<PAGE> 1
EXHIBIT 99.8
CREDIT SUISSE FIRST BOSTON CORPORATION
ELEVEN MADISON AVENUE
NEW YORK, NY 10010
May 22, 2000
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
INTERNATIONAL PAPER COMPANY
STANDBY PURCHASE
COMMITMENT LETTER
Ladies and Gentlemen:
You have advised Credit Suisse First Boston Corporation ("CSFB") that
International Paper Company ("IP" or "you") intends to acquire (the
"Acquisition") Champion International Corporation (the "Company"). You have
further advised us that the Acquisition will be accomplished by an exchange
offer (the "Exchange Offer") by a wholly owned subsidiary of IP ("Acquico") for
the outstanding shares (the "Shares") of capital stock of the Company followed
by a merger of Acquico and the Company, with the surviving entity of such merger
being a wholly owned subsidiary of IP (the "Merger"), pursuant to an agreement
and plan of merger previously entered into among IP, Acquico, and the Company
and related documents (collectively, the "Acquisition Agreement"). We understand
that (i) the Exchange Offer will be conditioned, among other things, on the
tender and purchase (or exchange) of at least that number of Shares that will
permit Acquico, acting alone, to effectuate the Merger and (ii) the total
consideration for tendered Shares and the Merger will be $75.00 per Share of
which $50.00 will be paid in cash and the remainder will be paid in the form of
common stock of IP (the "Equity Issuance").
You have advised CSFB that, in addition to the $3,050,000,000 senior
unsecured bank credit facilities (the "Bank Credit Facilities") which are the
subject of a commitment letter among you and an affiliate of CSFB of even date
herewith, you contemplate entering into one or more capital markets transactions
involving the issuance of debt securities (the "Debt Securities") in an
aggregate principal amount of up to $3,000,000,000 prior to or concurrent with
the Acquisition. You have requested CSFB to present to you capital markets
alternatives for the sale of the Debt Securities on terms acceptable to you. In
the event that you are not able to consummate the sale of the Debt Securities,
or a portion thereof, on terms acceptable to you, you have requested that CSFB
purchase, as standby purchaser (the "Standby Purchaser"), from you senior
unsecured floating rate money market notes (the "Money Market Notes") in an
amount equal to the remaining unsold amount of Debt Securities (up to
$3,000,000,000). You would sell the Money Market Notes to CSFB on a private
placement basis (the "Placement"). A summary of the preliminary terms of the
Money Market Notes is set forth in Exhibit A hereto (the "Term Sheet"). The
offer and sale of the Debt Securities and the Placement of Money Market Notes
are herein collectively referred to as the "Debt Issuance". The Debt Securities
and the Money Market Notes are herein collectively referred to as the
"Securities".
You have further advised us that the proceeds from the Debt Issuance,
together with a portion of proceeds from the Bank Credit Facilities and cash on
hand of IP and the Company, would be used to finance (a) the cash consideration
paid in the Exchange Offer and (b) on the date of the Merger, the remaining cash
consideration of the Acquisition and the refinancing of existing indebtedness of
the Company to the extent required by the Acquisition (the "Refinancing"). The
(i) Acquisition, (ii) Exchange Offer, (iii) Merger, (iv) Refinancing, (v) Equity
Issuance, (vi) borrowings under the Bank Credit Facilities and (vii) Debt
Issuance are collectively referred to herein as the "Transactions".
In connection with the foregoing, CSFB is pleased to act as, and you hereby
appoint CSFB to act as, the Standby Purchaser with respect to the Money Market
Notes upon the terms and subject to the conditions specified or referred to in
this letter, in Exhibit B hereto (the "Conditions") and in the Term Sheet.
Further,
<PAGE> 2
you hereby engage CSFB to act as sole placement agent and/or sole lead (books)
underwriter (collectively the "Placement Agent") in connection with the Money
Market Notes upon the terms and subject to the conditions specified or referred
to in this letter and in a purchase agreement in the form of CSFB's standard
agreement for such purpose.
