November __, 2000
FORM OF EXCHANGE AGENT AGREEMENT
The Bank of New York
101 Barclay Street
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
International Paper Company, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), proposes to make an
offer (the "Exchange Offer") to exchange up to $800,000,000 principal amount of
its New Floating Rate Notes due July 8, 2002, $1,200,000,000 principal amount
of its New 8% Notes due July 8, 2003 and $1,000,000,000 principal amount of its
New 8 1/8% Notes due July 8, 2005 (collectively, the "New Notes"), for a like
principal amount of its respective outstanding Floating Rate Notes due July 8,
2002, 8% Notes due July 8, 2003 and 8 1/8% Notes due July 8, 2005 (collectively,
the "Old Notes"). The terms and conditions of the Exchange Offer are set forth
in a Prospectus (the "Prospectus") included in the Company's registration
statement on Form S-4 (File No. 333-48434), as it may be amended from time to
time (the "Registration Statement"), filed with the Securities and Exchange
Commission (the "SEC"), and proposed to be distributed to all record holders of
the Old Notes. The Old Notes and the New Notes are collectively referred to
herein as the "Notes." Capitalized terms used herein and not defined shall have
the respective meanings ascribed to them in the Prospectus or accompanying
Letter of Transmittal.
The Company hereby appoints The Bank of New York to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to The Bank of New York.
The Exchange Offer is expected to be commenced by the Company on or about
November 20, 2000. The Letter of Transmittal accompanying the Prospectus (or in
the case of book entry securities, either the Letter of Transmittal or the
Automated Tender Offer Program ("ATOP") system) is to be used by the holders of
the Old Notes to accept the Exchange Offer and contains instructions with
respect to the delivery of certificates for Old Notes tendered.
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The Exchange Offer shall expire at 5:00 P.M., New York City time, on
December 19, 2000, or on such later date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the
right to extend the Exchange Offer from time to time and may extend the
Exchange Offer by giving oral (confirmed in writing) or written notice to you
before 9:00 A.M., New York City time, on the next business day after the
previously scheduled Expiration Date.
The Company expressly reserves the right, in its sole discretion, to amend
or terminate the Exchange Offer, and not to accept for exchange any Old Notes
not theretofore accepted for exchange. The Company will give oral (confirmed in
writing) or written notice of any amendment, termination or nonacceptance to
you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus captioned "The Exchange Offer," in
the Letter of Transmittal accompanying the Prospectus or as specifically set
forth herein; provided, however, that in no way will your general duty to act
in good faith and without gross negligence or willful misconduct be limited by
the foregoing.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company ("DTC") for purposes of the Exchange Offer within two
business days after the date of the Prospectus, and any financial institution
that is a participant in DTC's systems may, until the Expiration Date, make
book- entry delivery of the Old Notes by causing DTC to transfer such Old Notes
into your account in accordance with DTC's procedures for such transfer. In
every case, however, a Letter of Transmittal (or a manually executed facsimile
thereof) or an agent's message, properly completed and duly executed, with any
required signature guarantees and any other required documents must be
transmitted to and received by you prior to the Expiration Date or the
guaranteed delivery procedures described in the Exchange Offer must be complied
with.
3. You are to examine each of the Letters of Transmittal and certificates
for Old Notes (and confirmation of book-entry transfers of Old Notes into your
account at DTC) and any other documents delivered or mailed to you by or for
holders of the Old Notes, to ascertain whether: (i) the Letters of Transmittal,
certificates and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and that such Book-
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Entry Confirmations are in due and proper form and contain the information
required to be set forth therein, (ii) the Old Notes have otherwise been
properly tendered, (iii) the Old Notes tendered in part are tendered in
principal amounts of $1,000 and integral multiples of $1,000 in excess
thereof and that if any Old Notes are tendered for exchange in part, the
untendered principal amount thereof is $1,000 or any integral multiple of
$1,000 in excess thereof, and (iv) holders have provided their Tax
Identification Number or required certification. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed,
or where Book-Entry Confirmations are not in due and proper form or omit
certain information, or any of the certificates for Old Notes are not in proper
form for transfer or some other irregularity in connection with the acceptance
of the Exchange Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President, any Vice President, the Secretary
or any Assistant Secretary of the Company (such approval, if given orally, to
be confirmed in writing) or any other person designated by such an officer in
writing, you are authorized to waive any irregularities in connection with any
tender of Old Notes pursuant to the Exchange Offer.
