[________])[, plus
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up to an additional [____] Common Securities of the Trust with an
aggregate liquidation preference with respect to the assets of the
Trust of [____________________] Dollars ($[_______]) to meet the
capital requirements of the Trust in the event of an issuance of
Additional Preferred Securities,] and a liquidation amount with
respect to the assets of the Trust of $[__] per Common Security, are
hereby designated for the purposes of identification only as "[___]%
Common Securities (liquidation amount $[__] per Common Security)"
(the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form
attached hereto as Exhibit A-2, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of [___]% (the "Coupon Rate") of the stated liquidation amount
of $[__] per Security, such rate being the rate of interest payable
on the Debentures to be held by the Property Trustee. Distributions
in arrears for more than one [semi-annual period] [quarter] will
bear interest thereon compounded [semi-annually] [quarterly] at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and
any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the
Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full
[semi-annually] [quarterly] Distribution period on the basis of a
360-day year of twelve 30-day months, and for any period shorter
than a full [semi-annually] [quarterly] Distribution period for
which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accrue from
the date of original issuance and will be payable [semi-annually]
[quarterly] in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures:
[_________], of each year, commencing on [________________], except
as otherwise described below. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the
interest payment period from
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time to time on the Debentures for a period not exceeding
[_________] consecutive [semi-annual periods] [quarters] (each an
"Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral,
[semi-annually] [quarterly] Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded [semi-annually] [quarterly] during any
such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed
[_________] consecutive [semi-annual periods] [quarters]. Payments
of accrued Distributions will be payable to Holders as they appear
on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the
relevant record dates. The relevant record dates shall be 15 days
prior to the relevant payment dates, except as otherwise described
in this Annex I to the Declaration. Subject to any applicable laws
and regulations and the provisions of the Declaration, each such
payment in respect of Preferred Securities being held in book-entry
form through The Depository Trust Company (the "Depositary") will be
made as described under the heading ["Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust
Company"] in the Prospectus Supplement. The relevant record dates
for the Common Securities shall be the same record dates as for the
Preferred Securities. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a
result of the Debenture Issuer having failed to make a payment under
the Debentures, will cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in
whose name such Securities are registered on the special record date
or other specified date determined in accordance with the Indenture.
If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in
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respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders
of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors of the trust an amount
equal to the aggregate of the stated liquidation preference of $[__] per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless, in connection with
such dissolution, winding-up or termination, Debentures in an aggregate
principal amount equal to the aggregate stated liquidation preference of such
Securities, with an interest rate equal to the Coupon Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis in accordance
with paragraph 9 hereof.
4. Redemption and Distribution.
(a) Upon the repayment or payment of the Debentures in whole or in part,
whether at maturity or upon redemption or otherwise, the proceeds
from such repayment or redemption shall be simultaneously applied to
redeem Securities having an aggregate liquidation preference equal
to the aggregate principal amount of the Debentures so repaid or
redeemed at a redemption price of $[__] per Security together with
accrued and unpaid Distributions thereon through the date of the
redemption, payable in cash (the "Redemption Price"). Holders will
be given not less than 30 nor more than 60
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days' notice of such redemption. Upon the repayment of the
Debentures at maturity or upon any acceleration, earlier redemption
or otherwise, the proceeds from such repayment will be applied to
redeem the Securities, in whole, upon not less than 30 nor more than
60 days' notice.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be as
described in Paragraph 4(e)(ii) below.
(c) If, at any time, a Tax Event shall occur and be continuing the
Sponsor shall cause the Regular Trustees to liquidate the Trust and,
after satisfaction of creditors of the Trust, cause Debentures to be
distributed to the Holders of the Securities in liquidation of the
Trust within 90 days following the occurrence of such Tax Event (the
"90 Day Period"); provided, however, that such liquidation and
distribution shall be conditioned on (i) the Regular Trustees'
receipt of an opinion of a nationally recognized independent tax
counsel (reasonably acceptable to the Regular Trustees) experienced
in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the
effect that the Holders of the Securities will not recognize any
income, gain or loss for United States Federal income tax purposes
as a result of such liquidation and distribution of Debentures, and
(ii) the Sponsor being unable to avoid such Tax Event within such 90
Day Period by taking some ministerial action or pursuing some other
reasonable measure that, in the sole judgment of the Sponsor, will
have no adverse effect on the Trust, the Sponsor or the Holders of
the Securities and will involve no material cost ("Ministerial
Action").
If (i) the Debenture Issuer has received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax
counsel (reasonably accept able to the Regular Trustees) experienced
in such matters that, as a result of a Tax Event, there is more than
an insubstantial risk that the Debenture Issuer would be precluded
from deducting the interest on the Debentures for United States
Federal income tax purposes, even after the Debentures were
distributed to the Holders of Securities upon liquidation of the
Trust as described in this paragraph 4(c), or (ii) the Regular
Trustees shall have been informed by such tax counsel that it cannot
deliver a No Recognition Opinion, the Debenture Issuer shall have
the right, upon
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not less than 30 nor more than 60 days' notice, and within 90 days
following the occurrence of such Tax Event, to redeem the Debentures
in whole (but not in part) for cash, at the Tax Event Prepayment
Price plus accrued and unpaid interest and, following such
redemption, all the Securities will be redeemed by the Trust at the
Tax Event Redemption Price plus accrued and unpaid distributions;
provided, however, that, if at the time there is available to the
Debenture Issuer or the Trust the opportunity to eliminate, within
such 90 Day Period, the Tax Event by taking some Ministerial Action,
the Trust or the Debenture Issuer will pursue such Ministerial
Action in lieu of redemption.
"Adjusted Treasury Rate" means, with respect to any
prepayment date, the rate per annum equal to the [semi-annual]
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury
Price for such prepayment date.
"Comparable Treasury Issue" means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term of the Debentures to be
prepaid that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the remaining
term of the Debentures.
"Comparable Treasury Price" means, with respect to any
prepayment date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
prepayment date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor re
lease) is not published or does not contain such prices on such
Business Day, (A) the average of the Reference Treasury Dealer
Quotations for such prepayment date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the
Debenture Trustee obtains fewer than three such Reference Treasury
Dealer quotations, the average of all such Quotations.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Debenture Issuer.
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"Reference Treasury Dealer" means a nationally
recognized U.S. Government securities dealer in New York City
selected by the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any prepayment date,
the average, as determined by the Debenture Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to
the Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such
repayment date.
"Tax Event" means that the Sponsor shall have received
an opinion of a nationally recognized independent tax counsel
(reasonably acceptable to the Regular Trustees) experienced in such
matters (a "Dissolution Tax Opinion") to the effect that as a result
of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority
therefor or therein, or (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of
any judicial decision or regulatory determination on or after the
date of the Prospectus Supplement), which amendment or change is
effective or which interpretation or pronouncement is announced on
or after the date of the Prospectus Supplement, there is more than
an insubstantial risk that (i) the Trust is or will be subject to
United States Federal income tax with respect to interest received
on the Debentures, (ii) interest payable by the Debenture Issuer to
the Trust on the Debentures is not or will not be deductible by the
Debenture Issuer for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties,
assessments or other governmental charges.
"Tax Event Prepayment Price" means a prepayment price
equal to the greater of (1) 100% of the principal amount thereof or
(2) the sum, as determined by a Quotation Agent, of the present
values of the remaining scheduled payments of principal and interest
(after giving effect to payment of accrued interest to the date of
prepayment on the Debentures after the prepayment date), discounted
to the prepayment date on
I-7
<PAGE>
a [semi-annual] basis at the Adjusted Treasury Rate plus basis
points if prepaid on or prior to , and basis points
if prepaid thereafter, plus, in any case, accrued and unpaid
interest to the prepayment date.
"Tax Event Redemption Price" means the redemption price
equal to the Tax Event Prepayment Price upon an optional prepayment
by the Debenture Issuer of the Debentures upon the occurrence and
continuation of a Tax Event.
If an Investment Company Event (as hereinafter defined)
shall occur and be continuing, the Sponsor shall cause the Regular
Trustees to liquidate the Trust and cause the Debentures to be
distributed to the Holders of the Securities in liquidation of the
Trust within 90 days following the occurrence of such Investment
Company Event.
"Investment Company Event" means the occurrence of a
change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act
Law"), to the effect that the Trust is or will be considered an
"investment company" which is required to be registered under the
United States Investment Company Act, as amended, which Change in
1940 Act Law becomes effective on or after the date of the
Prospectus Supplement.
After the date fixed for any distribution of Debentures:
(i) the Securities will no longer be deemed to be outstanding, (ii)
the Depositary or its nominee (or any successor Clearing Agency or
its nominee), as record Holder of Preferred Securities represented
by global certificates, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon
such distribution and (iii) any certificates representing
Securities, except for certificates representing Preferred
Securities held by the Depositary or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
Debentures having an aggregate principal preference equal to the
aggregate stated liquidation preference of such Securities, with
accrued and unpaid interest equal to accrued and unpaid
Distributions on such Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or
reissuance.
I-8
<PAGE>
(d) The Securities will not be redeemed unless all accrued and unpaid
Distributions have been paid on all Securities for all [semi-annual]
[quarterly] Distribution periods terminating on or before the date
of redemption.
(e) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are
given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given on
the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and re cords of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities, it
being under stood that, in respect of Preferred Securities
registered in the name of and held of record by the Depositary
(or any successor Clearing Agency) or any nominee, the
distribution of the proceeds of such redemption will be made
to each Clearing Agency Participant (or Person on whose behalf
such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this
paragraph 4 (which notice will be irrevocable), then (A) with
respect to Preferred Securities held in book-entry form,
I-9
<PAGE>
by 12:00 noon, New York City time, on the redemption date,
provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property
Trustee will deposit irrevocably with the Depositary (or
successor clearing agency) funds sufficient to pay the amount
payable on redemption with respect to such Preferred
Securities and will give the Depositary irrevocable
instructions and authority to pay the amount payable on
redemption to the Holders of such Preferred Securities, and
(B) with respect to Preferred Securities issued in
certificated form and Common Securities, provided that the
Debenture Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will
irrevocably deposit with the Paying Agent funds sufficient to
pay the amount payable on redemption to the Holders of such
Securities upon surrender of their certificates. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then on the date of such deposit, all
rights of Holders of such Securities so called for redemption
will cease, except the right of the Holders of such Securities
to receive the redemption price, but without interest on such
redemption price. Neither the Regular Trustees nor the Trust
shall be required to register or cause to be registered the
transfer of any Securities that have been so called for
redemption. If any date fixed for redemption of Securities is
not a Business Day, then payment of the amount payable on such
date will be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption.
If payment of the redemption price in respect of any
Securities is improperly withheld or refused and not paid
either by the Trust or by the Sponsor as guarantor pursuant to
the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue at the then applicable
rate, from the original redemption date to the date of
payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of
calculating the amount
I-10
<PAGE>
payable upon redemption (other than for purposes of
calculating any premium).
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in the case of
Preferred Securities held in book-entry form, the Depositary
and, in the case of Securities held in certificated form, the
Holders of such certificates and (B) in respect of the Common
Securities, the Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws),
the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
5. [RESERVED].
6. Voting Rights - Preferred Securities.
(a) Except as provided under paragraph 7, in the Business Trust Act and
as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
Subject to the requirements set forth in this paragraph, the Holders
of a majority in liquidation preference of the Preferred Securities,
voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the
Property Trustee, or direct the exercise of any trust or power
conferred upon the Property Trustee under the Declaration, including
the right to direct the Property Trustee, as holder of the
Debentures, to (i) exercise the remedies available under the
Indenture with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 5.13 of
the Indenture, or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due
and payable, provided, however, that, where a consent under the
Indenture would require the consent or act of the Holders of greater
than a majority of the Holders in principal amount of Debentures
affected thereby (a "Super Majority"), the Property Trustee may only
give such consent or take such action at the direction of the
Holders of at least the proportion in liquidation preference of the
Preferred Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. The
Property
I-11
<PAGE>
Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other
than with respect to directing the time, method and place of
conducting any remedy available to the Property Trustee or the
Debenture Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of
the Preferred Securities under this paragraph unless the Property
Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not fail to be classified
as a grantor trust or partnership for United States Federal income
tax purposes. If the Property Trustee fails to enforce its rights,
as holder of the Debentures, under the Indenture, any Holder of
Preferred Securities may, after a period of 30 days has elapsed from
such Holder's written request to the Property Trustee to enforce
such rights, institute a legal proceeding directly against the
Debenture Issuer, to enforce the rights of the Property Trustee, as
holder of the Debentures, under the Indenture, without first
instituting any legal proceeding against the Property Trustee or any
other Person.
Notwithstanding the foregoing, in the event the Debenture Issuer
shall fail to make any payment on the Debentures when due, holders
of the Preferred Securities shall have the right to institute a
direct action against the Debenture Issuer for payment of such
amounts. Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Preferred
Securities. Each such notice will include a statement setting forth
the following information: (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies
or consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities
or to distribute the Deben-
I-12
<PAGE>
tures in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent
and shall, for purposes of such vote or consent, be treated as if
they were not outstanding.
7. Voting Rights - Common Securities.
(a) Except as provided under paragraphs 7(b), (c) and 8, in the Business
Trust Act and as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee.
(c) Subject to Section 2.6 of the Declaration and only after the Event
of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of
the second to last sentence of this paragraph, the Holders of a
Majority in liquidation preference of the Common Securities, voting
separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the
Property Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any remedy
waivable to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures,
(ii) waive any past default and its consequences that is waivable
under Section 5.13 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the
Debentures shall be due and payable, provided that, where a consent
or action under the Indenture would require the consent or act of
the Holders of greater than a majority in principal amount of
Debentures affected thereby (a "Super Majority"), the Property
Trustee may only give such consent or take such action at the
direction of the Holders of at least the proportion in liquidation
preference of the Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the
Debentures outstanding. Pursuant to this paragraph 7(c), the
Property Trustee shall not revoke
I-13
<PAGE>
any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Property Trustee or the Debenture Trustee as set
forth above, the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has
obtained an opinion of tax counsel to the effect that, as a result
of such action the Trust will not fail to be classified as a grantor
trust or a partner ship for United States Federal income tax
purposes. If the Property Trustee fails to enforce its rights, as
holder of the Debentures, under the Indenture, any Holder of Common
Securities may, after a period of 30 days has elapsed from such
Holder's written request to the Property Trustee to enforce such
rights, institute a legal proceeding directly against the Debenture
Issuer, to enforce the Property Trustee's rights, as holder of the
Debentures, under the Indenture, without first instituting any legal
proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, in the event the Debenture Issuer
shall fail to make any payment on the Debentures when due, Holders
of the Common Securities shall have the right to institute a direct
action against the Debenture Issuer for payment of such amounts. Any
required approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of
Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be
mailed to each Holder of record of Common Securities. Each such
notice will include a statement setting forth the following
information: (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the
terms of the Securities.
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<PAGE>
8. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides
for, or the Regular Trustees otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to the
Declaration or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section 8.1 of
the Declaration, then the Holders of outstanding Securities as a
class, will be entitled to vote on such amendment or proposal (but
not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the
Holders of at least 66-2/3% in liquidation preference of the
Securities, voting together as a single class; provided, however, if
any amendment or proposal referred to in clause (i) above would
adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of 66-2/3% in liquidation
preference of such class of Securities.
(b) In the event the consent of the Property Trustee as the holder of
the Debentures is required under the Indenture with respect to any
amendment, modification or termination on the Indenture or the
Debentures, the Property Trustee shall request the direction of the
Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in
liquidation preference of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture
would require the consent of the holders of greater than a majority
in aggregate principal amount of the Debentures (a "Super
Majority"), the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in
aggregate stated liquidation preference of the Securities; provided,
further, that the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Securities
under this paragraph 8(b) unless the Property Trustee has obtained
an opinion of tax counsel to the effect that for the purposes of
United States Federal income tax the Trust will not be classified as
other than a grantor trust or partnership on account of such action.
I-15
<PAGE>
9. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation preference of the
Securities held by the relevant Holder in relation to the aggregate liquidation
preference of all Securities outstanding unless, on any distribution date or
redemption date an Event of Default under the Declaration has occurred and is
continuing, in which case no payment of any distribution on, or amount payable
upon redemption of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid distributions on
all outstanding Preferred Securities for all distribution periods terminating on
or prior thereto, or in the case of payment of the amount payable upon
redemption of the Preferred Securities, the full amount of such amount in
respect of all outstanding Preferred Securities shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied to
the payment in full in cash of all distributions on, or the amount payable upon
redemption of Preferred Securities then due and payable.
10. Ranking.
The Preferred Securities rank pari passu and payment thereon shall
be made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
I-16
<PAGE>
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
I-17
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY
A-1
<PAGE>
[FORM OF FACE OF SECURITY]
[Include if Preferred Security is in global form and the Depository
Trust Company is the U. S. Depositary -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Preferred Security is in global form -- TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Preferred Securities
[CUSIP NO. [ ]]
Preferred Securities
of
International Paper Capital Trust III
[___]% Preferred Securities
(liquidation preference $[__] per Preferred Security)
International Paper Capital Trust III, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that
________________________________________________________________________________
(the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [___]% Preferred Securities
A1-1
<PAGE>
(liquidation preference $[__] per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transfer able on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities represented hereby are issued and shall
in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of [Date], as the same may be amended
from time to time (the "Declaration"), including the designation of the terms of
the Preferred Securities as set forth in Annex I to the Declaration. Capitalized
terms used herein but not defined shall have the meaning given them in the
Declaration. The Holder is entitled to the benefits of the Preferred Securities
Guarantee to the extent provided therein. The Sponsor will provide a copy of the
Declaration, the Preferred Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Reference is hereby made to select provisions of the Preferred
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
A1-2
<PAGE>
Unless the Property Trustee's Certificate of Authentication hereon
has been properly executed, these Preferred Securities shall not be entitled to
any benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of ____________, ____.
International Paper Capital Trust III
By:
---------------------------------
Name:
Title:
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: ____________, ____
[PROPERTY TRUSTEE]
as Property Trustee
By:
---------------------------------
Authorized Signatory
A1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of [___]% (the "Coupon Rate") of the stated liquidation
preference of $[__] per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one [semi-annual period] [quarter] will bear interest
thereon compounded [semi-annually] [quarterly] at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full [semi-annual] [quarterly] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [semi-annual] [quarterly] Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [semi-annually] [quarterly] in arrears, on [______________]
of each year, commencing on [________________], to Holders of record fifteen
(15) days prior to such payment dates, which payment dates shall correspond to
the interest payment dates on the Debentures. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding
[____] consecutive [semi-annual periods] [quarters] (each an "Extension Period")
and, as a consequence of such deferral, Distributions will also be deferred.