You understand and agree that CSFB's obligations to purchase the Money
Market Notes and to act as Standby Purchaser and Placement Agent are expressly
subject to the terms and conditions set forth herein and in the Term Sheet and
the Conditions and will exist only upon the execution and delivery of definitive
documentation, including, without limitation, an underwriting or purchase
agreement in CSFB's customary form and an indenture or fiscal agency agreement,
satisfactory to CSFB and its counsel (such definitive documentation shall
include CSFB's standard conditions precedent, representations, warranties,
covenants and indemnifications, among other things). Furthermore, you hereby
agree that it shall be a condition to CSFB's obligations as the Standby
Purchaser and Placement Agent of the Money Market Notes that you shall, in good
faith, work with CSFB to develop capital markets alternatives for the sale of
the Debt Securities on terms acceptable to you.
As consideration for CSFB's commitment hereunder and the services described
herein, you agree to pay to CSFB the non-refundable fees set forth in the Fee
Letter dated the date hereof and delivered herewith (as the same may be amended
or modified from time to time in accordance with its terms, the "Fee Letter").
You agree to assist CSFB, and to use your commercially reasonable efforts
to cause the Company to assist CSFB, in a timely completion of the Debt
Issuance. Such assistance shall include (a) your using your commercially
reasonable efforts to ensure, and to use your commercially reasonable efforts to
cause the Company to use its commercially reasonable efforts to ensure, that
CSFB materially benefits from your and the Company's existing lending
relationships, (b) assistance by you and your using your commercially reasonable
efforts to cause assistance by the Company in the preparation of one or more
offering documents and other marketing materials (including assistance in
obtaining industry data) to be used in connection with the Debt Issuance, (c)
assistance by you and your using commercially reasonable efforts to cause the
Company to participate in due diligence sessions and to participate in one or
more road shows and "one-on-one" meetings to market the Securities and (d) upon
CSFB's request, to take such other actions as may be necessary or desirable in
connection with the structuring, arranging, placement and underwriting of the
Securities. Additionally, you agree that prior to completion of the Debt
Issuance, or the earlier termination of this Commitment Letter unless otherwise
agreed to by CSFB, there shall be no competing issues of debt securities or
commercial bank facilities of IP or any of its subsidiaries (it being understood
that competing issues would not include debt securities or commercial bank
facilities currently outstanding but would include, without limitation, issues
of new (or refinancing of existing) debt securities or commercial bank
facilities) other than (i) the Bank Credit Facilities, (ii) debt incurred to
refinance outstanding debt which, in the ordinary course, becomes due and owing
at its scheduled maturity, (iii) debt guaranteed by you and issued by a
governmental authority in connection with any of your facilities, and (iv) debt
issued by Carter Holt Harvey, Ltd. or Bush Boake & Allen Company.
You agree to furnish CSFB with all financial and other information
concerning IP (and the Company) CSFB deems appropriate in connection with the
performance of the services contemplated by this letter, and, in that
connection, will provide CSFB with access to your and the Company's officers,
directors, employees, accountants, counsel and other representatives. You
acknowledge and confirm that CSFB (i) will rely on such information in the
performance of the services contemplated by this letter without independently
investigating or verifying any of such information and (ii) assumes no
responsibility for the accuracy or completeness of such information.
You will be solely responsible for the contents of (i) the private
placement memorandum or other offering documents used in connection with the
Securities (such materials, as they may be amended or supplemented and including
any information incorporated therein by reference, the "Offering Materials") and
any and all other written or oral communications provided by or on behalf of IP
to any actual or prospective purchaser of the Securities. You represent and
warrant that the Offering Materials and such other communications will not, as
of the date of the offer or sale (or the closing date of any such sale) of the
2
<PAGE> 3
Securities contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. You authorize CSFB to provide the Offering Materials to
prospective purchasers of the Securities. If at any time prior to the completion
of the offer and sale of the Securities, an event occurs as a result of which
the applicable Offering Materials (as then supplemented or amended) would
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, IP will promptly
notify CSFB of such event and CSFB will suspend solicitations of prospective
purchasers of the Securities, or will delay the closing of the Securities, until
such time as you shall prepare (and you agree that you will in such case
promptly prepare) a supplement or amendment to the applicable Offering Materials
which corrects such statement or omission.
CSFB reserves the right, after consultation with you, to change any or all
of the terms, structure, amount, tenor (provided that in no event shall the
tenor be less than 18 months) or pricing of the Money Market Notes as set forth
herein and in the Term Sheet and the Fee Letter if such changes are advisable,
in CSFB's judgment, to ensure that the Money Market Notes are successfully
offered and sold (as determined by CSFB) by CSFB as Placement Agent, provided
that the aggregate principal amount of the Money Market Notes remains the same.
