EXHIBIT 4.4
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3.80% NOTES DUE 2008
5.30% NOTES DUE 2015
SUPPLEMENTAL INDENTURE
between
INTERNATIONAL PAPER COMPANY
and
THE BANK OF NEW YORK
Dated as of March 19, 2003
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms............................................2
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount...............................5
SECTION 2.02. Maturity.......................................................5
SECTION 2.03. Depository.....................................................6
SECTION 2.04. Form; Denomination.............................................6
SECTION 2.05. Restrictive Legends............................................7
SECTION 2.06. Special Transfer Provisions....................................9
SECTION 2.07. Interest......................................................12
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company................................13
SECTION 3.02. No Sinking Fund...............................................15
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture..........15
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note..................................................16
ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances....................36
PAGE
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ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture.....................................36
SECTION 7.02. Trustee Not Responsible for Recitals..........................36
SECTION 7.03. Governing Law.................................................36
SECTION 7.04. Separability..................................................37
SECTION 7.05. Counterparts..................................................37
ii
3.80% NOTES DUE 2008 and 5.30% NOTES DUE 2015 SUPPLEMENTAL INDENTURE,
dated as of March 19, 2003 (the "Supplemental Indenture"), between
International Paper Company, a New York corporation (the "Company"), and The
Bank of New York, as trustee (the "Trustee") under the Indenture, dated as of
April 12, 1999, between the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to the Trustee
to provide, among other things, for the future issuance of the Company's
unsecured Securities to be issued from time to time in one or more series as
might be determined by the Company under the Indenture, in an unlimited
aggregate principal amount which may be authenticated and delivered as provided
in the Indenture;
WHEREAS, Section 9.1 of the Indenture provides for various matters with
respect to any series of Securities issued under the Indenture to be
established in an indenture supplemental to the Indenture;
WHEREAS, Section 9.1(7) of the Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Indenture to establish
the form or terms of Securities of any series as provided by Sections 2.1 and
3.1 of the Indenture;
WHEREAS, the Board of Directors of the Company has duly adopted
resolutions authorizing the Company to execute and deliver this Supplemental
Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company desires to
provide for the establishment of two new series of its Securities to be known
as its 3.80% Notes due 2008 (the "Notes due 2008") and its 5.30% Notes due 2015
(the "Notes due 2015"; and together with the Notes due 2008, the "Notes"), the
form and substance of such Notes and the terms, provisions and conditions
thereof to be set forth as provided in the Indenture and this Supplemental
Indenture;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Supplemental Indenture and all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms, and
(ii) the Notes, when executed by the Company and authenticated and delivered by
the Trustee, the valid obligations of the Company, have been performed, and the
execution and delivery of this Supplemental Indenture has been duly authorized
in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance of the
Notes by the Holders thereof, and for the purpose of setting forth, as provided
in the Indenture, the form and substance of the Notes and the terms, provisions
and conditions thereof, the Company covenants and agrees with the Trustee as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this
Supplemental Indenture unless the definition of such term is amended and
supplemented pursuant to this Supplemental Indenture;
(b) a term defined anywhere in this Supplemental Indenture has the same
meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article of this
Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect
interpretation;
(f) the following terms have the meanings given to them in this Section
1.01(f):
"Additional Interest" shall have the meaning set forth in Section 2.06(d).
"Business Day" shall have the meaning set forth in Section 3.01(b).
"Clearstream" means Clearstream Banking, Societe anonyme, Luxembourg.
"Comparable Treasury Issue" shall have the meaning set forth in Section
3.01(b).
"Comparable Treasury Price" shall have the meaning set forth in Section
3.01(b).
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"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
system.
"Exchange Offer" means the exchange offer by the Company of Exchange Notes
for Initial Notes pursuant to the Registration Rights Agreement.
"Exchange Offer Registration Statement" means a registration statement
relating to an Exchange Offer on an appropriate form and all amendments and
supplements to such registration statement, in each case including the
prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchange Notes" means the debt securities of the Company to be offered to
Holders in exchange for Initial Notes of the applicable series pursuant to the
Exchange Offer or otherwise pursuant to a Registration of Exchange Notes
containing terms identical to the Notes for which they are exchanged (except
that (i) interest thereon shall accrue from the last date on which interest was
paid on the Notes or, if no such interest has been paid, from the date of
issuance of the Notes and (ii) the Exchange Notes will contain the alternative
fifth paragraph appearing on the reverse of the Notes in the form recited above
and will not contain terms with respect to transfer restrictions).
"Global Note" shall have the meaning set forth in Section 2.03(a).