Despite such deferral, [semi-annual] [quarterly] Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at the
Coupon Rate compounded [semi-annually] [quarterly] during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further extend such Extension Period; provided that such Extension
Period together with all such previous and further extensions thereof may not
exceed [_____] consecutive [semi-annual periods] [quarters]. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
A1-4
<PAGE>
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-5
<PAGE>
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:*___________________________________________________________
- ------------------
* (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A1-6
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY
[FORM OF FACE OF SECURITY]
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE REGISTRATION
STATEMENT.]
[OTHER THAN AS PROVIDED IN THE DECLARATION (AS DEFINED HEREIN), THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A
RELATED PARTY (AS DEFINED IN THE DECLARATION) OF INTERNATIONAL PAPER COMPANY.]
Certificate Number Number of Common Securities
Common Securities
of
International Paper Capital Trust III
____% Common Securities
(liquidation preference $[___] per Common Security)
International Paper Capital Trust III, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that
________________________________________________________________________________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ___% Common Securities (liquidation preference $[___] per Common
Security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of [Date], as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used
A2-1
<PAGE>
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Reference is hereby made to select provisions of the Common
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States Federal
income tax purposes the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
A2-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this
day of ____________, ____.
International Paper Capital Trust III
By:
---------------------------------
Name:
Title:
A2-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation preference
of $[__] per Common Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions in arrears for
more than one [semi-annual] [quarterly] period will bear interest thereon
compounded [semi-annually] [quarterly] at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full [semi-annual] [quarterly] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [semi-annual] [quarterly] Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [semi-annually] [quarterly] in arrears, on
[_________________] of each year, commencing on [________________], to Holders
of record fifteen (15) days prior to such payment dates, which payment dates
shall correspond to the interest payment dates on the Debentures. The Debenture
Issuer has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding [_______] consecutive [semi-annual] [quarterly] periods
(each an "Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, [semi-annual]
[quarterly] Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded
[semi-annually] [quarterly] during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed [______]
consecutive [semi-annual] [quarterly] periods. Payments of accrued Distributions
will be payable to Holders as they appear on the books and records of the Trust
on the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
A2-4
<PAGE>
The Common Securities shall be redeemable as provided in the
Declaration.
A2-5
<PAGE>
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _______________________
Signature:
------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:*___________________________________________________________
- ----------
** (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A2-6
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
<PAGE>
Exhibit 4.12
====================================
AMENDED AND RESTATED DECLARATION
OF TRUST
INTERNATIONAL PAPER Capital Trust IV
Dated as of [Date]
====================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.................................................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application............................. 9
SECTION 2.2 Lists of Holders of Securities............................... 10
SECTION 2.3 Reports by the Property Trustee.............................. 10
SECTION 2.4 Periodic Reports to Property Trustee......................... 10
SECTION 2.5 Evidence of Compliance with Conditions
Precedent.................................................... 11
SECTION 2.6 Events of Default; Waiver.................................... 11
SECTION 2.7 Event of Default; Notice..................................... 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name......................................................... 14
SECTION 3.2 Office....................................................... 14
SECTION 3.3 Purpose...................................................... 14
SECTION 3.4 Authority.................................................... 14
SECTION 3.5 Title to Property of the Trust............................... 15
SECTION 3.6 Powers and Duties of the Regular Trustees.................... 15
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees..................................................... 19
SECTION 3.8 Powers and Duties of the Property Trustee.................... 20
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee............................................. 22
SECTION 3.10 Certain Rights of Property Trustee........................... 24
SECTION 3.11 Delaware Trustee............................................. 27
SECTION 3.12 Execution of Documents....................................... 27
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities................................................... 27
SECTION 3.14 Duration of Trust............................................ 28
SECTION 3.15 Mergers...................................................... 28
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities...................... 30
SECTION 4.2 Responsibilities of the Sponsor.............................. 30
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees........................................... 31
<PAGE>
SECTION 5.2 Delaware Trustee............................................. 31
SECTION 5.3 Property Trustee; Eligibility................................ 32
SECTION 5.4 Qualifications of Regular Trustees and
Delaware Trustee Generally................................... 33
SECTION 5.5 Initial Trustees............................................. 33
SECTION 5.6 Appointment, Removal and Resignation of
Trustees..................................................... 34
SECTION 5.7 Vacancies among Trustees..................................... 36
SECTION 5.8 Effect of Vacancies.......................................... 36
SECTION 5.9 Meetings..................................................... 36
SECTION 5.10 Delegation of Power.......................................... 37
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions................................................ 37
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities...................... 38
SECTION 7.2 Execution and Authentication................................. 38
SECTION 7.3 [RESERVED]................................................... 39
SECTION 7.4 Registrar, Paying Agent and Conversion Agent................. 39
SECTION 7.5 Paying Agent to Hold Money in Trust.......................... 40
SECTION 7.6 [RESERVED]................................................... 40
SECTION 7.7 [RESERVED]................................................... 40
SECTION 7.8 Outstanding Preferred Securities............................. 41
SECTION 7.9 Preferred Securities in Treasury............................. 41
SECTION 7.10 [RESERVED]................................................... 41
SECTION 7.11 Cancellation................................................. 41
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust......................................... 42
ARTICLE IX
TRANSFER
SECTION 9.1 General...................................................... 43
SECTION 9.2 Transfer of Certificates..................................... 44
SECTION 9.3 Deemed Security Holders...................................... 45
SECTION 9.4 Book Entry Interests......................................... 45
SECTION 9.5 Notices to Clearing Agency................................... 46
SECTION 9.6 Appointment of Successor Clearing Agency..................... 46
SECTION 9.7 Definitive Preferred Security Certificates................... 47
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen
Certificates................................................. 48
<PAGE>
ARTICLE X
LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES,
TRUSTEES OR OTHERS
SECTION 10.1 Liability.................................................... 48
SECTION 10.2 Exculpation.................................................. 49
SECTION 10.3 Fiduciary Duty............................................... 50
SECTION 10.4 Indemnification.............................................. 51
SECTION 10.5 Outside Businesses........................................... 52
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.................................................. 52
SECTION 11.2 Certain Accounting Matters................................... 52
SECTION 11.3 Banking...................................................... 53
SECTION 11.4 Withholding.................................................. 54
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments................................................... 54
SECTION 12.2 Meetings of the Holders of Securities; Action
by Written Consent........................................... 56
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee...................................................... 59
SECTION 13.2 Representations and Warranties of Delaware
Trustee...................................................... 60
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices...................................................... 61
SECTION 15.2 Governing Law................................................ 62
SECTION 15.3 Intention of the Parties..................................... 62
SECTION 15.4 Headings..................................................... 63
SECTION 15.5 Successors and Assigns....................................... 63
SECTION 15.6 Partial Enforceability....................................... 63
SECTION 15.7 Counterparts................................................. 63
<PAGE>
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- -------------------
310........................................................... 2.1(c)
310(a)........................................................ Inapplicable
310(b)........................................................ 5.3(c),(d)
311(a)........................................................ 2.2(b)
311(b)........................................................ 2.2(b)
311(c)........................................................ Inapplicable
312(a)........................................................ Inapplicable
312(b)........................................................ 2.2(b)
313........................................................... 2.3
314........................................................... 2.4
314(a)........................................................ 3.6(j)
314(b)........................................................ Inapplicable
314(c)........................................................ 2.5
314(d)........................................................ Inapplicable
314(f)........................................................ Inapplicable
315(a)........................................................ Inapplicable
315(c)........................................................ Inapplicable
315(d)........................................................ Inapplicable
316(a)........................................................ Inapplicable
316(c)........................................................ 3.6(e)
317........................................................... 2.1(c)
317(b)........................................................ 3.8(h)
- ----------
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
INTERNATIONAL PAPER Capital Trust IV
[Date]
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration") dated and
effective as of [Date], by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Declaration, the "Trustees"), International Paper
Company, a New York corporation, as trust sponsor (the "Sponsor"), and by the
holders, from time to time, of undivided beneficial interests in the Trust
issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established a trust (the
"Trust") under the Delaware Business Trust Act pursuant to a Declaration of
Trust dated as of [Date], (the "Original Declaration") and a Certificate of
Trust filed with the Secretary of State of Delaware on [Date], for the sole
purpose of issuing and selling certain securities representing undivided
beneficial interests in the assets of the Trust and investing the proceeds
thereof in certain Debentures of the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Declaration,
amend and restate each and every term and provision of the Original Declaration;
and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust, the
Trustees declare that all assets contributed to the Trust will be held in trust
for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE>
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Declaration has the same meaning
throughout;
(c) all references to "the Declaration" or "this Declaration" are to
this Declaration as modified, supplemented or amended from time to time;
(d) all references in this Declaration to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Declaration unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Declaration unless otherwise defined in this Declaration or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Authorized Officer" of a Person means any Person that is authorized
to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Depositary as described in Section 9.4.
2
<PAGE>
"Business Day" means any day other than a day on which banking
institutions in New York, New York and in London, England are authorized or
required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code ss.3801 et seq., as it may be amended from time to time.
"Certificate" means a certificate in global or definitive form
representing a Common Security or a Preferred Security.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
"Closing Date" means [Date].
"Code" means the Internal Revenue Code of 1986 as amended.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Common Securities.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means the Sponsor in its capacity as issuer of
the Debentures.
"Debenture Trustee" means [Debenture Trustee], a [___________]
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be
3
<PAGE>
held by the Property Trustee, a specimen certificate for such series of
Debentures being Exhibit B.
"Definitive Preferred Securities" means the Preferred Securities in
definitive form issued by the Trust.
"Definitive Preferred Security Certificate" has the meaning set
forth in Section 9.4.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Distribution" means a distribution payable to Holders of Securities
in accordance with Section 6.1.
"Depositary" means The Depository Trust Company, the initial
Clearing Agency.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means (a) any Trustee; (b) any Affiliate of any
Trustee; (c) any officers, directors, shareholders, members, partners,
employees, representatives or agents of any Trustee; or (d) any employee or
agent of the Trust or its Affiliates.
"Indenture" means the Indenture dated as of [Date], between the
Debenture Issuer and [Trustee], as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Investment Company" means an investment company as defined in the
Investment Company Act.
4
<PAGE>
"Investment Company Act" means the U.S. Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation preference of the Securities" means, except
as provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of more than 50% of the aggregate liquidation preference
(including the stated amount that would be paid on redemption, liquidation or
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Ministerial Action" has the meaning set forth in the terms of the
Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer
in rendering the Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's
opinion, is necessary to enable such officer to express
an informed opinion as to whether or not such covenant
or condition has been complied with; and
5
<PAGE>
(d) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied
with.
"Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges or securities deposited with the Clearing
Agency.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Preferred Securities.
"Preferred Securities" has the meaning specified in Section 7.1(a).
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.3.
"Property Trustee Account" has the meaning set forth in Section
3.8(c).
"Prospectus Supplement", as used in Annex I hereto, means the
prospectus supplement, dated as of [Date], relating to the issuance and sale by
the Trust of Preferred Securities.
6
<PAGE>
"Purchase Agreement" shall have the meaning set forth in Section
7.3(a).
"Quorum" means a majority of the Regular Trustees or, if there are
only two Regular Trustees, both of them.
"Register" has the meaning set forth in Section 7.4.
"Regular Trustee" means any Trustee other than the Property Trustee
and the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee,
any vice-president, any assistant vice-president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any other officer in
the Corporate Trust Department of the Property 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 that officer's knowledge of
and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the
Global Preferred Security and any other Preferred Security in global form.
"66-2/3% in liquidation preference of the Securities" means, except
as provided in the terms of the Preferred Securities and by the Trust Indenture
Act, Holders of outstanding Securities voting together as a single class or, as
the context may require, Holders of Preferred Securities or Holder(s) of
outstanding Common Securities voting separately as a class, representing at
least 66-2/3%
7
<PAGE>
of the aggregate liquidation preference (including the stated amount that would
be paid on redemption, liquidation or otherwise, plus accrued and unpaid
Distributions, to the date upon which the voting percentages are determined) of
all outstanding Securities of the relevant class.
"Sponsor" means International Paper Company, a New York corporation,
or any successor entity in a merger, consolidation or amalgamation, in its
capacity as sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(c).
"Successor Property Trustee" has the meaning set forth in Section
5.6(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the Regular Trustees shall have received an
opinion of nationally recognized independent tax counsel experienced in such
matters to the effect that, as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment to or change in an
interpretation or application of such laws or regulations, there is more than an
insubstantial risk that (i) the Trust would be subject to United States federal
income tax with respect to income accrued or received on the Subordinated Debt
Securities, (ii) interest payable to the Trust on the Subordinated Debt
Securities would not be deductible by the Debenture Issuer for United States
federal income tax purposes or (iii) the Trust would be subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
"10% in liquidation preference of the Securities" means, except as
provided in the terms of the Preferred Securities or by the Trust Indenture Act,
Holders of outstanding Securities voting together as a single class or, as the
context may require, Holders of outstanding Preferred Securities or Holders of
outstanding Common Securities, voting separately as a class, representing 10% of
the aggregate liquidation preference (including the stated amount that would be
paid on redemption, liquidation or
8
<PAGE>
otherwise, plus accrued and unpaid Distributions to the date upon which the
voting percentages are determined) of all outstanding Securities of the relevant
class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration, which are
incorporated by reference in and made part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is a
Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Declaration
limits, qualifies or conflicts with the duties imposed by ss.ss. 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Declaration
shall not affect the nature of the Securities as equity securities representing
undivided beneficial interests in the assets of the Trust.
9
<PAGE>
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide the Property Trustee (i) within 14 days after each record
date for payment of Distributions, a list, in such form as the Property Trustee
may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of such record date, provided that neither the
Sponsor nor the Regular Trustees on behalf of the Trust shall be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Property Trustee by the
Sponsor and the Regular Trustees on behalf of the Trust, and (ii) at any other
time, within 30 days of receipt by the Trust of a written request for a List of
Holders as of a date no more than 14 days before such List of Holders is given
to the Property Trustee. The Property Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity) provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under
ss.ss. 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after May 15 of each year, the Property Trustee shall
provide to the Holders of the Preferred Securities such reports, if any, as are
required by ss. 313 of the Trust Indenture Act in the form and in the manner
provided by ss. 313 of the Trust Indenture Act. The Property Trustee shall also
comply with the requirements of ss. 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
(if any) as required by ss. 314 of the Trust Indenture Act and the compliance
certificate required by ss. 314 of the Trust Indenture Act in
10
<PAGE>
the form, in the manner and at the times required by ss. 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Declaration that relate to
any of the matters set forth in ss. 314(c) of the Trust Indenture Act. Any
certificate or opinion required to be given by an officer pursuant to ss.
314(c)(1) of the Trust Indenture Act may be given in the form of an Officers'
Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation preference of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, the Event of Default
under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount the holders of the Debentures (a "Super Majority") to
be waived under the Indenture, the Event of Default under the Declaration
may only be waived by the vote of the Holders of at least the proportion
in liquidation preference of the Preferred Securities that the relevant
Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Declaration, but
no such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities
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shall also be deemed to constitute a waiver by the Holders of the Common
Securities of any such Event of Default with respect to the Common Securities
for all purposes of this Declaration without any further act, vote, or consent
of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation preference of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Event of
Default under the Indenture:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event of
Default under the Declaration as provided below in this Section 2.6(b),
the Event of Default under the Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Declaration as provided below
in this Section 2.6(b), the Event of Default under the Declaration may
only be waived by the vote of the Holders of at least the proportion in
liquidation preference of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and its consequences until all Events of Default with respect to the
Preferred Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise eliminated, the
Property Trustee will be deemed to be acting solely on behalf of the Holders of
the Preferred Securities and only the Holders of the Preferred Securities will
have the right to direct the Property Trustee in accordance with the terms of
the Securities. Subject to the foregoing provisions of this Section 2.6(b), upon
such waiver, any such default shall cease to exist and any Event of Default with
respect to the Common Securities arising therefrom shall be deemed to have been
cured for every purpose of this Declaration, but no
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such waiver shall extend to any subsequent or other default or Event of Default
with respect to the Common Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture by the
Property Trustee at the direction of the Holders of the Preferred Securities,
constitutes a waiver of the corresponding Event of Default under this
Declaration.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence
of an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities known to the Property Trustee, unless such defaults have been cured
before the giving of such notice (the term "defaults" for the purposes of this
Section 2.7(a) being hereby defined to be an Event of Default as defined in the
Indenture, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee, or a trust committee of directors and/or Responsible
Officers of the Property Trustee in good faith determines that the withholding
of such notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of
any default except:
(i) a default under Sections 501(1) and 501(2) of the
Indenture; or
(ii) any default as to which the Property Trustee shall have
received written notice.
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ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "International Paper Capital Trust IV," as such
name may be modified from time to time by the Regular Trustees following written
notice to the Holders of Securities. The Trust's activities may be conducted
under the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o
International Paper Company, Two Manhattanville Road, Purchase, New York 10577,
Attention: John R. Jepsen. On ten Business Days written notice to the Holders of
Securities, the Regular Trustees may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue
and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary, or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no person shall be required to inquire into the authority of the Trustees
to bind the
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Trust. Persons dealing with the Trust are entitled to rely conclusively on the
power and authority of the Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Trustee Account or as otherwise provided in this Declaration, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the Common
Securities in accordance with this Declaration; provided, however, that the
Trust may issue no more than one series of Preferred Securities and no more than
one series of Common Securities, and, provided further, that there shall be no
interests in the Trust other than the Securities, and the issuance of Securities
shall be limited to a one-time, simultaneous issuance of both Preferred
Securities and Common Securities on the Closing Date;
(b) in connection with the issue and sale of the Preferred
Securities, at the direction of the Sponsor, to:
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement filed on Form S-3
prepared by the Sponsor, including any amendments thereto in relation to
the Preferred Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any State
or foreign jurisdiction in which the Sponsor has determined to qualify or
register such Preferred Securities for sale;
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(iii) execute and file an application, prepared by or on
behalf of the Sponsor, at such time as determined by the Sponsor, to the
New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing or quotation of the Preferred Securities;
(iv) to execute and deliver letters, documents, or instruments
with The Depository Trust Company relating the Preferred Securities;
(v) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A, including
any amendments thereto, prepared by the Sponsor relating to the
registration of the Preferred Securities under Section 12(b) of the
Exchange Act; and
(vi) execute and enter into the Purchase Agreement,
Registration Rights Agreement and other related agreements providing for
the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders or Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written
notice of the occurrence of a Tax Event; provided that the Regular Trustees
shall consult with the Sponsor and the Property Trustee before taking or
refraining from taking any Ministerial Action in relation to a Tax Event;
(e) to establish a record date with respect to all actions to be
taken hereunder that require a record date be established, including and with
respect to, for the purposes of ss. 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
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(f) to take all actions and perform such duties as may be required
of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort
to legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's obligations under
the Trust Indenture Act;
(j) to give the certificate required by ss. 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out
any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities
of any notice received from the Debenture Issuer of its election (i) to defer
payments of interest on the Debentures by extending the interest payment period
under the Indenture or (ii) to extend the scheduled maturity date on the
Debentures;
(n) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing;
(o) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of
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the Holders of the Preferred Securities or to enable the Trust to effect the
purposes for which the Trust was created;
(p) to take any action, not inconsistent with this Declaration or
with applicable law, that the Regular Trustees determine in their discretion to
be necessary or desirable in carrying out the activities of the Trust as set out
in this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes,
provided that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust.