It is understood that the offer and sale of the Securities will be exempt
from the registration requirements of the Securities Act. IP will not, directly
or indirectly, make any offer or sale of the Securities, or of securities of the
same or a similar class as the Securities if as a result the offer and sale of
the Securities contemplated hereby would, in the opinion of CSFB, fail to be
entitled to the exemption from the registration requirements of the Securities
Act. IP represents and warrants to CSFB that it has not, directly or indirectly,
made any offers or sale of the Securities, or securities of the same or similar
class as the Securities during the six-month period ending on the date of this
letter, and has no intention of making an offer or sale of the Securities, or
securities of the same or similar class as the Securities for a period of six
months after completion of the issuances contemplated hereby. It is further
understood and agreed that IP will not offer or sell any securities if, in the
opinion of CSFB, such offer or sale would adversely affect the sale, placement
or terms of the Securities or the Debt Issuance. As used herein, the terms
"offer" and "sale" have the meanings specified in Section 2(3) of the Securities
Act.
You agree to reimburse CSFB and its affiliates, upon request made from time
to time, for their reasonable fees and expenses incurred in connection with the
transactions contemplated herein and the preparation, execution and delivery of
any related documentation and the activities thereunder or contemplated thereby,
including without limitation due diligence expenses, consultants' fees and
expenses and the reasonable fees and expenses of counsel to CSFB and its
affiliates, whether incurred before or after the execution of this Commitment
Letter. You will also pay all costs and expenses of CSFB (including, without
limitation, reasonable fees and disbursements of counsel) incurred in connection
with the enforcement of any of its rights and remedies hereunder.
You hereby agree to indemnify and hold harmless CSFB, its affiliates and
their respective officers, directors, employees, agents, advisors and
controlling persons (each, an "Indemnified Person") from and against any and all
losses, claims, damages, liabilities and expenses, joint or several, to which
any such Indemnified Person may become subject arising out of or in connection
with this Commitment Letter, the Debt Issuance, the use of the proceeds thereof,
the Transactions or any related transaction or any claim, litigation,
investigation or proceeding relating to any of the foregoing ("Proceedings"),
regardless of whether any Indemnified Person is a party thereto, and to
reimburse each such Indemnified Person for any reasonable legal or other
expenses as they are incurred in connection with investigating or defending any
of the foregoing; provided, however, that the foregoing indemnification will
not, as to any Indemnified Person, apply to losses, claims, damages, liabilities
or expenses to the extent that they are finally judicially determined by a court
of competent jurisdiction not subject to further appeal to have resulted from
the gross negligence or willful misconduct of such Indemnified Person. No
Indemnified Person shall be liable for any indirect or consequential damages in
connection with its obligations hereunder or its activities related to the
Securities.
3
<PAGE> 4
If for any reason the foregoing indemnification is unavailable to any
Indemnified Person or insufficient to hold it harmless, then you shall
contribute to the amount paid or payable to such Indemnified Person as a result
of such loss, claim, damage, liability or expense in such proportion as is
appropriate to reflect not only the relative benefits received by you, on the
one hand, and such Indemnified Person, on the other hand, as well as any
relevant equitable considerations; provided, however, that to the extent
permitted by applicable law, Indemnified Persons shall not be responsible for
amounts in the aggregate which are in excess of all fees received by CSFB in
connection with this engagement. It is hereby agreed that the relative benefits
to you on the one hand and all Indemnified Persons on the other hand shall be
deemed to be in the same proportion as (i) the total value received or proposed
to be received by you pursuant to any sale of Securities and closing of the Debt
Issuance, (in each case, whether or not consummated) bears to (ii) the fee
actually paid to CSFB in connection with such sale and such financing. The
indemnity, reimbursement and contribution obligations of IP hereunder shall be
in addition to any liability which IP may otherwise have to an Indemnified
Person and shall be binding upon and inure to the benefit of any successors,
assigns, heir and personal representatives of IP and any Indemnified Person.