5. At the written request of the Company or its counsel, you shall notify
tendering holders of Old Notes in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such termination, you will
return all tendered Old Notes to the persons entitled thereto, at the request
and expense of the Company.
6. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "The Exchange
Offer," and Old Notes shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein. Notwithstanding
the provisions of this paragraph 6, Old Notes which the President, any Vice
President, the Secretary or any Assistant Secretary of the Company or any other
person designated by any such person shall approve as having been properly
tendered shall be considered to be properly tendered (such approval, if given
orally, shall be confirmed in writing). New Notes are to be issued in exchange
for Old Notes pursuant to the Exchange Offer only (i) against deposit with you
prior to the Expiration Date or, in the case of a tender in accordance with the
guaranteed delivery procedures outlined in Instruction 1 of the Letter of
Transmittal, within three New York Stock Exchange trading days after the
Expiration Date of the Exchange Offer, together with executed Letters of
Transmittal and any other documents required by the Exchange Offer or (ii) in
the event that the holder is a
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participant in DTC's system, by the utilization of DTC's ATOP and any evidence
required by the Exchange Offer.
7. You shall advise the Company with respect to any Old Notes received
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
8. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of his or her authority so to act
is submitted; and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including those
regarding any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Notes when so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes
to the Security Registrar for split-up and return any untendered Old Notes to
the holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
9. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and you, on behalf of the Company, will
exchange such Old Notes for New Notes and cause such Old Notes to be canceled.
Delivery of New Notes will be made on behalf of the Company by you at the rate
of $1,000 principal amount of New Notes for each $1,000 principal amount of
the Old Notes tendered promptly after notice (such notice, if given orally, to
be confirmed in writing) of acceptance of said Old Notes by the Company;
provided, however, that in all cases, Old Notes tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Notes (or confirmation of book-entry transfer into
your account at DTC), a properly completed and, except as described in the
section of the Prospectus captioned "The Exchange Offer--Procedures for
Tendering", duly executed Letter of Transmittal (or facsimile thereof) with any
required signature guarantees and any other required documents. Unless
otherwise instructed by the Company, you shall issue New Notes only in
denominations of $1,000 or any integral multiple thereof.
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10. Tenders, pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and
the Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer
may be withdrawn at any time on or prior to the Expiration Date in accordance
with the terms of the Exchange Offer.
11. The Company shall not be required to exchange any Old Notes tendered
if any of the conditions set forth in the Exchange Offer are not met. Notice of
any decision by the Company not to exchange any Old Notes tendered shall be
given (and confirmed in writing) by the Company to you.
12. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender,
the occurrence of certain other events set forth in the Prospectus or
otherwise, you shall as soon as practicable after the expiration or termination
of the Exchange Offer return those certificates for unaccepted Old Notes (or
effect appropriate book-entry transfer), together with any related required
documents and the Letters of Transmittal relating thereto that are in your
possession, to the persons who deposited them (or effected such book-entry
transfer).
13. All certificates for reissued Old Notes, unaccepted Old Notes or for
New Notes (other than those effected by book-entry transfer) shall be forwarded
by first-class certified mail.
14. As soon as practicable after the Expiration Date, you shall arrange
for cancellation of the Old Notes submitted to you or returned by DTC in
connection with ATOP. Such Old Notes shall be cancelled and retired by you as
you are instructed by the Company (or a representative designated by the
Company) in writing.
15. You are not authorized to pay or offer to pay any concessions,
commissions or other solicitation fees to any broker, dealer, commercial bank,
trust company or other nominee or to engage or use any person to solicit
tenders.
16. As Exchange Agent hereunder, you:
(a) shall not be liable for any action or omission to act unless
the same constitutes your own gross negligence, willful misconduct or
bad faith, and in no event shall you be liable to securityholder, the
Company or any third party for special, indirect or consequential
damages, or lost profits, arising in connection with this Agreement.