The Regular Trustees must exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall not take any
action that is inconsistent with the purposes and functions of the Trust set
forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
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SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the Property
Trustee) shall not, engage in any activity other than as required or authorized
by this Declaration. In particular, the Trust shall not and the Trustees
(including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Declaration and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever;
(vi) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities; or
(vii) (A) direct the time, method and place of exercising any
trust or power conferred upon the Debenture Trustee with respect to the
Debentures, (B) waive any past default that is waivable under Section 513
of the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination of
the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an insubstantial risk that
for United States Federal income tax purposes the Trust will not be
classified as a grantor trust or partnership.
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SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee in trust for the benefit of the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 5.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Trustee Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in respect
of the Debentures held by the Property Trustee, deposit such funds into
the Property Trustee Account and make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Property Trustee Account in accordance with Section 6.1. Funds in the
Property Trustee Account shall be held uninvested until disbursed in
accordance with this Declaration;
(ii) engage in such ministerial activities as so directed and
as shall be necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as so directed as shall be necessary or appropriate
to effect the distribution of the Debentures to Holders of Securities upon
the occurrence of certain special events (as may be defined in the terms
of the
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Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to the terms of
the Securities.
(d) The Property Trustee shall take all actions and perform such
duties as may be specifically required of the Property Trustee pursuant to the
terms of the Securities.
(e) The Property Trustee shall take any Legal Action which arises
out of or in connection with an Event of Default or the Property Trustee's
duties and obligations under this Declaration or the Trust Indenture Act.
(f) The Property Trustee shall not resign as a Trustee unless
either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation distributed to the Holders of Securities pursuant to
the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 5.6.
(g) The Property Trustee shall have the legal power to exercise all
of the rights, powers and privileges of a holder of Debentures under the
Indenture and, if an Event of Default occurs and is continuing, the Property
Trustee shall, for the benefit of Holders of the Securities, enforce its rights
as holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Property Trustee will act as Paying Agent and Registrar in
New York (the "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with ss. 317(b) of the Trust Indenture Act.
Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have
none of the duties, liabilities, powers
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or the authority of the Regular Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall not take any
action that is inconsistent with the purposes and functions of the Trust set out
in Section 3.3.
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of
Default and after the curing of all Events of Default that may have occurred,
shall undertake to perform only such duties as are specifically set forth in
this Declaration and no implied covenants shall be read into this Declaration
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this Declaration, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Declaration shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property Trustee
shall be determined solely by the express provisions of this
Declaration and the Property Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Declaration, and no implied
covenants or obligations shall be read into this Declaration
against the Property Trustee; and
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(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of any such
certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Declaration;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was negligent
in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of not less than a Majority in
liquidation preference of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Declaration;
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in
the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration or adequate
indemnity against such risk or liability is not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and the
Property Trustee Account shall be to deal with such property in a
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similar manner as the Property Trustee deals with similar property for its
own account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and the Trust
Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments levied thereon or in
connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree with
the Sponsor. Money held by the Property Trustee need not be segregated
from other funds held by it except in relation to the Property Trustee
Account maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Declaration, nor shall the Property
Trustee be liable for the default or misconduct of the Regular Trustees or
the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may rely and shall be fully protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Declaration shall be sufficiently evidenced
by an Officers' Certificate;
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(iii) whenever in the administration of this Declaration, the
Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder, the
Property Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, request and rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or securities
laws) or any rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with respect
to legal matters or advice within the scope of such experts' area of
expertise 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 accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may include any of
its employees. The Property Trustee shall have the right at any time to
seek instructions concerning the administration of this Declaration from
any court of competent jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration at
the request or direction of any Holder, unless such Holder shall have
provided to the Property Trustee adequate security and indemnity, which
would satisfy a reasonable person in the position of the Property Trustee,
against the costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request or
direction, including such reasonable advances as may be requested by the
Property Trustee provided, that, nothing contained in this Section
3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Declaration;
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(vii) the Property 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, security, bond, debenture, note, other evidence
of indebtedness or other paper or document, but the Property Trustee, in
its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit;
(viii) the Property 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 Property 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;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and the
signature of the Property Trustee or its agents alone shall be sufficient
and effective to perform any such action and no third party shall be
required to inquire as to the authority of the Property Trustee to so act
or as to its compliance with any of the terms and provisions of this
Declaration, both of which shall be conclusively evidenced by the Property
Trustee's or its agent's taking such action;
(x) whenever in the administration of this Declaration the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation preference of the Securities
as would be entitled to direct the Property Trustee under the terms of the
Securities in respect of such remedy, right or action, (ii) may refrain
from enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions; and
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(xi) except as otherwise expressly provided by this
Declaration, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Declaration.
(b) No provision of this Declaration shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other than
Section 5.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Declaration.
Except as set forth in Section 5.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of ss. 3807 of the
Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and except as
otherwise required by the Business Trust Act, any Regular Trustee is authorized
to execute on behalf of the Trust any documents that the Regular Trustees have
the power and authority to execute pursuant to Section 3.6; provided that, the
registration statement referred to in Section 3.6(b)(i), including any
amendments thereto, shall be signed by all of the Regular Trustees.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the
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value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of Article
VIII hereof, shall exist until forty (40) years from the date of its formation.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into,
or be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any corporation or other entity or person,
except as described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of a majority of the Regular
Trustees and without the consent of the Holders of the Securities, the Delaware
Trustee or the Property Trustee, consolidate, amalgamate, merge with or into, or
be replaced by a trust organized as such under the laws of any State or the
District of Columbia; provided that:
(i) if the Trust is not the surviving entity, the successor
entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Preferred
Securities (the "Successor Securities") as long as the
Successor Securities rank, with respect to participation in
the profits and distributions or in the assets of the
Successor Entity at least as high as the Preferred Securities
rank with respect to participation in the profits and
dividends or in the assets of the Trust;
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(ii) the Debenture Issuer expressly acknowledges such
Successor Entity as the Holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are
listed, or any Successor Securities will be listed upon notification of
issuance, on any national securities exchange or with any other
organization on which the Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation or replacement
does not cause the Preferred Securities (including any Successor
Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation or replacement
does not adversely affect the powers, preferences and other special rights
of the Holders of the Preferred Securities (including any Successor
Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially
identical to that of the Trust;
(vii) prior to such merger, consolidation, amalgamation or
replacement, the Sponsor has received an opinion of a nationally
recognized independent counsel (reasonably acceptable to the Property
Trustee) to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a grantor
trust for United States Federal income tax purposes;
(B) following such merger, consolidation, amalgamation
or replacement, neither the Sponsor nor the Successor Entity will be
required to register as an Investment Company; and
(C) such merger, consolidation, amalgamation or
replacement will not adversely affect the limited liability of the
Holders of the
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Securities (including any Successor Securities); and
(viii) the Sponsor provides a guarantee to the Holders of the
Successor Securities with respect to the Successor Entity having
substantially the same terms as the Preferred Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except
with the consent of Holders of 100% in liquidation preference of the Common
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States Federal income tax purposes.
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
On the Closing Date the Sponsor will purchase all the Common
Securities issued by the Trust, in an aggregate liquidation preference equal to
3% of the total capital of the Trust, at the same time as the Preferred
Securities are sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities,
the Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission the
registration statement on Form S-3, including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to
take appropriate action to qualify or register for sale all or part of the
Preferred Securities and to do any and all such acts, other than actions which
must be taken by the Trust, and advise the Trust of actions
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it must take, and prepare for execution and filing any documents to be executed
and filed by the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to PORTAL and
to the New York Stock Exchange or any other national stock exchange or the
Nasdaq National Market for listing or quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of the Purchase Agreement, Registration
Rights Agreement and other related agreements providing for the sale of the
Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees shall initially be five (5), and:
(a) at any time before the issuance of any Securities, the Sponsor
may, by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities the number of Trustees may
be increased or decreased by vote of the Holders of a Majority in liquidation
preference of the Common Securities voting as a class at a meeting of the
Holders of the Common Securities; provided that, if the Property Trustee does
not also act as Delaware Trustee, the number of Trustees shall be at least five
(5).
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the "Delaware
Trustee") shall be an entity which has its
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principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law; provided that, if the Property Trustee has its
principal place of business in the State of Delaware and otherwise meets the
requirements of applicable law, then the Property Trustee shall also be the
Delaware Trustee and Section 3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall act as
Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers, having
a combined capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority. If such corporation
publishes reports of condition at least annually, pursuant to law or to
the requirements of the supervising or examining authority referred to
above, then for the purposes of this Section 5.3(a)(ii), the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be eligible
to so act under Section 5.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 5.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of ss. 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in ss. 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of ss. 310(b) of the Trust Indenture Act.
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(d) The Preferred Securities Guarantee shall be deemed to be
specifically described in this Declaration for purposes of clause (i) of the
first provision contained in ss. 310(b) of the Trust Indenture Act.
SECTION 5.4 Qualifications of Regular Trustees and Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 5.5 Initial Trustees.
The initial Regular Trustees shall be:
[_____________________]
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
[_____________________]
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
[_____________________]
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
The initial Delaware Trustee shall be:
[Delaware Trustee]
[address]
Attention: [Corporate Trust Trustee
Administration]
The initial Property Trustee shall be:
[Property Trustee]
[address]
Attention: [Corporate Trust Trustee
Administration]
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SECTION 5.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities by vote of the
Holders of a Majority in liquidation preference of the Common Securities
voting as a class at a meeting of the Holders of the Common Securities.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 5.6(a) until a successor Property Trustee (the
"Successor Property Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Property Trustee
and delivered to the Regular Trustees and the Sponsor; and
(c) The Trustee that acts as Delaware Trustee shall not be removed
in accordance with this Section 5.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 5.2 and 5.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his
successor shall have been appointed or until his death, removal or resignation.
Any Trustee may resign from office (without need for prior or subsequent
accounting) by an instrument in writing signed by the Trustee and delivered to
the Sponsor and the Trust, which resignation shall take effect upon such
delivery or upon such later date as is specified therein; provided, however,
that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such
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Successor Property Trustee and delivered to the Trust, the
Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the holders
of the Securities;
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee has
been appointed and has accepted such appointment by instrument executed by
such Successor Delaware Trustee and delivered to the Trust, the Sponsor
and the resigning Delaware Trustee; and
(iii) no such resignation of a Special Regular Trustee shall
be effective until the 60th day following delivery of the instrument of
resignation of the Special Regular Trustee to the Sponsor and the Trust or
such later date specified in such instrument during which period the
Holders of the Preferred Securities shall have the right to appoint a
successor Special Regular Trustee as provided in this Section 5.6; and
(e) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be, if the Property Trustee or the Delaware Trustee
delivers an instrument of resignation in accordance with this Section 5.6.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
5.6 within 60 days after delivery to the Sponsor and the Trust of an instrument
of resignation, the resigning Property Trustee or Delaware Trustee, as
applicable, may petition any court of competent jurisdiction for appointment of
a Successor Property Trustee or Successor Delaware Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
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SECTION 5.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 5.1, or if the number of Trustees is
increased pursuant to Section 5.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 5.6.
SECTION 5.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy in the number
of Regular Trustees shall occur, until such vacancy is filled by the appointment
of a Regular Trustee in accordance with Section 5.6, the Regular Trustees in
office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
SECTION 5.9 Meetings.
Meetings of the Regular Trustees shall be held from time to time
upon the call of any Regular Trustee. Regular meetings of the Regular Trustees
may be held at a time and place fixed by resolution of the Regular Trustees.
Notice of any in-person meetings of the Regular Trustees shall be hand delivered
or otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting
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has not been lawfully called or convened. Unless provided otherwise in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting by the unanimous written consent of the
Regular Trustees.
SECTION 5.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to
time to such of their number or to officers of the Trust the doing of such
things and the execution of such instruments either in the name of the Trust or
the names of the Regular Trustees or otherwise as the Regular Trustees may deem
expedient, to the extent such delegation is not prohibited by applicable law or
contrary to the provisions of the Trust, as set forth herein.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Debenture Issuer makes a payment of
interest (including Compounded Interest (as defined in the Indenture) and
Additional Interest (as defined in the Indenture)) premium and principal on the
Debentures held by the Property Trustee (the amount of any such payment being a
"Payment Amount"), the Property Trustee shall and is directed, to the extent
funds are available for that purpose, to make a distribution (a "Distribution")
of the Payment Amount to Holders.
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ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one
class of preferred securities, representing undivided beneficial interests in
the assets of the Trust (the "Preferred Securities"), having such terms (the
"Terms") as are set forth in Annex I and one class of common securities,
representing undivided beneficial interests in the assets of the Trust (the
"Common Securities"), having such terms as are set forth in Annex I. The Trust
shall have no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities. The Trust shall issue
no Securities in bearer form.
(b) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(c) Upon issuance of the Securities as provided in this Declaration,
the Securities so issued shall be deemed to be validly issued, fully paid and
non-assessable, subject to Section 10.1 with respect to the Common Securities.
(d) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Declaration,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Declaration.
SECTION 7.2 Execution and Authentication.
(a) The Securities shall be signed on behalf of the Trust by one
Regular Trustee. In case any Regular Trustee of the Trust who shall have signed
any of the Securities shall cease to be such Regular Trustee before the
Securities so signed shall be delivered by the Trust, such Securities
nevertheless may be delivered as though the person who signed such Securities
had not ceased to be such Regular Trustee; and any Securities may be signed on
behalf of the Trust by such persons who, at the actual date of
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execution of such Security, shall be the Regular Trustees of the Trust, although
at the date of the execution and delivery of the Declaration any such person was
not such a Regular Trustee.
(b) One Regular Trustee shall sign the Preferred Securities for the
Trust by manual or facsimile signature. Unless otherwise determined by the
Trust, such signature shall, in the case of Common Securities, be a manual
signature.
A Preferred Security shall not be valid until authenticated by the
manual signature of an authorized officer of the Property Trustee. The signature
shall be conclusive evidence that the Preferred Security has been authenticated
under this Declaration.
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Preferred Securities for original issue
in accordance with paragraph 5 of the Securities. The aggregate number of
Preferred Securities outstanding at any time shall not exceed the number set
forth in the Terms in Annex A hereto except as provided in Section 7.7.
The Property Trustee may appoint an authenticating agent acceptable
to the Trust to authenticate Preferred Securities. An authenticating agent may
authenticate Preferred Securities whenever the Property Trustee may do so. Each
reference in this Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the same rights as the
Property Trustee to deal with the Sponsor or an Affiliate.
SECTION 7.3 [RESERVED].
SECTION 7.4 Registrar, Paying Agent and Conversion Agent.
In the event that the Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, (i) an office or agency where Preferred Securities may
be presented for registration of transfer or exchange ("Registrar"), (ii) an
office or agency where Preferred Securities may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Preferred
Securities and of their transfer and exchange. The Trust
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may appoint the Registrar, the Paying Agent and the Conversion Agent and may
appoint one or more co-registrars, one or more additional paying agents and one
or more additional conversion agents in such other locations as it shall
determine. The term "Paying Agent" includes any additional paying agent. The
Trust may change any Paying Agent, Registrar or co-registrar without prior
notice to any Holder. The Trust shall notify the property Trustee of the name
and address of any Agent not a party to this Declaration. If the Trust fails to
appoint or maintain another entity as Registrar or Paying Agent, the Property
Trustee shall act as such. The Trust or any of its Affiliates may act as Paying
Agent or Registrar. The Trust shall act as Paying Agent, Registrar or
co-registrar for the Common Securities.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent for the Preferred Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of principal or distribution on the Securities, and will notify
the Property Trustee if there are insufficient funds. While any such
insufficiency continues, the Property Trustee may require a Paying Agent to pay
all money held by it to the Property Trustee. The Trust at any time may require
a Paying Agent to pay all money held by it to the Property Trustee and to
account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the money. If the Trust or the Sponsor or an
Affiliate of the Trust or the Sponsor acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the Holders all money held
by it as Paying Agent.
SECTION 7.6 [RESERVED].
SECTION 7.7 [RESERVED].
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SECTION 7.8 Outstanding Preferred Securities.
The Preferred Securities outstanding at any time are all the
Preferred Securities authenticated by the Property Trustee except for those
canceled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Preferred Security is replaced, paid or purchased pursuant to
Section 7.7 hereof, it ceases to be outstanding unless the Property Trustee
receives proof satisfactory to it that the replaced, paid or purchased Preferred
Security is held by a bona fide purchaser.
If Preferred Securities are considered paid in accordance with the
terms of this Declaration, they cease to be outstanding and interest on them
ceases to accrue.
A Preferred Security does not cease to be outstanding because one of
the Trust, the Sponsor or an Affiliate of the Sponsor holds the Security.
SECTION 7.9 Preferred Securities in Treasury.
In determining whether the Holders of the required amount of
Securities have concurred in any direction, waiver or consent, Preferred
Securities owned by the Trust, the Sponsor or an Affiliate of the Sponsor, as
the case may be, shall be disregarded and deemed not to be outstanding, except
that for the purposes of determining whether the Property Trustee shall be
protected in relying on any such direction, waiver or consent, only Securities
which the Property Trustee knows are so owned shall be so disregarded.
SECTION 7.10 [RESERVED].
SECTION 7.11 Cancellation.