Promptly after receipt by an Indemnified Person of notices of the
commencement of any Proceedings, such Indemnified Person will, if a claim in
respect thereof is to be made against IP, notify IP in writing of the
commencement thereof; provided, however, that the omission so to notify IP will
not relieve it from any liability which it may have hereunder except to the
extent it has been materially prejudiced by such failure. In case any such
Proceedings are brought against any Indemnified Person and it notifies you of
the commencement thereof, IP will be entitled to participate therein, and, to
the extent that they may elect by prior written notice delivered to such
Indemnified Person, to assume the defense thereof, with counsel reasonably
satisfactory to such Indemnified Person; provided, however, that if the
defendants in any such Proceedings include both such Indemnified Person and IP
and such Indemnified Person shall have concluded that there may be legal
defenses available to it which are different from or additional to those
available to IP, such Indemnified Person shall have the right to select separate
counsel to assert such legal defenses and to otherwise participate in the
defense of such Proceedings on behalf of such Indemnified Person. Upon receipt
of notice from IP to such Indemnified Person of its election so to assume the
defense of such Proceedings and approval by such Indemnified Person of counsel,
IP shall not be liable to such Indemnified Person for expenses incurred by such
Indemnified Person in connection with the defense thereof (other than reasonable
costs of investigation) unless (i) such Indemnified Person shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the preceding sentence, (ii) IP shall not have
employed counsel reasonably satisfactory to such Indemnified Person to represent
such Indemnified Person within a reasonable time after notice of commencement of
the Proceedings or (iii) IP shall have authorized in writing the employment of
counsel for such Indemnified Person.
This Commitment Letter is delivered to you on the understanding that
neither this Commitment Letter nor any other agreement between us related to
this Commitment Letter or the Transactions, including the Term Sheet, the
Conditions and the Fee Letter, nor any of their terms or substance shall be
disclosed, directly or indirectly, to any other person except (a) to your
officers, employees, agents and legal advisors who are directly involved in the
consideration of this matter (and then only on a confidential and need-to-know
basis) or (b) as may be required by law or compulsory legal process (in which
case you agree to inform us promptly thereof prior to any such disclosure);
provided, however, that, after your acceptance of this Commitment Letter and the
Fee Letter, you may disclose this Commitment Letter, the Term Sheet and the
Conditions and their terms and substance (but not the Fee Letter or its terms
and substance), on a confidential and need-to-know basis, to the Company and its
directors, officers, employees, agents and legal advisors.
The reimbursement, indemnification, contribution and confidentiality
provisions contained herein and in the Fee Letter shall remain in full force and
effect regardless of whether definitive financing documentation shall be
executed and delivered and notwithstanding the termination of this Commitment
Letter or CSFB's commitment hereunder.
If the foregoing correctly sets forth our agreement, please indicate your
acceptance of the terms hereof and of the Term Sheet, the Conditions and the Fee
Letter by returning to us executed counterparts hereof and of the Fee Letter.
CSFB's commitments and agreements contained herein will expire in the event that
CSFB
4
<PAGE> 5
has not received such executed counterparts by 12:00 Noon (New York time) on May
23, 2000. The engagement of CSFB as Standby Purchaser and Placement Agent with
respect to the Money Market Notes shall terminate on the earlier of (i) the 60th
calendar day after the execution of this Commitment Letter, unless CSFB shall,
in its discretion, agree to an extension and (ii) the date on which the Debt
Issuance is consummated in full, in each case in the event that the Money Market
Notes have not been issued by such date. Before such date, CSFB may terminate
this Commitment Letter if any event occurs or information has become available
that, in its judgment, results or is reasonably likely to result in the failure
to satisfy any condition set forth in Exhibit B. After the purchase (if any) by
CSFB of the Money Market Notes, the engagement of CSFB as Standby Purchaser
shall terminate. Upon consummation by CSFB of the Placement, the engagement of
CSFB as Placement Agent with respect to the Money Market Notes shall terminate.
In any event, your obligations with respect to indemnification, contribution and
confidentiality shall remain in full force and effect, regardless of any
termination of the commitment of CSFB made hereunder.