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(b) shall have no duties or obligations other than those
specifically set forth in the Prospectus, the Letter of Transmittal
or herein or as may be subsequently agreed to in writing by you and
the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or
genuineness of any of the certificates for the Old Notes deposited
with you pursuant to the Exchange Offer, and will not be required to
and will make no representation as to the validity, value or
genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with indemnity
reasonably satisfactory to you;
(e) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by
the proper party or parties;
(f) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to its
due execution and validity and effectiveness of its provisions, but
also as to the truth and accuracy of any information contained
therein, which you shall in good faith believe to be genuine or to
have been signed or represented by a proper person or persons;
(g) may conclusively rely on and shall be protected in acting
upon written or oral instructions from any officer of the company;
(h) may consult with your counsel with respect to any questions
relating to your duties and responsibilities, and the opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you
hereunder in good faith and in accordance with the opinion of such
counsel; and
(i) shall not advise any person tendering Old Notes pursuant to
the Exchange Offer as to whether to tender or refrain from tendering
all or any portion of Old Notes or as to the market value, decline or
appreciation in market value of any Old Notes that may or may not
occur as a result of the Exchange Offer or as to the market value of
the New Notes;
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provided, however, that in no way will your general duty to act in good faith
and without gross negligence or willful misconduct be limited by the foregoing.
17. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as defined in the Prospectus) or such other
forms as may be approved from time to time by the Company to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided, that such information
shall relate only to the procedures for accepting (or withdrawing from) the
Exchange Offer. The Company will furnish you with copies of such documents at
your request.
18. You shall advise by facsimile transmission or telephone, and promptly
thereafter confirm in writing to Barbara L. Smithers, Vice President and
Corporate Secretary of the Company (telephone number (914) 397-1505, facsimile
number (914) 397-1909) and to Rosemarie Loffreddo, Assistant Treasurer of the
Company (telephone number(914) 397-1584, facsimile number (914) 397-1909) and
such other person or persons as the Company may request, daily (and more
frequently during the week immediately preceding the Expiration Date and if
otherwise requested), up to and including the Expiration Date, as to the number
and aggregate principal amount of Old Notes which have been duly tendered
pursuant to the Exchange Offer and the items received by you pursuant to the
Exchange Offer and this Agreement, separately reporting and giving cumulative
totals as to items properly received and items improperly received. In
addition, you will also inform, and cooperate in making available to, the
Company or any such other person or persons upon oral request made from time to
time prior to the Expiration Date of such other information as it or he or she
reasonably requests. Such cooperation shall include, without limitation, the
granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving
tenders, in order to ensure that immediately prior to the Expiration Date the
Company shall have received information in sufficient detail to enable it to
decide whether to extend the Exchange Offer, including the identity of the
holders of Old Notes who have not tendered such Old Notes as of the date such
request was made. You shall prepare a final list of all persons whose tenders
were accepted, the number and aggregate principal amount of Old Notes tendered,
the number and aggregate principal amount of Old Notes accepted and the
identity of any Participating Broker- Dealers (as defined in the Letter of
Transmittal) and the number and aggregate principal amount of New Notes
delivered to each, and deliver said list to the Company.
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19. Letters of Transmittal, Book-Entry Confirmations and Notices of
Guaranteed Delivery received by you shall be preserved by you for a period of
time at least equal to the period of time you preserve other records pertaining
to the transfer of securities, or one year, whichever is longer, and thereafter
shall be delivered by you to the Company. You shall dispose of unused Letters
of Transmittal and other surplus materials, upon consultation with the Company,
in accordance with your customary procedures.
20. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on the Schedule attached hereto.
21. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal. Any inconsistency between this Agreement, on the one hand, and the
Prospectus and the Letter of Transmittal (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and indemnification
of you as Exchange Agent, which shall be controlled by this Agreement.
22. The Company covenants and agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any loss, liability, cost or
expense, including reasonable attorneys' fees and expenses arising out of or in
connection with any act, omission, delay or refusal made by you in reliance
upon any signature, endorsement, assignment, certificate, order, request,
notice, instruction or other instrument or document reasonably believed by you
to be valid, genuine and sufficient and in accepting any tender or effecting
any transfer of Old Notes reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Notes; provided, however, that anything in this
Agreement to the contrary notwithstanding, the Company shall not be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of your gross negligence or willful misconduct. In no case
shall the Company be liable under this indemnity with respect to any claim
against you unless the Company shall be notified by you, by letter or cable or
by facsimile which is confirmed by letter, of the written assertion of a claim
against you or of any other action commenced against you, promptly after you
shall have received any such written assertion or notice of commencement of
action. The Company shall be entitled to participate, at its own expense, in
the defense of any such claim or other action, and, if the company so elects,
the Company may assume the defense of any pending or threatened action against
you in respect of which indemnification may be sought hereunder, in which case
the Company shall not thereafter be responsible for the subsequently incurred
fees and disbursements of legal counsel for you under this paragraph so long as
the Company shall retain counsel reasonably satisfactory to you to defend such
suit; provided, that the Company shall not be entitled to
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assume the defense of any such action if the named parties to such action
include both you and the Company and representation of both parties by the same
legal counsel would, in the written opinion of your counsel, be inappropriate
due to actual or potential conflicting interests between you and the Company.