The Trust at any time may deliver Preferred Securities to the
Property Trustee for cancellation. The Registrar, Paying Agent and Conversion
Agent shall forward to the Property Trustee any Preferred Securities surrendered
to them for registration of transfer, redemption, conversion, exchange or
payment. The Property Trustee shall promptly cancel all Preferred Securities,
surrendered for registration of transfer, redemption, conversion, exchange,
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payment, replacement or cancellation and shall dispose of cancelled Preferred
Securities as the Trust directs. The Trust may not issue new Preferred
Securities to replace Preferred Securities that it has paid or that have been
delivered to the Property Trustee for cancellation or that any holder has
converted.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Trust shall terminate upon the earliest to occur of the
following:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
(ii) the filing of a certificate of dissolution or its
equivalent with respect to the Holder of the Common Securities or the
Sponsor; the filing of a certificate of cancellation with respect to the
Trust or the revocation of the charter of the Holder of the Common
Securities or the Sponsor and the expiration of 90 days after the date of
revocation without a reinstatement thereof;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust;
(iv) all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders in accordance with the terms of the Securities;
(v) the occurrence and continuation of a Tax Event pursuant to
which the Trust shall have been dissolved in accordance with the terms of
the Securities and all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all of the
Securities; or
(vi) the expiration of the term of the Trust on forty (40)
years from the date of its formation.
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(b) As soon as is practicable after the occurrence of an event
referred to in Section 8.1(a), the Trustees shall file a certificate of
cancellation with the Secretary of State of the State of Delaware.
(c) The provisions of Section 3.9 and Article X shall survive the
termination of the Trust.
ARTICLE IX
TRANSFER AND EXCHANGE
SECTION 9.1 General.
(a) Where Preferred Securities are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal number of Preferred Securities represented by different certificates, the
Registrar shall register the transfer or make the exchange if its requirements
for such transactions are met. To permit registrations of transfers and
exchanges, the Trust shall issue and the Property Trustee shall authenticate
Preferred Securities at the Registrar's request.
(b) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. Any transfer or purported transfer of any Security
not made in accordance with this Declaration shall be null and void.
Subject to this Article IX, the Sponsor and any Related Party may
only transfer Common Securities to the Sponsor or a Related Party of the
Sponsor; provided that, any such transfer is subject to the condition precedent
that the transferor obtain the written opinion of nationally recognized
independent counsel experienced in such matters that such transfer would not
cause more than an insubstantial risk that:
(i) the Trust would not be classified for United States
federal income tax purposes as a grantor trust; and
(ii) the Trust would be an Investment Company or the
transferee would become an Investment Company.
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(c) The Regular Trustees shall provide for the registration of
Securities and of transfers of Securities, which will be effected without charge
but only upon payment (with such indemnity as the Regular Trustees may require)
in respect of any tax or other governmental charges that may be imposed in
relation to it. Upon surrender for registration of transfer of any Securities,
the Regular Trustees shall cause one or more new Securities to be issued in the
name of the designated transferee or transferees. Every Security surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Regular Trustees duly executed by the
Holder or such Holder's attorney duly authorized in writing. Each Security
surrendered for registration of transfer shall be canceled by the Regular
Trustees. A transferee of a Security shall be entitled to the rights and subject
to the obligations of a Holder hereunder upon the receipt by such transferee of
a Security. By acceptance of a Security, each transferee shall be deemed to have
agreed to be bound by this Declaration.
(d) The Trust shall not be required (i) to issue, register the
transfer of, or exchange, Preferred Securities during a period beginning at the
opening of business 15 days before the day of any selection of Preferred
Securities for redemption set forth in the terms and ending at the close of
business on the day of selection, or (ii) to register the transfer or exchange
of any Preferred Security so selected for redemption in whole or in part, except
the unredeemed portion of any Preferred Security being redeemed in part.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to be
issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees duly
executed by the Holder or such
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Holder's attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be cancelled by the Regular Trustees. A
transferee of a Certificate shall be entitled to the rights and subject to the
obligations of a Holder hereunder upon the receipt by such transferee of a
Certificate. By acceptance of a Certificate, each transferee shall be deemed to
have agreed to be bound by this Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust, the Property
Trustee, the Registrar or an co-registrar shall have actual or other notice
thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred Securities,
the Preferred Securities Certificates, on original issuance, will be issued in
the form of one or more, fully registered, global Preferred Security
Certificates (each a "Global Certificate"), to be delivered to the Depositary,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the Trust
in the name of Cede & Co., the nominee of the Depositary, and no Preferred
Security Beneficial Owner will receive a Definitive Preferred Security
Certificate representing such Preferred Security Beneficial Owner's interests in
such Global Certificates, except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full force and
effect;
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(b) the Trust and the Trustees shall be entitled to deal with the
Depositary for all purposes of this Declaration (including the payment of
Distributions on the relevant Global Certificates and receiving approvals, votes
or consents hereunder) as the Holder of the Preferred Securities and the sole
holder of the Global Certificates and shall have no obligation to the Preferred
Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4 conflict
with any other provisions of this Declaration, the provisions of this Section
9.4 shall control; and
(d) the rights of the Preferred Security Beneficial Owners shall be
exercised only through the Depositary and shall be limited to those established
by law and agreements between such Preferred Security Beneficial Owners and the
Depositary and/or the Participants and receive and transmit payments of
Distributions on the Global Certificates to such Participants. The Depositary
will make book entry transfers among the Participants.
SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred Security
Holders is required under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7, the Regular Trustees shall give all
such notices and communications specified herein to be given to the Preferred
Security Holders to the Depositary, and shall have no notice obligations to the
Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to such Preferred Securities.
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SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency notifies the Sponsor and the Trust that it
elects to discontinue its services as securities depositary with respect
to the Preferred Securities or if at any time such Clearing Agency ceases
to be a "clearing agency" registered under the Exchange Act and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with the Sponsor
and the Trust to terminate the book entry system through the Clearing
Agency with respect to the Preferred Securities; or
(c) an Event of Default has occurred and is continuing,
then:
(d) Definitive Preferred Security Certificates shall be prepared by
the Regular Trustees on behalf of the Trust with respect to such Preferred
Securities; and
(e) Upon surrender of the Global Certificates by the Clearing
Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions
of the Clearing Agency. Neither the Trustees nor the Trust shall be liable
for any delay in delivery of such instructions and each of them may
conclusively rely on and shall be protected in relying on, said
instructions of the Clearing Agency. The Definitive Preferred Security
Certificates shall be printed, lithographed or engraved or may be produced
in any other manner as is reasonably acceptable to the Regular Trustees,
as evidenced by their execution thereof, and may have such letters,
numbers or other marks of identification or designation and such legends
or endorsements as the Regular Trustees may deem appropriate, or as may be
required to comply with any law or with any rule or regulation made
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pursuant thereto or with any rule or regulation of any stock exchange on
which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security
or indemnity as may be required by them to keep each of them harmless,
then, in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, any Regular Trustee on behalf of the Trust shall execute
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Certificate, a new Certificate of like denomination. In connection
with the issuance of any new Certificate under this Section 9.8, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 9.8 shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration, the Preferred
Securities Guarantee, the Common Securities Guarantee and the terms of the
Securities the Sponsor shall not be:
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(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) be required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) The Holder of the Common Securities shall be liable for all of
the debts and obligations of the Trust (other than with respect to the
Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act, the Holders
of the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of the
authority conferred on such Indemnified Person by this Declaration or by law,
except that an Indemnified Person shall be liable for any such loss, damage or
claim incurred by reason of such Indemnified Person's gross negligence (or, in
the case of the Property Trustee, negligence) or willful misconduct with respect
to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities, profits,
losses, or any other facts
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pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person
has duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Declaration shall not be liable to the Trust or to any other Covered Person for
its good faith reliance on the provisions of this Declaration. The provisions of
this Declaration, to the extent that they restrict the duties and liabilities of
an Indemnified Person otherwise existing at law or in equity (other than the
duties imposed on the Property Trustee under the Trust Indenture Act), are
agreed by the parties hereto to replace such other duties and liabilities of
such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and any Covered Person; or
(ii) whenever this Declaration or any other agreement
contemplated herein or therein provides that an Indemnified Person shall
act in a manner that is, or provides terms that are, fair and reasonable
to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Declaration or any other agreement
contemplated herein or of any duty or obligation of the Indemnified Person at
law or in equity or otherwise.
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(c) Whenever in this Declaration an Indemnified Person is permitted
or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no duty
or obligation to give any consideration to any interest of or factors
affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall not
be subject to any other or different standard imposed by this Declaration
or by applicable law.
SECTION 10.4 Indemnification.
(a) To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless each Indemnified Person from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason of the creation,
operation or termination of the Trust or any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration, except that
no Indemnified Person shall be entitled to be indemnified in respect of any
loss, damage or claim incurred by such Indemnified Person by reason of gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Sponsor prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Sponsor of an undertaking
by or on behalf of the Indemnified Person to repay such amount if it shall be
determined that the Indemnified Person is not entitled to be indemnified as
authorized in Section 10.4(a). The
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indemnification shall survive the termination of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, the Delaware Trustee and the
Property Trustee may engage in or possess an interest in other business ventures
of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom and the pursuit
of any such venture, even if competitive with the business of the Trust, shall
not be deemed wrongful or improper. No Covered Person, the Sponsor, the Delaware
Trustee, or the Property Trustee shall be obligated to present any particular
investment or other opportunity to the Trust even if such opportunity is of a
character that, if presented to the Trust, could be taken by the Trust, and any
Covered Person, the Sponsor, the Delaware Trustee and the Property Trustee shall
have the right to take for its own account (individually or as a partner or
fiduciary) or to recommend to others any such particular investment or other
opportunity. Any Covered Person, the Delaware Trustee and the Property Trustee
may engage or be interested in any financial or other transaction with the
Sponsor or any Affiliate of the Sponsor, or may act as depositary for, trustee
or agent for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or its Affiliates.
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents,
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which shall reflect in reasonable detail, each transaction of the Trust. The
books of account shall be maintained on the accrual method of accounting, in
accordance with generally accepted accounting principles, consistently applied.
The Trust shall use the accrual method of accounting for United States federal
income tax purposes. The books of account and the records of the Trust shall be
examined by and reported upon as of the end of each Fiscal Year by a firm of
independent certified public accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and
delivered to each of the Holders of Securities, any annual United States federal
income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the Code
to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed
with the appropriate taxing authority, an annual United States federal income
tax return, on a Form 1041 or such other form required by United States federal
income tax law, and any other annual income tax returns required to be filed by
the Regular Trustees on behalf of the Trust with any state or local taxing
authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name and
for the sole benefit of the Trust; provided, however, that all payments of funds
in respect of the Debentures held by the Property Trustee shall be made directly
to the Property Trustee Account and no other funds of the Trust shall be
deposited in the Property Trustee Account. The sole signatories for such
accounts shall be designated by the Regular Trustees; provided, however, that
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the Property Trustee shall designate the signatories for the Property Trustee
Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustee shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may only be amended by a
written instrument approved and executed by:
(i) the Regular Trustees (or, if there are more than two
Regular Trustees a majority of the Regular Trustees);
(ii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the Property Trustee;
and
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(iii) if the amendment affects the rights, powers, duties,
obligations or immunities of the Delaware Trustee, the Delaware Trustee;
(b) no amendment shall be made, and any such purported amendment
shall be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate from
each of the Trust and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust and
the Sponsor that such amendment is permitted by, and conforms to,
the terms of this Declaration (including the terms of the
Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Declaration (including the terms of
the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be classified
for purposes of United States federal income taxation as a grantor
trust;
(B) reduce or otherwise adversely affect the powers of
the Property Trustee in contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
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(c) at such time after the Trust has issued any Securities that
remain outstanding, any amendment that would adversely affect the rights,
privileges or preferences of any Holder of Securities may be effected only with
such additional requirements as may be set forth in the terms of such
Securities;
(d) Section 9.1(c) and this Section 12.1 shall not be amended
without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the
Holders of a Majority in liquidation preference of the Common Securities and;
(f) the rights of the holders of the Common Securities under Article
V to increase or decrease the number of, and appoint and remove Trustees shall
not be amended without the consent of the Holders of a Majority in liquidation
preference of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may be amended
without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Declaration
that may be defective or inconsistent with any other provision of this
Declaration;
(iii) add to the covenants, restrictions or obligations of the
Sponsor; and
(iv) conform to any change in Rule 3a-5 or written change in
interpretation or application of Rule 3a-5 by any legislative body, court,
government agency or regulatory authority which amendment does not have a
material adverse effect on the rights, preferences or privileges of the
Holders.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called
at any time by the Regular Trustees (or as provided in the terms of the
Securities) to consider
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and act on any matter on which Holders of such class of Securities are entitled
to act under the terms of this Declaration, the terms of the Securities or the
rules of any stock exchange on which the Preferred Securities are listed or
admitted for trading. The Regular Trustees shall call a meeting of the Holders
of such class if directed to do so by the Holders of at least 10% in liquidation
preference of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more requests in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in writing the Certificates held
by the Holders of Securities exercising the right to call a meeting and only
those Securities represented by the Certificates so specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days and
not more than 60 days before the date of such meeting. Whenever a vote,
consent or approval of the Holders of Securities is permitted or required
under this Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the Holders of
Securities. Any action that may be taken at a meeting of the Holders of
Securities may be taken without a meeting if a consent in writing setting
forth the action so taken is signed by the Holders of Securities owning
not less than the minimum aggregate liquidation preference of Securities
that would be necessary to authorize or take such action at a meeting at
which all Holders of Securities having a right to vote thereon were
present and voting. Prompt notice of the taking of action without a
meeting shall be given to the Holders of Securities entitled to vote who
have not consented in writing. The Regular Trustees may specify that any
written ballot submitted to the Security Holders for the purpose of taking
any action
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without a meeting shall be returned to the Trust within the time specified
by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is entitled
to participate, including waiving notice of any meeting, or voting or
participating at a meeting. No proxy shall be valid after the expiration
of 11 months from the date thereof unless otherwise provided in the proxy.
Every proxy shall be revocable at the pleasure of the Holder of Securities
executing it. Except as otherwise provided herein, all matters relating to
the giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and judicial
interpretations thereunder, as if the Trust were a Delaware corporation
and the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the Regular
Trustees may designate; and
(iv) unless the Business Trust Act, this Declaration, the
terms of the Securities, the Trust Indenture Act or the listing rules of
any stock exchange on which the Preferred Securities are then listed or
trading, provide otherwise, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any Holders of
Securities, waiver of any such notice, action by consent without a
meeting, the establishment of a record date, quorum requirements, voting
in person or by proxy or any other matter with respect to the exercise of
any such right to vote.
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ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the time of Closing, and each Successor Property Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Property Trustee that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(b) The execution, delivery and performance by the Property Trustee
of the Declaration has been duly authorized by all necessary corporate action on
the part of the Property Trustee. The Declaration has been duly executed and
delivered by the Property Trustee, and constitutes a legal, valid and binding
obligation of the Property Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Property Trustee.
(d) At the Closing Date, the Property Trustee will have valid
ownership interest in the Debentures for the benefit of the holders of the
Securities in each case free from liens, encumbrances and defects.
(e) No consent, approval or authorization of, or registration with
or notice to, any State or Federal banking
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authority is required for the execution, delivery or performance by the Property
Trustee, of the Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Declaration and at
the time of Closing, and each Successor Delaware Trustee represents and warrants
to the Trust and the Sponsor at the time of the Successor Property Trustee's
acceptance of its appointment as Delaware Trustee that:
(a) The Delaware Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Declaration.
(b) The execution, delivery and performance by the Delaware Trustee
of the Declaration has been duly authorized by all necessary corporate action on
the part of the Delaware Trustee. The Declaration has been duly executed and
delivered by the Delaware Trustee, and constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(c) The execution, delivery and performance of the Declaration by
the Delaware Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Delaware Trustee.
(d) No consent, approval or authorization of, or registration with
or notice to, any State or Federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee, of the Declaration.
(e) The Delaware Trustee is an entity which has its principal place
of business in the State of Delaware.
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(f) The Delaware Trustee has been authorized to perform its
obligations under the Certificate of Trust and the Declaration. The Declaration
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency, and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law).
ARTICLE XIV
[RESERVED]
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices.
All notices provided for in this Declaration shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
c/o International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Attention: James W. Guedry
(b) if given to the Property Trustee, at the mailing address set
forth below (or such other address as the Property Trustee may give notice of to
the Holders of the Securities):
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[Property Trustee]
[address]
Attention: [Corporate Trust Trustee
Administration]
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Attention: Office of the Treasurer
(d) if given to any other Holder, at the address set forth on the
books and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 15.2 Governing Law.
This Declaration and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 15.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust. The
provisions of this Declaration shall be interpreted to further this intention of
the parties.
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SECTION 15.4 Headings.
Headings contained in this Declaration are inserted for convenience
of reference only and do not affect the interpretation of this Declaration or
any provision hereof.
SECTION 15.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 15.6 Partial Enforceability.
If any provision of this Declaration, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Declaration, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 15.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
[_____________________]
as Trustee
-------------------------------
[_____________________]
as Trustee
-------------------------------
[_____________________]
as Trustee
-------------------------------
[DELAWARE TRUSTEE],
as Delaware Trustee
By:
---------------------------
Name:
Title:
[PROPERTY TRUSTEE], as
Property Trustee
By:
---------------------------
Name:
Title:
INTERNATIONAL PAPER COMPANY
as Sponsor
By:
---------------------------
Name:
Title:
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ANNEX I
TERMS OF
[___]% PREFERRED SECURITIES
[___]% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated Declaration of
Trust, dated as of [Date] (as amended from time to time, the "Declaration"), the
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities and the Common Securities are set out
below (each capitalized term used but not defined herein has the meaning set
forth in the Declaration or, if not defined in such Declaration, as defined in
the Prospectus Supplement referred to below):
1. Designation and Number.
(a) "Preferred Securities." [_______] Preferred Securities of the Trust
with an aggregate liquidation preference with respect to the assets
of the Trust of [__________] Dollars ($[_________])[, plus up to an
additional [______________] Preferred Securities of the Trust with
an aggregate liquidation preference with respect to the assets of
the Trust of [______________] Dollars ($[________]) solely to cover
over-allotments, as provided for in the underwriting agreement (the
"Additional Preferred Securities"),] and a liquidation preference
with respect to the assets of the Trust of $[ ] per Preferred
Security, are hereby designated for the purposes of identification
only as "[___]% Convertible Preferred Securities (liquidation
preference $[__] per Preferred Security)" (the "Preferred
Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form attached
hereto as Exhibit A-1, with such changes and additions thereto or
deletions therefrom as may be required by ordinary usage, custom or
practice or to conform to the rules of any stock exchange or other
organization on which the Preferred Securities are listed.