This Commitment Letter is intended to be solely for the benefit of the
parties hereto and the Indemnified Persons and is not intended to confer any
benefits upon, or create any rights in favor of, any person other than the
parties hereto and the Indemnified Persons. This letter is not intended to
create a fiduciary relationship among the parties hereto. This Commitment Letter
and CSFB's commitment hereunder shall not be assignable by you without the prior
written consent of CSFB (and any purported assignment without such consent shall
be null and void). CSFB's commitment hereunder may be assigned by CSFB to any of
its affiliates. This Commitment Letter, together with the Term Sheet, the
Conditions and the Fee Letter, contain the entire agreement between the parties
relating to the subject matter hereof and supersede all oral statements and
prior writings with respect thereto. This Commitment Letter may not be amended
or waived except by an instrument in writing signed by you and CSFB. This
Commitment Letter may be executed in any number of counterparts, each of which
when so executed and delivered shall be deemed an original and all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page of this Commitment Letter by facsimile
transmission shall be as effective as delivery of a manually executed
counterpart hereof. This Commitment Letter shall be governed by, and construed
in accordance with, the internal laws of the State of New York, without
reference to its choice of law rules.
In rendering such services as set forth in this Commitment Letter, CSFB
shall act as an independent contractor, and any duties of CSFB arising out of
its engagement hereunder shall be owed solely to you. You acknowledge that CSFB
is a securities firm that is engaged in securities trading and brokerage
activities, as well as providing investment banking and financial advisory
services. In the ordinary course of trading and brokerage activities, CSFB and
its affiliates may at any time hold long or short positions, and may trade or
otherwise effect transactions, for their own account or the accounts of
customers, in debt or equity securities of entities that may be involved in the
transactions contemplated hereby. CSFB recognizes its responsibility for
compliance with federal securities laws in connection with such activities. You
further acknowledges that CSFB may employ the services of one or more of its
affiliates in connection with the services to be performed by it hereunder and
may assign and/or delegate any of its rights or responsibilities hereunder to
any of such affiliates.
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ITS RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY
PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE PERFORMANCE OF
SERVICES HEREUNDER.
You irrevocably and unconditionally submit to the exclusive jurisdiction of
any state or federal court sitting in the County of New York over any suit,
action or proceeding arising out of or relating to this Commitment Letter.
Service of any process, summons, notice or document in any such suit, action or
proceeding may be made by registered mail addressed to you or CSFB, as
appropriate, and you waive to the fullest extent permitted under applicable law
any claim that any such suit, action or proceeding has been brought in an
inconvenient forum. A final judgment in any such suit, action or proceeding
brought in any such court may be enforced in any other courts to whose
jurisdiction you are or may be subject, by suit upon such judgment.
5
<PAGE> 6
You acknowledge that CSFB may provide debt financing, equity capital or
other services (including financial advisory services) to parties whose
interests may conflict with yours. Consistent with CSFB's policy to hold in
confidence the affairs of its customers, CSFB will not furnish confidential
information obtained from you to any of its other customers. Furthermore, CSFB
has no obligation to use in connection with the Transactions contemplated
hereby, or to furnish to you, confidential information obtained by CSFB from any
other person.
CSFB is pleased to have been given the opportunity to assist you in
connection with this important financing.
Very truly yours,
CREDIT SUISSE FIRST BOSTON
CORPORATION
By: /s/ PETER S. MILHAUPT
------------------------------------
Name: Peter S. Milhaupt
Title: Managing Director
By: /s/ RICHARD B. CAREY
------------------------------------
Name: Richard B. Carey
Title: Managing Director
Accepted and agreed to as of
the date first written above,
INTERNATIONAL PAPER COMPANY
By: /s/ JULIUS A. WEISS
--------------------------------------------------------
Name: Julius A. Weiss
Title: Assistant Treasurer -- International
6
<PAGE> 7
EXHIBIT A
INTERNATIONAL PAPER COMPANY
FLOATING RATE MONEY MARKET NOTES
SUMMARY OF PRINCIPAL TERMS
<TABLE>
<S> <C>
Issuer: International Paper Company
Issue: Senior unsecured money market notes
Amount: Up to $3,000,000,000 aggregate principal amount
Maturity: Second anniversary of issuance.
Current Ratings: Baa1(with negative outlook)/BBB+(on negative watch for
downgrade) (long term) A-2/P-2 (short term)
Coupon Frequency: Quarterly
Interest: Floating Rate: 3 Month LIBOR plus 125 basis points
Day Count: Actual/360
Issue Price: 100%
Distribution Method: CSFB as sole Placement Agent
Mandatory Redemption: None
Optional Redemption: After one year from issuance and each month thereafter, the
Money Market Notes are callable at par
Transfer Restriction: The Money Market Notes initially will not be registered
under the Securities Act and, until so registered, are being
offered and sold only (1) in the United States to Qualified
Institutional Buyers in reliance upon the exemption from the
Securities Act provided by Rule 144A and (2) in offshore
transactions in compliance with Regulation S under the
Securities Act.