You understand and agree that the Company shall not be liable under this
paragraph for the fees and expenses of more than one legal counsel for you.
23. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service. The Company understands that you are required, in certain instances,
to deduct thirty-one percent (31%) with respect to interest paid on the New
Notes and proceeds from the sale, exchange, redemption or retirement of the New
Notes from holders who have not supplied their correct Taxpayer Identification
Numbers or required certification. Such funds will be turned over to the
Internal Revenue Service in accordance with applicable regulations.
24. You shall notify the Company of the amount of any transfer taxes
payable in respect of the exchange of Old Notes and, upon receipt of a written
approval from the Company, shall deliver or cause to be delivered, in a timely
manner to each governmental authority to which any transfer taxes are payable
in respect of the exchange of Old Notes, your check in the amount of all
transfer taxes so payable, and the Company shall reimburse you for the amount
of any and all transfer taxes payable in respect of the exchange of Old Notes;
provided, however, that you shall reimburse the Company for amounts refunded to
you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
25. THIS AGREEMENT AND YOUR APPOINTMENT AS EXCHANGE AGENT HEREUNDER SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE,
AND WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
26. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and its successor and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement. Without limitation of the foregoing, the parties hereto
expressly agree that no holder of Old Notes or New Notes shall have any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
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27. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, and all of which taken together shall
constitute one and the same agreement.
28. In case any provision of this Agreement 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.
29. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to
be charged.
30. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company, to:
International Paper Company
Two Manhattanville Road
Purchase, New York 10577
Telephone: (914) 297-1500
Fax No. (914) 397-1505
Attention: The Secretary
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
Telephone: (212) 450-4000
Fax No.: (212) 450-4800
Attention: Francis J. Morison
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If to the Exchange Agent, to:
The Bank of New York,
101 Barclay Street
New York, New York 10286,
Telephone: (800) 438-5473
Fax No.: (212) 815-5915
Attention: Corporate Trust Trustee Administration
31. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, paragraphs 19, 20, 22 and 24 shall survive the termination of this
Agreement. Upon any termination of this Agreement, you shall promptly deliver
to the Company any certificates for New Notes, funds or property then held by
you as Exchange Agent under this Agreement.
32. This Agreement shall be binding and effective as of the date hereof.
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Please acknowledge receipt of this Agreement and confirm the arrangements
herein provided by signing and returning the enclosed copy.
INTERNATIONAL PAPER COMPANY
By:
----------------------------
Name:
Title:
Accepted as of the date
first above written:
THE BANK OF NEW YORK,
as Exchange Agent
By:
---------------------------
Name:
Title:
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FEE SCHEDULE FOR
EXCHANGE AGENT SERVICES
Covers review of the Letter of Transmittal, DTC ATOP voluntary
offering instruction ("VOI"), the Exchange Agent Agreement and other related
documentation, if any, as required by the Exchange Offer; set-up of records and
accounts; distribution of materials; all operational and administrative charges
and time in connection with the review, receipt and processing of Letters of
Transmittal/VOI, processing delivery of guarantees, legal items, withdrawals,
record keeping, and answering securityholders' inquiries pertaining to the
Exchange Offer.
Flat Fee: $____ (plus out of pocket expenses)
NOTE
These fees are also subject to change should circumstances warrant.
Reimbursement for all out-of-pocket expenses, disbursements (including postage,
telex, fax, photocopying and advertising costs), and reasonable fees of counsel
(including their disbursements and expenses) incurred in the performance of our
duties will be added to the billed fees. Once appointed, if the Exchange Offer
should fail to close for reasons beyond our control, we reserve the right to
charge a fee not to exceed the amount of our acceptance fee and we will require
reimbursement in full for our legal fees and expenses and any out-of-pocket
expenses related to our responsibilities under the Exchange Agent Agreement.
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