(b) "Common Securities." [_____] Common Securities of the Trust with an
aggregate liquidation preference with respect to the assets of the
Trust of [_______________________] Dollars ($[________])[, plus
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up to an additional [____] Common Securities of the Trust with an
aggregate liquidation preference with respect to the assets of the
Trust of [____________________] Dollars ($[_______]) to meet the
capital requirements of the Trust in the event of an issuance of
Additional Preferred Securities,] and a liquidation amount with
respect to the assets of the Trust of $[__] per Common Security, are
hereby designated for the purposes of identification only as "[___]%
Common Securities (liquidation amount $[__] per Common Security)"
(the "Common Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form
attached hereto as Exhibit A-2, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
2. Distributions.
(a) Distributions payable on each Security will be fixed at a rate per
annum of [___]% (the "Coupon Rate") of the stated liquidation amount
of $[__] per Security, such rate being the rate of interest payable
on the Debentures to be held by the Property Trustee. Distributions
in arrears for more than one [semi-annual period] [quarter] will
bear interest thereon compounded [semi-annually] [quarterly] at the
Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and
any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the
Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor. The amount of
Distributions payable for any period will be computed for any full
[semi-annually] [quarterly] Distribution period on the basis of a
360- day year of twelve 30-day months, and for any period shorter
than a full [semi-annually] [quarterly] Distribution period for
which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed per 30-day month.
(b) Distributions on the Securities will be cumulative, will accrue from
the date of original issuance and will be payable [semi-annually]
[quarterly] in arrears, on the following dates, which dates
correspond to the interest payment dates on the Debentures:
[_________], of each year, commencing on [________________], except
as otherwise described below. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the
interest payment period from
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time to time on the Debentures for a period not exceeding
[_________] consecutive [semi-annual periods] [quarters] (each an
"Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral,
[semi-annually] [quarterly] Distributions will continue to accrue
with interest thereon (to the extent permitted by applicable law) at
the Coupon Rate compounded [semi-annually] [quarterly] during any
such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such
Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed
[_________] consecutive [semi-annual periods] [quarters]. Payments
of accrued Distributions will be payable to Holders as they appear
on the books and records of the Trust on the first record date after
the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
(c) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust on the
relevant record dates. The relevant record dates shall be 15 days
prior to the relevant payment dates, except as otherwise described
in this Annex I to the Declaration. Subject to any applicable laws
and regulations and the provisions of the Declaration, each such
payment in respect of Preferred Securities being held in book-entry
form through The Depository Trust Company (the "Depositary") will be
made as described under the heading ["Description of the Preferred
Securities -- Book-Entry Only Issuance -- The Depository Trust
Company"] in the Prospectus Supplement. The relevant record dates
for the Common Securities shall be the same record dates as for the
Preferred Securities. Distributions payable on any Securities that
are not punctually paid on any Distribution payment date, as a
result of the Debenture Issuer having failed to make a payment under
the Debentures, will cease to be payable to the Person in whose name
such Securities are registered on the relevant record date, and such
defaulted Distribution will instead be payable to the Person in
whose name such Securities are registered on the special record date
or other specified date determined in accordance with the Indenture.
If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such
date will be made on the next succeeding day that is a Business Day
(and without any interest or other payment in
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respect of any such delay) except that, if such Business Day is in
the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force
and effect as if made on such date.
(d) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property
shall be distributed Pro Rata (as defined herein) among the Holders
of the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution, winding-up
or termination of the Trust, the Holders of the Securities on the date of the
dissolution, winding-up or termination, as the case may be, will be entitled to
receive out of the assets of the Trust available for distribution to Holders of
Securities after satisfaction of liabilities of creditors of the trust an amount
equal to the aggregate of the stated liquidation preference of $[__] per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless, in connection with
such dissolution, winding-up or termination, Debentures in an aggregate
principal amount equal to the aggregate stated liquidation preference of such
Securities, with an interest rate equal to the Coupon Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis in accordance
with paragraph 9 hereof.
4. Redemption and Distribution.
(a) Upon the repayment or payment of the Debentures in
whole or in part, whether at maturity or upon
redemption or otherwise, the proceeds from such
repayment or redemption shall be simultaneously applied
to redeem Securities having an aggregate liquidation
preference equal to the aggregate principal amount of
the Debentures so repaid or redeemed at a redemption
price of $[__] per Security together with accrued and
unpaid Distributions thereon through the date of the
redemption, payable in cash (the "Redemption Price").
Holders will be given not less than 30 nor more than 60
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days' notice of such redemption. Upon the repayment of the
Debentures at maturity or upon any acceleration, earlier redemption
or otherwise, the proceeds from such repayment will be applied to
redeem the Securities, in whole, upon not less than 30 nor more than
60 days' notice.
(b) If fewer than all the outstanding Securities are to be so redeemed,
the Common Securities and the Preferred Securities will be redeemed
Pro Rata and the Preferred Securities to be redeemed will be as
described in Paragraph 4(e)(ii) below.
(c) If, at any time, a Tax Event shall occur and be continuing the
Sponsor shall cause the Regular Trustees to liquidate the Trust and,
after satisfaction of creditors of the Trust, cause Debentures to be
distributed to the Holders of the Securities in liquidation of the
Trust within 90 days following the occurrence of such Tax Event (the
"90 Day Period"); provided, however, that such liquidation and
distribution shall be conditioned on (i) the Regular Trustees'
receipt of an opinion of a nationally recognized independent tax
counsel (reasonably acceptable to the Regular Trustees) experienced
in such matters (a "No Recognition Opinion"), which opinion may rely
on published revenue rulings of the Internal Revenue Service, to the
effect that the Holders of the Securities will not recognize any
income, gain or loss for United States Federal income tax purposes
as a result of such liquidation and distribution of Debentures, and
(ii) the Sponsor being unable to avoid such Tax Event within such 90
Day Period by taking some ministerial action or pursuing some other
reasonable measure that, in the sole judgment of the Sponsor, will
have no adverse effect on the Trust, the Sponsor or the Holders of
the Securities and will involve no material cost ("Ministerial
Action").
If (i) the Debenture Issuer has received an opinion (a
"Redemption Tax Opinion") of a nationally recognized independent tax
counsel (reasonably acceptable to the Regular Trustees) experienced
in such matters that, as a result of a Tax Event, there is more than
an insubstantial risk that the Debenture Issuer would be precluded
from deducting the interest on the Debentures for United States
Federal income tax purposes, even after the Debentures were
distributed to the Holders of Securities upon liquidation of the
Trust as described in this paragraph 4(c), or (ii) the Regular
Trustees shall have been informed by such tax counsel that it cannot
deliver a No Recognition Opinion, the Debenture Issuer shall have
the right, upon
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not less than 30 nor more than 60 days' notice, and within 90 days
following the occurrence of such Tax Event, to redeem the Debentures
in whole (but not in part) for cash, at the Tax Event Prepayment
Price plus accrued and unpaid interest and, following such
redemption, all the Securities will be redeemed by the Trust at the
Tax Event Redemption Price plus accrued and unpaid distributions;
provided, however, that, if at the time there is available to the
Debenture Issuer or the Trust the opportunity to eliminate, within
such 90 Day Period, the Tax Event by taking some Ministerial Action,
the Trust or the Debenture Issuer will pursue such Ministerial
Action in lieu of redemption.
"Adjusted Treasury Rate" means, with respect to any
prepayment date, the rate per annum equal to the [semi-annual]
equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable Treasury
Price for such prepayment date.
"Comparable Treasury Issue" means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the remaining term of the Debentures to be
prepaid that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues
of corporate debt securities of comparable maturity to the remaining
term of the Debentures.
"Comparable Treasury Price" means, with respect to any
prepayment date, (i) the average of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) on the third Business Day preceding such
prepayment date, as set forth in the daily statistical release (or
any successor release) published by the Federal Reserve Bank of New
York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor
release) is not published or does not contain such prices on such
Business Day, (A) the average of the Reference Treasury Dealer
Quotations for such prepayment date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (B) if the
Debenture Trustee obtains fewer than three such Reference Treasury
Dealer quotations, the average of all such Quotations.
"Quotation Agent" means the Reference Treasury Dealer
appointed by the Debenture Issuer.
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"Reference Treasury Dealer" means a nationally
recognized U.S. Government securities dealer in New York City
selected by the Debenture Issuer.
"Reference Treasury Dealer Quotations" means, with
respect to each Reference Treasury Dealer and any prepayment date,
the average, as determined by the Debenture Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing to
the Debenture Trustee by such Reference Treasury Dealer at 5:00
p.m., New York City time, on the third Business Day preceding such
repayment date.
"Tax Event" means that the Sponsor shall have received
an opinion of a nationally recognized independent tax counsel
(reasonably acceptable to the Regular Trustees) experienced in such
matters (a "Dissolution Tax Opinion") to the effect that as a result
of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision or taxing authority
therefor or therein, or (b) any amendment to, or change in, an
interpretation or application of any such laws or regulations by any
legislative body, court, governmental agency or regulatory authority
(including the enactment of any legislation and the publication of
any judicial decision or regulatory determination on or after the
date of the Prospectus Supplement), which amendment or change is
effective or which interpretation or pronouncement is announced on
or after the date of the Prospectus Supplement, there is more than
an insubstantial risk that (i) the Trust is or will be subject to
United States Federal income tax with respect to interest received
on the Debentures, (ii) interest payable by the Debenture Issuer to
the Trust on the Debentures is not or will not be deductible by the
Debenture Issuer for United States Federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date thereof,
subject to more than a de minimis amount of taxes, duties,
assessments or other governmental charges.
"Tax Event Prepayment Price" means a prepayment price
equal to the greater of (1) 100% of the principal amount thereof or
(2) the sum, as determined by a Quotation Agent, of the present
values of the remaining scheduled payments of principal and interest
(after giving effect to payment of accrued interest to the date of
prepayment on the Debentures after the prepayment date), discounted
to the prepayment date on
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a [semi-annual] basis at the Adjusted Treasury Rate plus basis
points if prepaid on or prior to , and basis points if prepaid
thereafter, plus, in any case, accrued and unpaid interest to the
prepayment date.
"Tax Event Redemption Price" means the redemption price
equal to the Tax Event Prepayment Price upon an optional prepayment
by the Debenture Issuer of the Debentures upon the occurrence and
continuation of a Tax Event.
If an Investment Company Event (as hereinafter defined)
shall occur and be continuing, the Sponsor shall cause the Regular
Trustees to liquidate the Trust and cause the Debentures to be
distributed to the Holders of the Securities in liquidation of the
Trust within 90 days following the occurrence of such Investment
Company Event.
"Investment Company Event" means the occurrence of a
change in law or regulation or a written change in interpretation or
application of law or regulation by any legislative body, court,
governmental agency or regulatory authority (a "Change in 1940 Act
Law"), to the effect that the Trust is or will be considered an
"investment company" which is required to be registered under the
United States Investment Company Act, as amended, which Change in
1940 Act Law becomes effective on or after the date of the
Prospectus Supplement.
After the date fixed for any distribution of Debentures:
(i) the Securities will no longer be deemed to be outstanding, (ii)
the Depositary or its nominee (or any successor Clearing Agency or
its nominee), as record Holder of Preferred Securities represented
by global certificates, will receive a registered global certificate
or certificates representing the Debentures to be delivered upon
such distribution and (iii) any certificates representing
Securities, except for certificates representing Preferred
Securities held by the Depositary or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent
Debentures having an aggregate principal preference equal to the
aggregate stated liquidation preference of such Securities, with
accrued and unpaid interest equal to accrued and unpaid
Distributions on such Securities until such certificates are
presented to the Debenture Issuer or its agent for transfer or
reissuance.
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(d) The Securities will not be redeemed unless all accrued and unpaid
Distributions have been paid on all Securities for all [semi-annual]
[quarterly] Distribution periods terminating on or before the date
of redemption.
(e) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a
"Redemption/Distribution Notice") will be given by the Trust
by mail to each Holder of Securities to be redeemed or
exchanged not fewer than 30 nor more than 60 days before the
date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of
the Debentures. For purposes of the calculation of the date of
redemption or exchange and the dates on which notices are
given pursuant to this paragraph 4(f)(i), a
Redemption/Distribution Notice shall be deemed to be given
on the day such notice is first mailed by first-class mail,
postage prepaid, to Holders of Securities. Each
Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder
appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either
thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding Securities
are to be redeemed, the Securities to be redeemed shall be
redeemed Pro Rata from each Holder of Preferred Securities, it
being understood that, in respect of Preferred Securities
registered in the name of and held of record by the Depositary
(or any successor Clearing Agency) or any nominee, the
distribution of the proceeds of such redemption will be made
to each Clearing Agency Participant (or Person on whose behalf
such nominee holds such securities) in accordance with the
procedures applied by such agency or nominee.
(iii) If Securities are to be redeemed and the Trust gives a
Redemption/Distribution Notice, which notice may only be
issued if the Debentures are redeemed as set out in this
paragraph 4 (which notice will be irrevocable), then (A) with
respect to Preferred Securities held in book-entry form,
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by 12:00 noon, New York City time, on the redemption date,
provided that the Debenture Issuer has paid the Property
Trustee a sufficient amount of cash in connection with the
related redemption or maturity of the Debentures, the Property
Trustee will deposit irrevocably with the Depositary (or
successor clearing agency) funds sufficient to pay the amount
payable on redemption with respect to such Preferred
Securities and will give the Depositary irrevocable
instructions and authority to pay the amount payable on
redemption to the Holders of such Preferred Securities, and
(B) with respect to Preferred Securities issued in
certificated form and Common Securities, provided that the
Debenture Issuer has paid the Property Trustee a sufficient
amount of cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will
irrevocably deposit with the Paying Agent funds sufficient to
pay the amount payable on redemption to the Holders of such
Securities upon surrender of their certificates. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, then on the date of such deposit, all
rights of Holders of such Securities so called for redemption
will cease, except the right of the Holders of such Securities
to receive the redemption price, but without interest on such
redemption price. Neither the Regular Trustees nor the Trust
shall be required to register or cause to be registered the
transfer of any Securities that have been so called for
redemption. If any date fixed for redemption of Securities is
not a Business Day, then payment of the amount payable on such
date will be made on the next succeeding day that is a
Business Day (without any interest or other payment in respect
of any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the
immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption.
If payment of the redemption price in respect of any
Securities is improperly withheld or refused and not paid
either by the Trust or by the Sponsor as guarantor pursuant to
the relevant Securities Guarantee, Distributions on such
Securities will continue to accrue at the then applicable
rate, from the original redemption date to the date of
payment, in which case the actual payment date will be
considered the date fixed for redemption for purposes of
calculating the amount
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payable upon redemption (other than for purposes of
calculating any premium).
(iv) Redemption/Distribution Notices shall be sent by the Regular
Trustees on behalf of the Trust to (A) in the case of
Preferred Securities held in book-entry form, the Depositary
and, in the case of Securities held in certificated form, the
Holders of such certificates and (B) in respect of the Common
Securities, the Holder thereof.
(v) Subject to the foregoing and applicable law (including,
without limitation, United States Federal securities laws),
the Sponsor or any of its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
5. [RESERVED].
6. Voting Rights - Preferred Securities.
(a) Except as provided under paragraph 7, in the Business Trust Act and
as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
Subject to the requirements set forth in this paragraph, the Holders
of a majority in liquidation preference of the Preferred Securities,
voting separately as a class may direct the time, method, and place
of conducting any proceeding for any remedy available to the
Property Trustee, or direct the exercise of any trust or power
conferred upon the Property Trustee under the Declaration, including
the right to direct the Property Trustee, as holder of the
Debentures, to (i) exercise the remedies available under the
Indenture with respect to the Debentures, (ii) waive any past
default and its consequences that is waivable under Section 5.13 of
the Indenture, or (iii) exercise any right to rescind or annul a
declaration that the principal of all the Debentures shall be due
and payable, provided, however, that, where a consent under the
Indenture would require the consent or act of the Holders of greater
than a majority of the Holders in principal amount of Debentures
affected thereby (a "Super Majority"), the Property Trustee may only
give such consent or take such action at the direction of the
Holders of at least the proportion in liquidation preference of the
Preferred Securities which the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding. The
Property
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Trustee shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities. Other
than with respect to directing the time, method and place of
conducting any remedy available to the Property Trustee or the
Debenture Trustee as set forth above, the Property Trustee shall not
take any action in accordance with the directions of the Holders of
the Preferred Securities under this paragraph unless the Property
Trustee has obtained an opinion of tax counsel to the effect that,
as a result of such action, the Trust will not fail to be classified
as a grantor trust or partnership for United States Federal income
tax purposes. If the Property Trustee fails to enforce its rights,
as holder of the Debentures, under the Indenture, any Holder of
Preferred Securities may, after a period of 30 days has elapsed from
such Holder's written request to the Property Trustee to enforce
such rights, institute a legal proceeding directly against the
Debenture Issuer, to enforce the rights of the Property Trustee, as
holder of the Debentures, under the Indenture, without first
instituting any legal proceeding against the Property Trustee or any
other Person.
Notwithstanding the foregoing, in the event the Debenture Issuer
shall fail to make any payment on the Debentures when due, holders
of the Preferred Securities shall have the right to institute a
direct action against the Debenture Issuer for payment of such
amounts. Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of
Preferred Securities convened for such purpose, at a meeting of all
of the Holders of Securities in the Trust or pursuant to written
consent. The Regular Trustees will cause a notice of any meeting at
which Holders of Preferred Securities are entitled to vote, or of
any matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Preferred
Securities. Each such notice will include a statement setting forth
the following information: (i) the date of such meeting or the date
by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such
Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies
or consents.
No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities
or to distribute the Deben-
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tures in accordance with the Declaration and the terms of the
Securities.
Notwithstanding that Holders of Preferred Securities are entitled to
vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned by the Sponsor or any
Affiliate of the Sponsor shall not be entitled to vote or consent
and shall, for purposes of such vote or consent, be treated as if
they were not outstanding.
7. Voting Rights - Common Securities.
(a) Except as provided under paragraphs 7(b), (c) and 8, in the Business
Trust Act and as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) The Holders of the Common Securities are entitled, in accordance
with Article V of the Declaration, to vote to appoint, remove or
replace any Trustee.