Registration Rights: Pursuant to a Registration Rights Agreement, IP will agree
(i) to use their reasonable best efforts to cause to be
filed, within a period of time to be mutually agreed upon
after the initial issuance of the Money Market Notes, a
registration statement with respect to an offer to exchange
the Money Market Notes for Money Market Notes registered
under the Securities Act with substantially identical terms
(except certain transfer restrictions) and (ii) to use their
reasonable best efforts to cause such registration statement
to be declared effective under the Securities Act within a
period of time to be mutually agreed upon after the initial
issuance. The interest rate on the Money Market Notes is
subject to a 50 basis point increase in the event that (i)
the registration statement is not filed by the agreed upon
period of time after initial issuance, (ii) the registration
statement does not become effective within the agreed upon
period of time after its filing and (iii) the exchange offer
is not consummated within a period of time to be mutually
agreed upon after effectiveness of the registration
statement.
</TABLE>
<PAGE> 8
EXHIBIT B
CONDITIONS
The commitment of Credit Suisse First Boston Corporation ("CSFB") pursuant
to the Standby Purchase Commitment Letter dated May 22, 2000 (as the same may be
amended from time to time in accordance with its terms, the "Commitment
Letter"), between CSFB and International Paper Company ("IP") shall be subject
to the following conditions (capitalized terms used but not defined herein
shall, unless otherwise specified, have the meanings assigned to such terms in
the Commitment Letter):
(i) after the date of the Commitment Letter, no information or other
matter relevant to the Transactions becomes known to CSFB that it in good
faith believes is inconsistent in a material and adverse manner with any
information or other matter relevant to the Transactions disclosed to CSFB
prior to the date of the Commitment Letter;
(ii) there shall not have occurred, exist or become known to CSFB any
event, condition or change in or affecting IP or Acquico that, singly or in
the aggregate, could reasonably be expected to have a Material Adverse
Effect;
(iii) the preparation, execution and delivery of definitive
documentation satisfactory to CSFB in connection with Standby Purchaser and
Placement of the Money Market Notes (including, without limitation, an
underwriting or purchase agreement in CSFB's customary form and an
indenture or fiscal agency agreement, satisfactory to CSFB and its counsel)
and compliance with, and satisfaction of, all terms and conditions to be
performed at or prior to the Debt Issuance set forth therein;
(iv) the sources (including the amount of the Bank Credit Facilities
and cash on hand) and uses of funds necessary to consummate the
Transactions are as set forth in the Commitment Letter and otherwise
satisfactory to CSFB, in its reasonable judgment;
(v) after giving effect to the Transactions (and the sources and uses
necessary to consummate the Transactions), IP and its subsidiaries shall
have on a pro forma basis reasonably sufficient liquidity to conduct their
businesses in the normal course;
(vi) the terms, conditions and structure of the Acquisition (including
the Exchange Offer and the Merger), the Equity Issuance, the Bank Credit
Facilities and any Securities other than the Money Market Notes, including
any documentation therefor, shall be in form and substance reasonably
satisfactory to CSFB. The Transactions shall be in compliance, in all
material respects, with all laws and regulations, including any state
anti-takeover law regulating the Acquisition, or CSFB shall have determined
such to be inapplicable to the Acquisition. CSFB shall have received
copies, certified by IP, of all material filings made with any governmental
authority in connection with the Transactions;
(vii) with respect to the Exchange Offer,
(a) not less than 66 2/3% of the Shares outstanding on a fully
diluted basis (with all options or other securities convertible into or
exercisable or exchangeable for Shares being deemed to have been so
converted, exercised or exchanged) shall have been validly tendered
pursuant to the Exchange Offer and not withdrawn prior to the expiration
of the Exchange Offer and accepted for payment (or exchange) in
accordance with the terms of the Exchange Offer,
(b) CSFB shall be satisfied, in its sole discretion, that the
provisions of Section 912 of the New York Business Corporation Law have
been complied with or are invalid or otherwise inapplicable to the
Exchange Offer, and
(c) CSFB shall be satisfied, in its sole discretion, that no
provision of law or regulation, or of the certificate of incorporation
or by-laws of the Company or of any shareholder agreement or shareholder
rights program of the Company or of any other agreement, shall prevent
or impede the consummation of the Exchange Offer or the Merger (or the
ability of Acquico to vote the Shares in favor of the Merger) in a