(c) Subject to Section 2.6 of the Declaration and only after the Event
of Default with respect to the Preferred Securities has been cured,
waived, or otherwise eliminated and subject to the requirements of
the second to last sentence of this paragraph, the Holders of a
Majority in liquidation preference of the Common Securities, voting
separately as a class, may direct the time, method, and place of
conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the
Property Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any remedy
waivable to the Debenture Trustee, or exercising any trust or power
conferred on the Debenture Trustee with respect to the Debentures,
(ii) waive any past default and its consequences that is waivable
under Section 5.13 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration that the principal of all the
Debentures shall be due and payable, provided that, where a consent
or action under the Indenture would require the consent or act of
the Holders of greater than a majority in principal amount of
Debentures affected thereby (a "Super Majority"), the Property
Trustee may only give such consent or take such action at the
direction of the Holders of at least the proportion in liquidation
preference of the Common Securities which the relevant Super
Majority represents of the aggregate principal amount of the
Debentures outstanding. Pursuant to this paragraph 7(c), the
Property Trustee shall not revoke
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any action previously authorized or approved by a vote of the
Holders of the Preferred Securities. Other than with respect to
directing the time, method and place of conducting any remedy
available to the Property Trustee or the Debenture Trustee as set
forth above, the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Common
Securities under this paragraph unless the Property Trustee has
obtained an opinion of tax counsel to the effect that, as a result
of such action the Trust will not fail to be classified as a grantor
trust or a partnership for United States Federal income tax
purposes. If the Property Trustee fails to enforce its rights, as
holder of the Debentures, under the Indenture, any Holder of Common
Securities may, after a period of 30 days has elapsed from such
Holder's written request to the Property Trustee to enforce such
rights, institute a legal proceeding directly against the Debenture
Issuer, to enforce the Property Trustee's rights, as holder of the
Debentures, under the Indenture, without first instituting any legal
proceeding against the Property Trustee or any other Person.
Notwithstanding the foregoing, in the event the Debenture Issuer
shall fail to make any payment on the Debentures when due, Holders
of the Common Securities shall have the right to institute a direct
action against the Debenture Issuer for payment of such amounts. Any
required approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of
Securities in the Trust or pursuant to written consent. The Regular
Trustees will cause a notice of any meeting at which Holders of
Common Securities are entitled to vote, or of any matter upon which
action by written consent of such Holders is to be taken, to be
mailed to each Holder of record of Common Securities. Each such
notice will include a statement setting forth the following
information: (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to
vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the
terms of the Securities.
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8. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section 12.1 of the
Declaration, if any proposed amendment to the Declaration provides
for, or the Regular Trustees otherwise propose to effect, (i) any
action that would adversely affect the powers, preferences or
special rights of the Securities, whether by way of amendment to the
Declaration or otherwise, or (ii) the dissolution, winding-up or
termination of the Trust, other than as described in Section 8.1 of
the Declaration, then the Holders of outstanding Securities as a
class, will be entitled to vote on such amendment or proposal (but
not on any other amendment or proposal) and such amendment or
proposal shall not be effective except with the approval of the
Holders of at least 66-2/3% in liquidation preference of the
Securities, voting together as a single class; provided, however, if
any amendment or proposal referred to in clause (i) above would
adversely affect only the Preferred Securities or only the Common
Securities, then only the affected class will be entitled to vote on
such amendment or proposal and such amendment or proposal shall not
be effective except with the approval of 66-2/3% in liquidation
preference of such class of Securities.
(b) In the event the consent of the Property Trustee as the holder of
the Debentures is required under the Indenture with respect to any
amendment, modification or termination on the Indenture or the
Debentures, the Property Trustee shall request the direction of the
Holders of the Securities with respect to such amendment,
modification or termination and shall vote with respect to such
amendment, modification or termination as directed by a Majority in
liquidation preference of the Securities voting together as a single
class; provided, however, that where a consent under the Indenture
would require the consent of the holders of greater than a majority
in aggregate principal amount of the Debentures (a "Super
Majority"), the Property Trustee may only give such consent at the
direction of the Holders of at least the same proportion in
aggregate stated liquidation preference of the Securities; provided,
further, that the Property Trustee shall not take any action in
accordance with the directions of the Holders of the Securities
under this paragraph 8(b) unless the Property Trustee has obtained
an opinion of tax counsel to the effect that for the purposes of
United States Federal income tax the Trust will not be classified as
other than a grantor trust or partnership on account of such action.
I-15
<PAGE>
9. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each Holder
of Securities according to the aggregate liquidation preference of the
Securities held by the relevant Holder in relation to the aggregate liquidation
preference of all Securities outstanding unless, on any distribution date or
redemption date an Event of Default under the Declaration has occurred and is
continuing, in which case no payment of any distribution on, or amount payable
upon redemption of, any Common Security, and no other payment on account of the
redemption, liquidation or other acquisition of Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid distributions on
all outstanding Preferred Securities for all distribution periods terminating on
or prior thereto, or in the case of payment of the amount payable upon
redemption of the Preferred Securities, the full amount of such amount in
respect of all outstanding Preferred Securities shall have been made or provided
for, and all funds available to the Property Trustee shall first be applied to
the payment in full in cash of all distributions on, or the amount payable upon
redemption of Preferred Securities then due and payable.
10. Ranking.
The Preferred Securities rank pari passu and payment thereon shall
be made Pro Rata with the Common Securities except that, where an Event of
Default occurs and is continuing under the Indenture in respect of the
Debentures held by the Property Trustee, the rights of Holders of the Common
Securities to payment in respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to payment of the
Holders of the Preferred Securities.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by the
acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights to
subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
I-16
<PAGE>
The Sponsor will provide a copy of the Declaration, the Preferred
Securities Guarantee or the Common Securities Guarantee (as may be appropriate),
and the Indenture to a Holder without charge on written request to the Sponsor
at its principal place of business.
I-17
<PAGE>
EXHIBIT A-1
FORM OF PREFERRED SECURITY
A-1
<PAGE>
[FORM OF FACE OF SECURITY]
[Include if Preferred Security is in global form and the Depository
Trust Company is the U. S. Depositary -- UNLESS THIS CERTIFICATE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC) ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
[Include if Preferred Security is in global form -- TRANSFERS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO
NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND
TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE DECLARATION REFERRED TO
BELOW.]
Certificate Number Number of Preferred Securities
[CUSIP NO. [ ]]
Preferred Securities
of
International Paper Capital Trust IV
[___]% Preferred Securities
(liquidation preference $[__] per Preferred Security)
International Paper Capital Trust IV, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that
- --------------------------------------------------------------------------------
(the "Holder") is the registered owner of preferred securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the [___]% Preferred Securities
A1-1
<PAGE>
(liquidation preference $[__] per Preferred Security) (the "Preferred
Securities"). The Preferred Securities are transferable on the books and records
of the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer. The designation,
rights, privileges, restrictions, preferences and other terms and provisions of
the Preferred Securities represented hereby are issued and shall in all respects
be subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of [Date], as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of the Preferred
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Preferred Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Preferred Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Trust at its principal place of business.
Reference is hereby made to select provisions of the Preferred
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States Federal
income tax purposes, the Debentures as indebtedness and the Preferred Securities
as evidence of indirect beneficial ownership in the Debentures.
A1-2
<PAGE>
Unless the Property Trustee's Certificate of Authentication hereon
has been properly executed, these Preferred Securities shall not be entitled to
any benefit under the Declaration or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of ____________, ____.
International Paper Capital Trust IV
By:
--------------------------------
Name:
Title:
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Declaration.
Dated: _________, ____
[PROPERTY TRUSTEE]
as Property Trustee
By:
---------------------------
Authorized Signatory
A1-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed at a
rate per annum of [___]% (the "Coupon Rate") of the stated liquidation
preference of $[__] per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one [semi-annual period] [quarter] will bear interest
thereon compounded [semi-annually] [quarterly] at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full [semi-annual] [quarterly] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [semi-annual] [quarterly] Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Preferred
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [semi-annually] [quarterly] in arrears, on [______________]
of each year, commencing on [________________], to Holders of record fifteen
(15) days prior to such payment dates, which payment dates shall correspond to
the interest payment dates on the Debentures. The Debenture Issuer has the right
under the Indenture to defer payments of interest by extending the interest
payment period from time to time on the Debentures for a period not exceeding
[____] consecutive [semi-annual periods] [quarters] (each an "Extension Period")
and, as a consequence of such deferral, Distributions will also be deferred.
Despite such deferral, [semi-annual] [quarterly] Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at the
Coupon Rate compounded [semi-annually] [quarterly] during any such Extension
Period. Prior to the termination of any such Extension Period, the Debenture
Issuer may further extend such Extension Period; provided that such Extension
Period together with all such previous and further extensions thereof may not
exceed [_____] consecutive [semi-annual periods] [quarters]. Payments of accrued
Distributions will be payable to Holders as they appear on the books and records
of the Trust on the first record date after the end of the Extension Period.
Upon the termination of any Extension Period and the payment of all amounts then
due, the Debenture Issuer may commence a new Extension Period, subject to the
above requirements.
A1-4
<PAGE>
The Preferred Securities shall be redeemable as provided in the
Declaration.
A1-5
<PAGE>
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:*___________________________________________________________
- ----------
* (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A1-6
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY
[FORM OF FACE OF SECURITY]
[THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION OR AN EFFECTIVE REGISTRATION
STATEMENT.]
[OTHER THAN AS PROVIDED IN THE DECLARATION (AS DEFINED HEREIN), THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO A
RELATED PARTY (AS DEFINED IN THE DECLARATION) OF INTERNATIONAL PAPER COMPANY.]
Certificate Number Number of Common Securities
Common Securities
of
International Paper Capital Trust IV
____% Common Securities
(liquidation preference $[___] per Common Security)
International Paper Capital Trust IV, a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), hereby certifies
that
________________________________________________________________________________
(the "Holder") is the registered owner of common securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the ___% Common Securities (liquidation preference $[___] per Common
Security) (the "Common Securities"). The Common Securities are transferable on
the books and records of the Trust, in person or by a duly authorized attorney,
upon surrender of this certificate duly endorsed and in proper form for
transfer. The designation, rights, privileges, restrictions, preferences and
other terms and provisions of the Common Securities represented hereby are
issued and shall in all respects be subject to the provisions of the Amended and
Restated Declaration of Trust of the Trust dated as of [Date], as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Common Securities as set forth in Annex I to the Declaration.
Capitalized terms used
A2-1
<PAGE>
herein but not defined shall have the meaning given them in the Declaration. The
Holder is entitled to the benefits of the Common Securities Guarantee to the
extent provided therein. The Sponsor will provide a copy of the Declaration, the
Common Securities Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business.
Reference is hereby made to select provisions of the Common
Securities set forth on the reverse hereof, which select provisions shall for
all purposes have the same effect as if set forth at this place.
Upon receipt of this certificate, the Sponsor is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat for United States Federal
income tax purposes the Debentures as indebtedness and the Common Securities as
evidence of indirect beneficial ownership in the Debentures.
A2-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this certificate this day
of ________________ ___, ______ .
International Paper Capital Trust IV
By:
-----------------------------
Name:
Title:
A2-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at a
rate per annum of ___% (the "Coupon Rate") of the stated liquidation preference
of $[__] per Common Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions in arrears for
more than one [semi-annual] [quarterly] period will bear interest thereon
compounded [semi-annually] [quarterly] at the Coupon Rate (to the extent
permitted by applicable law). The term "Distributions" as used herein includes
such cash distributions and any such interest payable unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Debentures held by the Property Trustee and to the extent the Property
Trustee has funds available therefor. The amount of Distributions payable for
any period will be computed for any full [semi-annual] [quarterly] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [semi-annual] [quarterly] Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per 30-day month.
Except as otherwise described below, distributions on the Common
Securities will be cumulative, will accrue from the date of original issuance
and will be payable [semi-annually] [quarterly] in arrears, on
[_________________] of each year, commencing on [________________], to Holders
of record fifteen (15) days prior to such payment dates, which payment dates
shall correspond to the interest payment dates on the Debentures. The Debenture
Issuer has the right under the Indenture to defer payments of interest by
extending the interest payment period from time to time on the Debentures for a
period not exceeding [_______] consecutive [semi-annual] [quarterly] periods
(each an "Extension Period") and, as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, [semi-annual]
[quarterly] Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded
[semi-annually] [quarterly] during any such Extension Period. Prior to the
termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed [______]
consecutive [semi-annual] [quarterly] periods. Payments of accrued Distributions
will be payable to Holders as they appear on the books and records of the Trust
on the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then due, the
Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
A2-4
<PAGE>
The Common Securities shall be redeemable as provided in the
Declaration.
A2-5
<PAGE>
---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert assignee's social security or tax identification number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
agent to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee:**__________________________________________________________
- ----------
** (Signature must be guaranteed by an "eligible guarantor institution" that
is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Registrar, which requirements include
membership or participation in the Securities Transfer Agents Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.)
A2-6
<PAGE>
EXHIBIT B
SPECIMEN OF DEBENTURE
<PAGE>
EXHIBIT C
PURCHASE AGREEMENT
<PAGE>
Exhibit 4.13
==========================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
INTERNATIONAL PAPER COMPANY
Dated as of [DATE]
==========================================================
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Preferred Securities
Guarantee"), dated as of [DATE], is executed and delivered by International
Paper Company, a New York corporation (the "Guarantor"), and The Bank of New
York, a New York banking corporation, as trustee (the "Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of International Paper Capital
Trust III, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of [DATE], among the trustees of the Issuer named
therein, the Guarantor, as Sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof [ ] Preferred Securities, having an aggregate stated
liquidation preference of [ ], designated the [ ]% Preferred Securities (the
"Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
2
<PAGE>
NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
3
<PAGE>
"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Common Securities" means the common securities representing common
undivided beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the [ ]% Junior Subordinated Deferrable
Interest Debentures Due 20[ ] held by the Property Trustee of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Preferred
Securities to the extent the Issuer shall have funds available therefore, (ii)
the amount payable upon redemption to the extent the Issuer has funds available
therefor, with respect to any Preferred Securities called for redemption by the
Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution of
Debentures to the Holders in exchange for Preferred Securities as provided in
the Declaration), the lesser of (a) the aggregate of the liquidation preference
and all accrued and unpaid Distributions on the Preferred Securities to the date
of payment, to the extent the Issuer shall have funds available therefor, and
(b) the amount of assets of the Issuer remaining available for distribution to
Holders upon liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments.
4
<PAGE>
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of [DATE], among the
Guarantor (the "Debenture Issuer") and The Bank of New York, as trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to be
issued to the Property Trustee of the Issuer.
"Majority in liquidation preference of the Securities" means, except
as provided by the Trust Indenture Act, Holder(s) of Preferred Securities,
voting separately as a class, representing more than 50% of the stated
liquidation preference (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Preferred
Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two duly authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Certificate has read
the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such offi-
5
<PAGE>
cer's opinion, is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision there of, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Preferred Guarantee 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 that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
6
<PAGE>
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee, which are incorporated by reference hereto, and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee (i)
within 14 days after January 1 and June 30 of each year, a list, in such form as
the Preferred Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders") as of
such date, provided that the Guarantor shall not be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Preferred Guarantee Trustee by the
Guarantor, and (ii) at any other time, within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Guarantee Trustee.
The Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports,
if any, as are
7
<PAGE>
required by Section 313 of the Trust Indenture Act in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information (if any) as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee which relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
The Holders of a Majority in liquidation preference of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to
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the Holders of the Preferred Securities, notices of all Events of Default known
to the Preferred Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, that, the Preferred Guarantee Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Preferred Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Preferred Guarantee Trustee shall have received written notice or a Responsible
Officer charged with the administration of the Declaration shall have obtained
written notice.
SECTION 2.8 Conflicting Interests.
The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder of Preferred Securities
exercising his or her rights pursuant to Section 5.4(b) or to a Successor
Preferred Guarantee Trustee on acceptance by such Successor Preferred Guarantee
Trustee of its appointment to act as Successor Preferred Guarantee Trustee. The
right, title and interest of the Preferred Guarantee Trustee shall automatically
vest in any Successor Preferred Guarantee Trustee, and such vesting and
cessation of title shall be effective
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whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6), the Preferred Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express provisions of
this Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred Securities
Guarantee, and no implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee Trustee;
and
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(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall be under a duty to examine the same
to deter mine whether or not they conform to the requirements of this
Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation preference of the Preferred Securities at the time
outstanding, relating to the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee,
or exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
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that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Preferred Securities
Guarantor contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate
which, upon receipt of such re quest, shall be promptly delivered by the
Guarantor;
(iv) the Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
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(v) the Preferred Guarantee Trustee may consult with counsel,
and the written advice or opinion of such counsel with respect to legal
matters 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 accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include any of
the Guarantor's employees. The Preferred Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(vi) the Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Guarantee Trustee
such adequate security and indemnity as would satisfy a reasonable person
in the position of the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Preferred
Guarantee Trustee; provided that nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Preferred Guarantee Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Preferred Securities Guarantee;
(vii) the Preferred Guarantee 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, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry
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or investigation into such facts or matters as it may see fit;
(viii) the Preferred Guarantee Trustee may execute any of the
trusts or powers here under or perform any duties hereunder either
directly or by or through agents or attorneys, and the Preferred Guarantee
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;
(ix) any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred Securities,
and the signature of the Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action; and
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of the Preferred
Securities or the Guarantor, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or
in which the Preferred
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Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representations as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the
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purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
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(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Subordination
If an Event of Default (as defined in the Indenture), has occurred
and is continuing, the rights of Holders of the Common Securities to receive
Guarantee Payments under the Common Securities Guarantee are subordinated to
the rights of Holders of Preferred Securities to receive Guarantee Payments
under this Preferred Securities Guarantee.
SECTION 5.3 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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SECTION 5.4 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, the amount payable upon redemption,
Liquidation Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions, the
amount payable upon redemption, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
or any extension of the maturity date of the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
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(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.4 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders or any other Person to
give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.5 Rights of Holders.
(a) The Holders of a Majority in liquidation preference of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this
Preferred Securities Guarantee, any Holder of Preferred Securities may, after
such Holder makes a written request to the Preferred Guarantee Trustee to
enforce this Preferred Securities Guarantee, institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other Person.
SECTION 5.6 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provi-
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sions of law) be entitled to enforce or exercise any right that it may acquire
by way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Preferred Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this
Preferred Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.4 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default, an event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default under
the Indenture or a selection by the Guarantor of an Extended Interest Payment
Period as provided in the Indenture and such period, or any extension thereof,
shall be continuing, then (a) the Guarantor shall not declare or pay any
dividend on, or make any distribution with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than stock dividends paid by the Guarantor which stock dividends consist
of the stock of the same class as that on which the dividend is being paid), (b)
the Guarantor shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the
Guarantor which rank pari passu with or junior to the Debentures and (c) shall
not make any guarantee payments with respect to the
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foregoing (other than pursuant to the Preferred Securities Guarantee).
SECTION 6.2 Ranking.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except any liabilities that
may be made pari passu expressly by their terms, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock or Preferred Security of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the amount payable upon redemption of all Preferred Securities, (ii)
the distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in
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accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harm less each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith in accordance with this Preferred Securities Guarantee and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person in accordance with this Preferred
Securities Guarantee, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Guarantor prior to the final
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disposition of such claim, demand, action, suit or proceeding upon receipt by
the Guarantor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
permitted merger or consolidation of the Guarantor with or into another entity
or any permitted sale, transfer or lease of the Guarantor's assets to another
entity, the Guarantor may not assign its rights or delegate its obligations
under the Preferred Securities Guarantee without the prior approval of the
Holders of at least 66-2/3% of the aggregate stated liquidation preference of
the Preferred Securities then outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least 66-2/3% in liquidation preference of all the
outstanding Preferred Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to the
giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
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(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
The Bank of New York
101 Barclay Street
21 West
Attn: Corporate Trust
Trustee Administration
New York, New York 10286
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE
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WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS.
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THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
INTERNATIONAL PAPER
COMPANY, as Guarantor
By:
----------------------------------------
Name: James W. Guedry
Title: Vice President and
Secretary
THE BANK OF NEW YORK, as
Preferred Guarantee Trustee
By:
----------------------------------------
Name: Mary LaGumina
Title: Assistant Vice
President
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Exhibit 4.14
======================================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
INTERNATIONAL PAPER COMPANY
Dated as of [DATE]
======================================================
<PAGE>
PREFERRED SECURITIES GUARANTEE AGREEMENT
This PREFERRED SECURITIES GUARANTEE AGREEMENT ("Preferred Securities
Guarantee"), dated as of [DATE], is executed and delivered by International
Paper Company, a New York corporation (the "Guarantor"), and The Bank of New
York, a New York banking corporation, as trustee (the "Preferred Guarantee
Trustee"), for the benefit of the Holders (as defined herein) from time to time
of the Preferred Securities (as defined herein) of International Paper Capital
Trust IV, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of Trust
(the "Declaration"), dated as of [DATE], among the trustees of the Issuer named
therein, the Guarantor, as Sponsor, and the holders from time to time of
undivided beneficial interests in the assets of the Issuer, the Issuer is
issuing on the date hereof [ ] Preferred Securities, having an aggregate stated
liquidation preference of [ ], designated the [ ]% Preferred Securities (the
"Preferred Securities");
WHEREAS, as incentive for the Holders to purchase the Preferred
Securities, the Guarantor desires irrevocably and unconditionally to agree, to
the extent set forth in this Preferred Securities Guarantee, to pay to the
Holders of the Preferred Securities the Guarantee Payments (as defined herein)
and to make certain other payments on the terms and conditions set forth herein;
and
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Preferred Securities Guarantee for the benefit of the holders of the
Common Securities (as defined herein) except that if an Event of Default (as
defined in the Indenture (as defined herein)), has occurred and is continuing,
the rights of holders of the Common Securities to receive Guarantee Payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.
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NOW, THEREFORE, in consideration of the purchase by each Holder of
Preferred Securities, which purchase the Guarantor hereby agrees shall benefit
the Guarantor, the Guarantor executes and delivers this Preferred Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context otherwise
requires:
(a) Capitalized terms used in this Preferred Securities Guarantee
but not defined in the preamble above have the respective
meanings assigned to them in this Section 1.1;
(b) a term defined anywhere in this Preferred Securities Guarantee
has the same meaning throughout;
(c) all references to "the Preferred Securities Guarantee" or
"this Guarantee" are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee to
Articles and Sections are to Articles and Sections of this
Preferred Securities Guarantee unless other wise specified;
(e) a term defined in the Trust Indenture Act has the same meaning
when used in this Preferred Securities Guarantee unless
otherwise defined in this Preferred Securities Guarantee or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice
versa.
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"Affiliate" has the same meaning as given to that term in Rule 405
of the Securities Act of 1933, as amended, or any successor rule thereunder.
"Common Securities" means the common securities representing common
undivided beneficial interests in the assets of the Issuer.
"Covered Person" means any Holder or beneficial owner of Preferred
Securities.
"Debentures" means the series of junior subordinated debt
securities of the Guarantor designated the [ ]% Junior Subordinated Deferrable
Interest Debentures Due 20[ ] held by the Property Trustee of the Issuer.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Preferred Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Preferred Securities, to the extent not
paid or made by the Issuer: (i) any accrued and unpaid Distributions (as
defined in the Declaration) that are required to be paid on such Preferred
Securities to the extent the Issuer shall have funds available therefore, (ii)
the amount payable upon redemption to the extent the Issuer has funds available
therefor, with respect to any Preferred Securities called for redemption by the
Issuer, and (iii) upon a voluntary or involuntary dissolution, winding-up or
termination of the Issuer (other than in connection with the distribution of
Debentures to the Holders in exchange for Preferred Securities as provided in
the Declaration), the lesser of (a) the aggregate of the liquidation preference
and all accrued and unpaid Distributions on the Preferred Securities to the date
of payment, to the extent the Issuer shall have funds avail able therefor, and
(b) the amount of assets of the Issuer remaining available for distribution to
Holders upon liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common Securities Guarantee are subordinated to the rights of Holders
of Preferred Securities to receive Guarantee Payments.
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"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Preferred Guarantee Trustee, any
Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives or agents of the
Preferred Guarantee Trustee.
"Indenture" means the Indenture dated as of [DATE], among the
Guarantor (the "Debenture Issuer") and The Bank of New York, as trustee, and any
indenture supplemental thereto pursuant to which the Debentures are to be
issued to the Property Trustee of the Issuer.
"Majority in liquidation preference of the Securities" means, except
as provided by the Trust Indenture Act, Holder(s) of Preferred Securities,
voting separately as a class, representing more than 50% of the stated
liquidation preference (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all Preferred
Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two duly authorized officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Certificate has read
the covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer in rendering the Certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such offi-
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cer's opinion, is necessary to enable such officer to express an informed
opinion as to whether or not such covenant or condition has been complied with;
and
(d) a statement as to whether, in the opinion of each such officer,
such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision there of, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means The Bank of New York until a
Successor Preferred Guarantee Trustee has been appointed and has accepted such
appointment pursuant to the terms of this Preferred Securities Guarantee and
thereafter means each such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred Guarantee
Trustee, the chairman of the board of directors, the president, any
vice-president, any assistant vice-president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any trust officer or
assistant trust officer or any other officer of the Preferred Guarantee 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 that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor Preferred
Guarantee Trustee possessing the qualifications to act as Preferred Guarantee
Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
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ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Preferred Securities Guarantee is subject to the provisions
of the Trust Indenture Act that are required to be part of this Preferred
Securities Guarantee, which are incorporated by reference hereto, and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Preferred
Securities Guarantee limits, qualifies or conflicts with the duties imposed by
Sections 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
SECTION 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Preferred Guarantee Trustee (i)
within 14 days after January 1 and June 30 of each year, a list, in such form as
the Preferred Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders") as of
such date, provided that the Guarantor shall not be obligated to provide such
List of Holders at any time the List of Holders does not differ from the most
recent List of Holders given to the Preferred Guarantee Trustee by the
Guarantor, and (ii) at any other time, within 30 days of receipt by the
Guarantor of a written request for a List of Holders as of a date no more than
14 days before such List of Holders is given to the Preferred Guarantee Trustee.
The Preferred Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee.
Within 60 days after May 15 of each year, the Preferred Guarantee
Trustee shall provide to the Holders of the Preferred Securities such reports,
if any, as are
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required by Section 313 of the Trust Indenture Act in the form and in the manner
provided by Section 313 of the Trust Indenture Act. The Preferred Guarantee
Trustee shall also comply with the requirements of Section 313(d) of the Trust
Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee.
The Guarantor shall provide to the Preferred Guarantee Trustee such
documents, reports and information if any as required by Section 314 of the
Trust Indenture Act and the compliance certificate required by Section 314 of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Preferred Guarantee Trustee such
evidence of compliance with any conditions precedent, if any, provided for in
this Preferred Securities Guarantee which relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to be given by an officer pursuant to Section 314(c)(1) may be given in
the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
The Holders of a Majority in liquidation preference of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice.
(a) The Preferred Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to
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the Holders of the Preferred Securities, notices of all Events of Default known
to the Preferred Guarantee Trustee, unless such defaults have been cured before
the giving of such notice, provided, that, the Preferred Guarantee Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors and/or
Responsible Officers of the Preferred Guarantee Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities.
(b) The Preferred Guarantee Trustee shall not be deemed to have
knowledge of any Event of Default except any Event of Default as to which the
Preferred Guarantee Trustee shall have received written notice or a Responsible
Officer charged with the administration of the Declaration shall have obtained
written notice.
SECTION 2.8 Conflicting Interests.
The Declaration shall be deemed to be specifically described in
this Preferred Securities Guarantee for the purposes of clause (i) of the first
proviso contained in Section 310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee.
(a) This Preferred Securities Guarantee shall be held by the
Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Guarantee Agreement to any Person except a Holder of Preferred Securities
exercising his or her rights pursuant to Section 5.4(b) or to a Successor
Preferred Guarantee Trustee on acceptance by such Successor Preferred Guarantee
Trustee of its appointment to act as Successor Preferred Guarantee Trustee. The
right, title and interest of the Preferred Guarantee Trustee shall automatically
vest in any Successor Preferred Guarantee Trustee, and such vesting and
cessation of title shall be effective
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whether or not conveyancing documents have been executed and delivered pursuant
to the appointment of such Successor Preferred Guarantee Trustee.
(b) If an Event of Default has occurred and is continuing, the
Preferred Guarantee Trustee shall enforce this Preferred Securities Guarantee
for the benefit of the Holders of the Preferred Securities.
(c) The Preferred Guarantee Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Preferred Securities Guarantee, and no implied covenants shall be
read into this Preferred Securities Guarantee against the Preferred Guarantee
Trustee. In case an Event of Default has occurred (that has not been cured or
waived pursuant to Section 2.6), the Preferred Guarantee Trustee shall exercise
such of the rights and powers vested in it by this Preferred Securities
Guarantee, and use the same degree of care and skill in its exercise thereof, as
a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee shall be
construed to relieve the Preferred Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express provisions of
this Preferred Securities Guarantee, and the Preferred Guarantee Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Preferred Securities
Guarantee, and no implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee Trustee;
and
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(B) in the absence of bad faith on the part of the
Preferred Guarantee Trustee, the Preferred Guarantee Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon any certificates or opinions
furnished to the Preferred Guarantee Trustee and conforming to the
requirements of this Preferred Securities Guarantee; but in the case of
any such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred Guarantee Trustee,
the Preferred Guarantee Trustee shall be under a duty to examine the same
to deter mine whether or not they conform to the requirements of this
Preferred Securities Guarantee;
(ii) the Preferred Guarantee Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer of the
Preferred Guarantee Trustee, unless it shall be proved that the Preferred
Guarantee Trustee was negligent in ascertaining the pertinent facts upon
which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a Majority
in liquidation preference of the Preferred Securities at the time
outstanding, relating to the time, method and place of conducting any
proceeding for any remedy available to the Preferred Guarantee Trustee,
or exercising any trust or power conferred upon the Preferred Guarantee
Trustee under this Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee shall
require the Preferred Guarantee Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the performance of any
of its duties or in the exercise of any of its rights or powers, if the
Preferred Guarantee Trustee shall have reasonable grounds for believing
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that the repayment of such funds or liability is not reasonably assured to
it under the terms of this Preferred Securities Guarantee or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may rely and shall be
fully protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and
to have been signed, sent or presented by the proper party or parties;
(ii) any direction or act of the Preferred Securities
Guarantor contemplated by this Preferred Securities Guarantee shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking, suffering
or omitting any action hereunder, the Preferred Guarantee Trustee (unless
other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and rely upon an Officers' Certificate
which, upon receipt of such request, shall be promptly delivered by the
Guarantor;
(iv) the Preferred Guarantee Trustee shall have no duty to see
to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
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(v) the Preferred Guarantee Trustee may consult with counsel,
and the written advice or opinion of such counsel with respect to legal
matters 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 accordance with such advice or opinion. Such counsel may be
counsel to the Guarantor or any of its Affiliates and may include any of
the Guarantor's employees. The Preferred Guarantee Trustee shall have the
right at any time to seek instructions concerning the administration of
this Guarantee Agreement from any court of competent jurisdiction.
(vi) the Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Preferred Securities Guarantee at the request or direction of any Holder,
unless such Holder shall have provided to the Preferred Guarantee Trustee
such adequate security and indemnity as would satisfy a reasonable person
in the position of the Preferred Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses) and liabilities that
might be incurred by it in complying with such request or direction,
including such reasonable advances as may be requested by the Preferred
Guarantee Trustee; provided that nothing contained in this Section
3.2(a)(vi) shall be taken to relieve the Preferred Guarantee Trustee, upon
the occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Preferred Securities Guarantee;
(vii) the Preferred Guarantee 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, other evidence of
indebtedness or other paper or document, but the Preferred Guarantee
Trustee, in its discretion, may make such further inquiry
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or investigation into such facts or matters as it may see fit;
(viii) the Preferred Guarantee Trustee may execute any of the
trusts or powers here under or perform any duties hereunder either
directly or by or through agents or attorneys, and the Preferred Guarantee
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;
(ix) any action taken by the Preferred Guarantee Trustee or
its agents hereunder shall bind the Holders of the Preferred Securities,
and the signature of the Preferred Guarantee Trustee or its agents alone
shall be sufficient and effective to perform any such action. No third
party shall be required to inquire as to the authority of the Preferred
Guarantee Trustee to so act or as to its compliance with any of the terms
and provisions of this Preferred Securities Guarantee, both of which shall
be conclusively evidenced by the Preferred Guarantee Trustee's or its
agent's taking such action; and
(x) whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of the Preferred
Securities or the Guarantor, (ii) may refrain from enforcing such remedy
or right or taking such other action until such instructions are received,
and (iii) shall be protected in acting in accordance with such
instructions.
(b) No provision of this Preferred Securities Guarantee shall be
deemed to impose any duty or obligation on the Preferred Guarantee Trustee to
perform any act or acts or exercise any right, power, duty or obligation
conferred or imposed on it, in any jurisdiction in which it shall be illegal, or
in which the Preferred
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Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Preferred Guarantee Trustee shall be construed to be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Guarantee.
The recitals contained in this Preferred Securities Guarantee shall
be taken as the statements of the Guarantor, and the Preferred Guarantee Trustee
does not assume any responsibility for their correctness. The Preferred
Guarantee Trustee makes no representations as to the validity or sufficiency of
this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility.
(a) There shall at all times be a Preferred Guarantee Trustee which
shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof or
of the District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the
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purposes of this Section 4.1(a)(ii), the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
(b) If at any time the Preferred Guarantee Trustee shall cease to be
eligible to so act under Section 4.1(a), the Preferred Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee.
(a) Subject to Section 4.2(b), the Preferred Guarantee Trustee may
be appointed or removed without cause at any time by the Guarantor.
(b) The Preferred Guarantee Trustee shall not be removed in
accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee has
been appointed and has accepted such appointment by written instrument executed
by such Successor Preferred Guarantee Trustee and delivered to the Guarantor.
(c) The Preferred Guarantee Trustee appointed to office shall hold
office until a Successor Preferred Guarantee Trustee shall have been appointed
or until its removal or resignation. The Preferred Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by an instrument
in writing executed by the Preferred Guarantee Trustee and delivered to the
Guarantor, which resignation shall not take effect until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment by
instrument in writing executed by such Successor Preferred Guarantee Trustee and
delivered to the Guarantor and the resigning Preferred Guarantee Trustee.
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(d) If no Successor Preferred Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of an instrument of resignation, the
resigning Preferred Guarantee Trustee may petition any court of competent
jurisdiction for appointment of a Successor Preferred Guarantee Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Preferred Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full
to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Subordination
If an Event of Default (as defined in the Indenture), has occurred
and is continuing, the rights of Holders of the Common Securities to receive
Guarantee Payments under the Common Securities Guarantee are subordinated to
the rights of Holders of Preferred Securities to receive Guarantee Payments
under this Preferred Securities Guarantee.
SECTION 5.3 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Preferred
Securities Guarantee and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands.
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SECTION 5.4 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor
under this Preferred Securities Guarantee shall in no way be affected or
impaired by reason of the happening from time to time of any of the following:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Issuer of any express or implied agreement,
covenant, term or condition relating to the Preferred Securities to be performed
or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all or
any portion of the Distributions, the amount payable upon redemption,
Liquidation Distribution or any other sums payable under the terms of the
Preferred Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of Distributions, the
amount payable upon redemption, Liquidation Distribution or other sum payable
that results from the extension of any interest payment period on the Debentures
or any extension of the maturity date of the Debentures permitted by the
Indenture);
(c) any failure, omission, delay or lack of diligence on the part of
the Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Preferred Securities, or
any action on the part of the Issuer granting indulgence or extension of any
kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of
any collateral, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or readjustment
of debt of, or other similar proceedings affecting, the Issuer or any of the
assets of the Issuer;
(e) any invalidity of, or defect or deficiency in the Preferred
Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
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(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it being
the intent of this Section 5.4 that the obligations of the Guarantor hereunder
shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders or any other Person to
give notice to, or obtain consent of, the Guarantor with respect to the
happening of any of the foregoing.
SECTION 5.5 Rights of Holders.
(a) The Holders of a Majority in liquidation preference of the
Preferred Securities have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Preferred Guarantee
Trustee in respect of this Preferred Securities Guarantee or exercising any
trust or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce this
Preferred Securities Guarantee, any Holder of Preferred Securities may, after
such Holder makes a written request to the Preferred Guarantee Trustee to
enforce this Preferred Securities Guarantee, institute a legal proceeding
directly against the Guarantor to enforce its rights under this Preferred
Securities Guarantee, without first instituting a legal proceeding against the
Issuer, the Preferred Guarantee Trustee or any other Person.
SECTION 5.6 Guarantee of Payment.
This Preferred Securities Guarantee creates a guarantee of payment
and not of collection.
SECTION 5.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the
Holders of Preferred Securities against the Issuer in respect of any amounts
paid to such Holders by the Guarantor under this Preferred Securities Guarantee;
provided, however, that the Guarantor shall not (except to the extent required
by mandatory provi-
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sions of law) be entitled to enforce or exercise any right that it may acquire
by way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Preferred Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this
Preferred Securities Guarantee. If any amount shall be paid to the Guarantor in
violation of the preceding sentence, the Guarantor agrees to hold such amount in
trust for the Holders and to pay over such amount to the Holders.