manner reasonably satisfactory to CSFB;
<PAGE> 9
(viii) as of the Closing Date, the Transactions shall have been
consummated in accordance with documents in form and substance reasonably
satisfactory to CSFB, which documents shall contain no material terms and
conditions which have not been satisfied and no material term thereof shall
have been amended, supplemented, otherwise modified in any material respect
or waived except with the required consent;
(ix) CSFB shall be reasonably satisfied as to compliance, in all
material respects, by IP and Acquico, any other applicable acquisition
entity and the Company with all applicable regulations;
(x) all material approvals and consents of any governmental
authorities and third parties required in connection with the Transactions
and the other transactions contemplated by the Commitment Letter shall have
been obtained (without the imposition of any materially burdensome or
adverse conditions), and all such approvals and consents shall be in full
force and effect. All applicable waiting periods shall have expired without
any action being taken by any competent authority which restrains, prevents
or imposes materially adverse conditions upon the Transactions;
(xi) customary closing conditions for transactions similar to the Debt
Issuance, including, without limitation, (a) the accuracy in all material
respects of all representations and warranties, (b) the absence of any
defaults, prepayment events or creation of liens under debt instruments or
other agreements (other than under any debt instrument or agreement which
is being repaid and terminated on the Closing Date) as a result of the
Transactions and the other transactions contemplated by the Commitment
Letter, (c) the absence of any change in the capital, corporate and
organizational structure of IP, Acquico or the Company which would be
materially adverse to CSFB in its reasonable determination, (d) compliance
with applicable laws and regulations (including employee health and safety,
margin regulations, and environmental laws), (e) evidence of reasonably
satisfactory insurance, (f) evidence of authority, (g) delivery of
historical and pro forma financial statements, and (h) the receipt by CSFB
of satisfactory legal opinions (including, without limitation, as to no
violation of any margin regulations);
(xii) there shall not exist any threatened or pending action,
proceeding or counterclaim by or before any court or governmental,
administrative or regulatory agency or authority, domestic or foreign, (a)
challenging the consummation of the Transactions or which would restrain,
prevent or impose burdensome conditions on the Transactions, individually
or in the aggregate, or any other transaction contemplated hereunder, which
could reasonably be expected to have a Material Adverse Effect, (b) seeking
to prohibit the ownership or operation by IP or any of its subsidiaries of
all or a material portion of any of their business or assets which could
reasonably be expected to have a Material Adverse Effect, or (c) seeking to
obtain, or having resulted in the entry of, any judgment, order or
injunction that adversely affect the marketability of the Securities, in
CSFB's sole judgement;
(xiii) there shall not have occurred after the date of the Commitment
Letter (a) any general suspension (other than temporary "circuit breakers")
of trading in, or limitation on prices for, securities on any national
securities exchange or in the over-the-counter market in any Applicable
Jurisdiction, (b) the declaration of a banking moratorium or any suspension
of payments in respect of banks in any Applicable Jurisdiction, (c) the
commencement of a war, armed hostilities or other international or national
calamity or emergency, directly or indirectly involving any Applicable
Jurisdiction, which makes it, in the CSFB's reasonable discretion,
impracticable or inadvisable to market the Securities, or (d) in the case
of the foregoing clause (c), a material escalation or worsening thereof,
which makes it, in CSFB's reasonable discretion, impracticable or
inadvisable to market the Securities; and
(xiv) payment of fees and expenses, including reasonable fees and
expenses of the CSFB's counsel.
"Material Adverse Effect" shall mean a material adverse change, or any
condition or event that, in the reasonable and good faith judgment of CSFB,
could reasonably be expected to result in a material adverse change, in (i) the
business, assets, results of operations or financial condition of IP, the
Company and their respective subsidiaries taken as a whole, or (ii) the validity
or enforceability of any of the documents entered into in connection with the
Transactions or the other transactions contemplated by the Commitment Letter or
2
<PAGE> 10
the rights, remedies and benefits available to the parties thereunder or the
ability of IP, Acquico or the Company to consummate the Transactions.
"Applicable Jurisdiction" means the United States and any State thereof.
3