SECTION 5.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.4 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, if there
shall have occurred an Event of Default, an event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default under
the Indenture or a selection by the Guarantor of an Extended Interest Payment
Period as provided in the Indenture and such period, or any extension thereof,
shall be continuing, then (a) the Guarantor shall not declare or pay any
dividend on, or make any distribution with respect to, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of its capital stock
(other than stock dividends paid by the Guarantor which stock dividends consist
of the stock of the same class as that on which the dividend is being paid), (b)
the Guarantor shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities issued by the
Guarantor which rank pari passu with or junior to the Debentures and (c) shall
not make any guarantee payments with respect to the
20
<PAGE>
foregoing (other than pursuant to the Preferred Securities Guarantee).
SECTION 6.2 Ranking.
This Preferred Securities Guarantee will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to all other liabilities of the Guarantor, except any liabilities that
may be made pari passu expressly by their terms, (ii) pari passu with the most
senior preferred or preference stock now or hereafter issued by the Guarantor
and with any guarantee now or hereafter entered into by the Guarantor in respect
of any preferred or preference stock or Preferred Security of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Preferred Securities Guarantee shall terminate upon (i) full
payment of the amount payable upon redemption of all Preferred Securities, (ii)
the distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) full payment of the amounts payable in accordance with the
Declaration upon liquidation of the Issuer. Notwithstanding the foregoing, this
Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith in
21
<PAGE>
accordance with this Preferred Securities Guarantee and in a manner that such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Preferred Securities Guarantee or
by law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's negligence or
willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified Person from and
against any loss, damage or claim incurred by such Indemnified Person by reason
of any act or omission performed or omitted by such Indemnified Person in good
faith in accordance with this Preferred Securities Guarantee and in a manner
such Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person in accordance with this Preferred
Securities Guarantee, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Indemnified
Person by reason of negligence or willful misconduct with respect to such acts
or omissions.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees and expenses) incurred by an Indemnified Person in
defending any claim, demand, action, suit or proceeding shall, from time to
time, be advanced by the Guarantor prior to the final
22
<PAGE>
disposition of such claim, demand, action, suit or proceeding upon receipt by
the Guarantor of an undertaking by or on behalf of the Indemnified Person to
repay such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified as authorized in Section 8.2(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Preferred Securities
Guarantee shall bind the successors, assigns, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Holders
of the Preferred Securities then outstanding. Except in connection with any
permitted merger or consolidation of the Guarantor with or into another entity
or any permitted sale, transfer or lease of the Guarantor's assets to another
entity, the Guarantor may not assign its rights or delegate its obligations
under the Preferred Securities Guarantee without the prior approval of the
Holders of at least 66-2/3% of the aggregate stated liquidation preference of
the Preferred Securities then outstanding.
SECTION 9.2 Amendments.
Except with respect to any changes that do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Preferred Securities Guarantee may only be amended with the prior approval of
the Holders of at least 66-2/3% in liquidation preference of all the
outstanding Preferred Securities. The provisions of Section 12.2 of the
Declaration with respect to meetings of Holders of the Securities apply to the
giving of such approval.
SECTION 9.3 Notices.
All notices provided for in this Preferred Securities Guarantee
shall be in writing, duly signed by the party giving such notice, and shall be
delivered, telecopied or mailed by registered or certified mail, as follows:
23
<PAGE>
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
The Bank of New York
101 Barclay Street
21 West
Attn: Corporate Trust
Trustee Administration
New York, New York 10286
(b) If given to the Guarantor, at the Guarantor's mailing address
set forth below (or such other address as the Guarantor may give notice of to
the Holders of the Preferred Securities):
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
(c) If given to any Holder of Preferred Securities, at the address
set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Preferred Securities Guarantee is solely for the benefit of the
Holders of the Preferred Securities and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law.
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE
24
<PAGE>
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS.
25
<PAGE>
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day and
year first above written.
INTERNATIONAL PAPER
COMPANY, as Guarantor
By:
-----------------------------------------
Name: James W. Guedry
Title: Vice President and
Secretary
THE BANK OF NEW YORK, as
Preferred Guarantee Trustee
By:
-----------------------------------------
Name: Mary LaGumina
Title: Assistant Vice President
26
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our reports dated February 6, 1998
included or incorporated by reference in International Paper Company's Form 10-K
for the year ended December 31, 1997, and to all references to our Firm included
in this Registration Statement.
ARTHUR ANDERSEN LLP
New York, New York,
August 28, 1998.
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints James
W. Guedry and Barbara L. Smithers, and each of them, his or her true and lawful
attorneys-in-fact and agents with full power of substitution and resubstitution,
for him or her and in his or her name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to the Registration Statement covering the offering and issuance of the
preferred stock of a trust, limited partnership, limited liability company or
wholly-owned subsidiary of or affiliated with International Paper Company (the
"Issuer"), to be issued and sold from time to time pursuant to such registration
statement and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, and hereby
grants to such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them or his, her or their substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ John T. Dillon
- --------------------------- Director and Chairman of the
John T. Dillon Board (Chief Executive Officer) July 14, 1998
/s/ C. Wesley Smith
- --------------------------- Executive Vice President and July 14, 1998
C. Wesley Smith Director
<PAGE>
- --------------------------- Director July 14, 1998
Willard C. Butcher
/s/ Robert J. Eaton
- --------------------------- Director July 14, 1998
Robert J. Eaton
/s/ Peter I. Bijur
- --------------------------- Director July 14, 1998
Peter I. Bijur
/s/ John A. Georges
- --------------------------- Director July 14, 1998
John A. Georges
/s/ Thomas C. Graham
- --------------------------- Director July 14, 1998
Thomas C. Graham
/s/ John R. Kennedy
- --------------------------- Director July 14, 1998
John R. Kennedy
/s/ Donald F. McHenry
- --------------------------- Director July 14, 1998
Donald F. McHenry
2
<PAGE>
/s/ Patrick F. Noonan
- --------------------------- Director July 14, 1998
Patrick F. Noonan
- --------------------------- Director July 14, 1998
Jane C. Pfeiffer
/s/ Edmund T. Pratt, Jr.
- --------------------------- Director July 14, 1998
Edmund T. Pratt, Jr.
/s/ Charles R. Shoemate
- --------------------------- Director July 14, 1998
Charles R. Shoemate
/s/ Marianne M. Parrs
- --------------------------- Senior Vice President and Chief July 14, 1998
Marianne M. Parrs Financial Officer
/s/ Andrew R. Lessin
- --------------------------- Vice President and Controller and July 14, 1998
Andrew R. Lessin Chief Accounting Officer
3
<PAGE>
Exhibit 25.3
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2) |_|
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-----------------
INTERNATIONAL PAPER CAPITAL TRUST III
(Exact name of obligor as specified in its charter)
De1aware Applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two Manhattanville Road 10577
Purchase, New York (Zip code)
(Address of principal executive offices)
-----------------
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and A1bany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty P1aza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-1aws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the 1atest report of condition of the Trustee published
pursuant to 1aw or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the 1aws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 18th day of August, 1998.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
-------------------------------
Name: REMO J. REAiLE
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10285
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............ $ 6,397,993
Interest-bearing balances ..................................... 1,138,362
Securities:
Held-to-maturity securities ................................... 1,062,074
Available-for-sale securities ................................. 4,167,240
Federal funds sold and Securities purchased under agreements
to resell ..................................................... 391,650
Loans and lease financing receivables:
Loans and leases, net of unearned income .......... 36,535,242
LESS: Allowance for loan and lease losses ......... 631,725
LESS: Allocated transfer risk reserve ............. 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 35,906,517
Assets held in trading accounts ................................. 2,145,149
Premises and fixed assets (including capitalized leases) ........ 653,928
Other real estate owned ......................................... 10,595
Investments in unconsolidated subsidiaries and associated
companies ..................................................... 237,991
Customers' liability to this bank on acceptances outstanding .... 992,747
Intangible assets ............................................... 1,072,517
Other assets .................................................... 1,643,173
------------
Total assets .................................................... 55,830,235
============
LIABILITIES
Deposits
In domestic offices ........................................... $ 24,549,054
Noninterest-bearing ............................... 10,011,422
Interest-bearing .................................. 14,537,632
In foreign offices [ILLEGIBLE] and Agreement
subsidiaries and [ILLEGIBLE] ................................ 15,319,002
Noninterest-bearing ............................. 707,820
Interest-bearing ................................ 14,611,152
Federal funds purchased and Securities sold under agreements to
repurchase .................................................... 1,906,055
Demand notes issued to the U.S. Treasury ........................ 215,935
Trading liabilities ............................................. 1,591,283
Other borrowed money:
With remaining maturity of one year or less ................... 1,991,119
With remaining maturity of more than one year through three
years ....................................................... 0
With remaining maturity of more than three years .............. 25,574
Banks liability or acceptances executed and outstanding ......... 995,145
Subordinated notes and debentures ............................... 1,314,000
Other liabilities ............................................... 2,421,281
------------
Total liabilities ............................................... 50,631,514
------------
EQUITY CAPITAL
Common stock .................................................... 1,135,254
Surplus ......................................................... 731,319
Undivided profits and capital reserves .......................... 3,328,050
Net unrealized holding gains (losses) or available-for-sale
securities .................................................... 40,198
Cumulative foreign currency translation adjustments ............. (36,129)
------------
Total equity capital ............................................ 5,198,722
------------
Total liabilities and equity capital ............................ $ 55,830,235
============
I, Robert E. Keitman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keitman
We the undersigned directors attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Alan R. Gyton Directors
J. Carter Bazot
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.4
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2) |_|
-----------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
-----------------
INTERNATIONAL PAPER CAPITAL TRUST IV
(Exact name of obligor as specified in its charter)
Delaware Applied for
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two Manhattanville Road 10577
Purchase, New York (Zip code)
(Address of principal executive offices)
-----------------
Trust Preferred Securities
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-1aws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 18th day of August, 1998.
THE BANK OF NEW YORK
By: /s/ REMO J. REALE
-------------------------------
Name: REMO J. REAiLE
Title: ASSISTANT VICE PRESIDENT
-4-
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10285
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............ $ 6,397,993
Interest-bearing balances ..................................... 1,138,362
Securities:
Held-to-maturity securities ................................... 1,062,074
Available-for-sale securities ................................. 4,167,240
Federal funds sold and Securities purchased under agreements
to resell ..................................................... 391,650
Loans and lease financing receivables:
Loans and leases, net of unearned income .......... 36,535,242
LESS: Allowance for loan and lease losses ......... 631,725
LESS: Allocated transfer risk reserve ............. 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 35,906,517
Assets held in trading accounts ................................. 2,145,149
Premises and fixed assets (including capitalized leases) ........ 653,928
Other real estate owned ......................................... 10,595
Investments in unconsolidated subsidiaries and associated
companies ..................................................... 237,991
Customers' liability to this bank on acceptances outstanding .... 992,747
Intangible assets ............................................... 1,072,517
Other assets .................................................... 1,643,173
------------
Total assets .................................................... 55,830,235
============
LIABILITIES
Deposits
In domestic offices ........................................... $ 24,549,054
Noninterest-bearing ............................... 10,011,422
Interest-bearing .................................. 14,537,632
In foreign offices [ILLEGIBLE] and Agreement
subsidiaries and [ILLEGIBLE] ................................ 15,319,002
Noninterest-bearing ............................. 707,820
Interest-bearing ................................ 14,611,152
Federal funds purchased and Securities sold under agreements to
repurchase .................................................... 1,906,055
Demand notes issued to the U.S. Treasury ........................ 215,935
Trading liabilities ............................................. 1,591,283
Other borrowed money:
With remaining maturity of one year or less ................... 1,991,119
With remaining maturity of more than one year through three
years ....................................................... 0
With remaining maturity of more than three years .............. 25,574
Banks liability or acceptances executed and outstanding ......... 995,145
Subordinated notes and debentures ............................... 1,314,000
Other liabilities ............................................... 2,421,281
------------
Total liabilities ............................................... 50,631,514
------------
EQUITY CAPITAL
Common stock .................................................... 1,135,254
Surplus ......................................................... 731,319
Undivided profits and capital reserves .......................... 3,328,050
Net unrealized holding gains (losses) or available-for-sale
securities .................................................... 40,198
Cumulative foreign currency translation adjustments ............. (36,129)
------------
Total equity capital ............................................ 5,198,722
------------
Total liabilities and equity capital ............................ $ 55,830,235
============
I, Robert E. Keitman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keitman
We the undersigned directors attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Alan R. Gyton Directors
J. Carter Bazot
<PAGE>
Exhibit 25.5
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2) |_|
--------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------
INTERNATIONAL PAPER COMPANY
(Exact name of obligor as specified in its charter)
New York 13-0872805
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two Manhattanville Road
Purchase, New York 10577
(Address of principal executive offices) (Zip code)
--------------------
Guarantee of Trust Preferred Securities of International
Paper Capital Trust III
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 18th day of August, 1998.
THE BANK OF NEW YORK
By: /s/ Remo J. Reale
--------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 18th day of August, 1998.
THE BANK OF NEW YORK
By: /s/ Remo J. Reale
--------------------------------
Name: Remo J. Reale
Title: Assistant Vice President
-4-
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10285
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............ $ 6,397,993
Interest-bearing balances ..................................... 1,138,362
Securities:
Held-to-maturity securities ................................... 1,062,074
Available-for-sale securities ................................. 4,167,240
Federal funds sold and Securities purchased under agreements
to resell ..................................................... 391,650
Loans and lease financing receivables:
Loans and leases, net of unearned income .......... 36,535,242
LESS: Allowance for loan and lease losses ......... 631,725
LESS: Allocated transfer risk reserve ............. 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 35,906,517
Assets held in trading accounts ................................. 2,145,149
Premises and fixed assets (including capitalized leases) ........ 653,928
Other real estate owned ......................................... 10,595
Investments in unconsolidated subsidiaries and associated
companies ..................................................... 237,991
Customers' liability to this bank on acceptances outstanding .... 992,747
Intangible assets ............................................... 1,072,517
Other assets .................................................... 1,643,173
------------
Total assets .................................................... 55,830,235
============
LIABILITIES
Deposits
In domestic offices ........................................... $ 24,549,054
Noninterest-bearing ............................... 10,011,422
Interest-bearing .................................. 14,537,632
In foreign offices [ILLEGIBLE] and Agreement
subsidiaries and [ILLEGIBLE] ................................ 15,319,002
Noninterest-bearing ............................. 707,820
Interest-bearing ................................ 14,611,152
Federal funds purchased and Securities sold under agreements to
repurchase .................................................... 1,906,055
Demand notes issued to the U.S. Treasury ........................ 215,935
Trading liabilities ............................................. 1,591,283
Other borrowed money:
With remaining maturity of one year or less ................... 1,991,119
With remaining maturity of more than one year through three
years ....................................................... 0
With remaining maturity of more than three years .............. 25,574
Banks liability or acceptances executed and outstanding ......... 995,145
Subordinated notes and debentures ............................... 1,314,000
Other liabilities ............................................... 2,421,281
------------
Total liabilities ............................................... 50,631,514
------------
EQUITY CAPITAL
Common stock .................................................... 1,135,254
Surplus ......................................................... 731,319
Undivided profits and capital reserves .......................... 3,328,050
Net unrealized holding gains (losses) or available-for-sale
securities .................................................... 40,198
Cumulative foreign currency translation adjustments ............. (36,129)
------------
Total equity capital ............................................ 5,198,722
------------
Total liabilities and equity capital ............................ $ 55,830,235
============
I, Robert E. Keitman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keitman
We the undersigned directors attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Alan R. Gyton Directors
J. Carter Bazot
- --------------------------------------------------------------------------------
<PAGE>
Exhibit 25.6
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b) (2) |_|
--------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------------
INTERNATIONAL PAPER COMPANY
(Exact name of obligor as specified in its charter)
New York 13-0872805
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Two Manhattanville Road
Purchase, New York 10577
(Address of principal executive offices) (Zip code)
--------------------
Guarantee of Trust Preferred Securities of International
Paper Capital Trust IV
(Title of the indenture securities)
================================================================================
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit
1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form
T-1 filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or
examining authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 18th day of August, 1998.
THE BANK OF NEW YORK
By: /s/ Remo J. Reale
----------------------------
Name: Remo J. Reale
Title: Assistant Vice President
-4-
<PAGE>
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10285
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1998,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............ $ 6,397,993
Interest-bearing balances ..................................... 1,138,362
Securities:
Held-to-maturity securities ................................... 1,062,074
Available-for-sale securities ................................. 4,167,240
Federal funds sold and Securities purchased under agreements
to resell ..................................................... 391,650
Loans and lease financing receivables:
Loans and leases, net of unearned income .......... 36,535,242
LESS: Allowance for loan and lease losses ......... 631,725
LESS: Allocated transfer risk reserve ............. 0
Loans and leases, net of unearned income, allowance, and
reserve ..................................................... 35,906,517
Assets held in trading accounts ................................. 2,145,149
Premises and fixed assets (including capitalized leases) ........ 653,928
Other real estate owned ......................................... 10,595
Investments in unconsolidated subsidiaries and associated
companies ..................................................... 237,991
Customers' liability to this bank on acceptances outstanding .... 992,747
Intangible assets ............................................... 1,072,517
Other assets .................................................... 1,643,173
------------
Total assets .................................................... 55,830,235
============
LIABILITIES
Deposits
In domestic offices ........................................... $ 24,549,054
Noninterest-bearing ............................... 10,011,422
Interest-bearing .................................. 14,537,632
In foreign offices [ILLEGIBLE] and Agreement
subsidiaries and [ILLEGIBLE] ................................ 15,319,002
Noninterest-bearing ............................. 707,820
Interest-bearing ................................ 14,611,152
Federal funds purchased and Securities sold under agreements to
repurchase .................................................... 1,906,055
Demand notes issued to the U.S. Treasury ........................ 215,935
Trading liabilities ............................................. 1,591,283
Other borrowed money:
With remaining maturity of one year or less ................... 1,991,119
With remaining maturity of more than one year through three
years ....................................................... 0
With remaining maturity of more than three years .............. 25,574
Banks liability or acceptances executed and outstanding ......... 995,145
Subordinated notes and debentures ............................... 1,314,000
Other liabilities ............................................... 2,421,281
------------
Total liabilities ............................................... 50,631,514
------------
EQUITY CAPITAL
Common stock .................................................... 1,135,254
Surplus ......................................................... 731,319
Undivided profits and capital reserves .......................... 3,328,050
Net unrealized holding gains (losses) or available-for-sale
securities .................................................... 40,198
Cumulative foreign currency translation adjustments ............. (36,129)
------------
Total equity capital ............................................ 5,198,722
------------
Total liabilities and equity capital ............................ $ 55,830,235
============
I, Robert E. Keitman, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Robert E. Keitman
We the undersigned directors attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Alan R. Gyton Directors
J. Carter Bazot
- --------------------------------------------------------------------------------