"Independent Investment Banker" shall have the meaning set forth in
Section 3.01(b).
"Initial Notes" means the Notes of each series issued under this Indenture
which are not Exchange Notes.
"Note" or "Notes" means any Security or Securities, as the case may be,
authenticated and delivered under this Supplemental Indenture. For all purposes
of this Supplemental Indenture, the term "Notes" shall include the Initial
Notes of each series and any Exchange Notes to be issued and exchanged for any
Initial Notes of each series pursuant to the Registration Rights Agreement and
this Supplemental Indenture and, for purposes of this Supplemental Indenture,
all Initial Notes and Exchange Notes of each applicable series shall vote
together as one series of Notes under this Supplemental Indenture.
"Notes due 2008" shall have the meaning set forth in the recitals above.
"Notes due 2015" shall have the meaning set forth in the recitals above.
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"Offshore Global Note" shall have the meaning set forth in Section 2.04(a)
hereof.
"Private Placement Legend" means the legend initially set forth on the
Notes in the form set forth in 2.05(a).
"Reference Treasury Dealer" shall have the meaning set forth in Section
3.01(b).
"Reference Treasury Dealer Quotations" shall have the meaning set forth in
Section 3.01(b).
"Registration" means a registered exchange offer for the Notes by the
Company or other registration of the Notes under the Securities Act pursuant to
and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of March 19, 2003, among the Company and the Purchasers and certain
permitted assigns specified therein.
"Registration Statement" means the Registration Statement pursuant to and
as defined in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Certificate" means a certificate substantially in the form
of Exhibit B to the form of Note contained in Section 5.01 hereof.
"Remaining Life" shall have the meaning set forth in Section 3.01(b).
"Restricted Legend" means the legend set forth in Section 2.05 hereof.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Certificate" means (i) a certificate substantially in the form
of Exhibit A to the form of Note contained in Section 5.01 hereof or (ii) a
written certification addressed to the Company and the Trustee to the effect
that the person making such certification (x) is acquiring such Note (or
beneficial interest) for its own account or one or more accounts with respect
to which it exercises sole investment discretion and that it and each such
account is a qualified institutional buyer within the meaning of Rule 144A, (y)
is aware that the transfer to it or
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exchange, as applicable, is being made in reliance upon the exemption from the
provisions of Section 5 of the Securities Act provided by Rule 144A and (z)
acknowledges that it has received such information regarding the Company as it
has requested pursuant to Rule 144A(d)(4) or has determined not to request such
information.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity Date" has the meaning set forth in Section 2.02.
"Treasury Rate" shall have the meaning set forth in Section 3.01(b).
"U.S. Global Note" shall have the meaning set forth in Section 2.04(a)
hereof.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Designation and Principal Amount.
(a) 3.80% Notes due 2008
There is hereby authorized a series of Securities designated the "3.80%
Notes due 2008" initially offered in the aggregate principal amount of
$300,000,000 which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Notes pursuant to Section 3.3 of
the Indenture.
(b) 5.30% Notes due 2015
There is hereby authorized a series of Securities designated the "5.30%
Notes due 2015" initially offered in the aggregate principal amount of
$700,000,000 which amount shall be as set forth in any written order of the
Company for the authentication and delivery of Notes pursuant to Section 3.3 of
the Indenture.
SECTION 2.02. Maturity.
(a) The Notes due 2008 will mature on April 1, 2008, and the Notes due
2015 will mature on April 1, 2015 (respectively, the "Stated Maturity Date").
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SECTION 2.03. Depository. The Depository Trust Company shall be the
initial Depository, until a successor shall have been appointed and become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Depository" shall mean or include such successor.
SECTION 2.04. Form; Denomination.
(a) The Notes due 2008 and the Notes due 2015 shall each be issued
initially in the form of one or more permanent restricted global Notes in
registered form, substantially in the form recited below, deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as herein provided; provided that Exchange Notes
(i) contain the alternative fifth paragraph appearing on the reverse of the
Notes in the form recited below and (ii) shall not contain terms with respect
to transfer restrictions.
Initial Notes offered and sold in reliance on Rule 144A shall be issued
initially in the form of one or more permanent global Notes in registered form,
substantially in the form set forth in Section 5.01 with such applicable
legends as are provided for in Section 2.05 (the "U.S. Global Notes"),
registered in the name of the nominee of the Depository, deposited with the
Trustee, as custodian for the Depository, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the U.S. Global Notes may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for the
Depository or its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in reliance on
Regulation S shall be issued initially in the form of one or more permanent
global Notes in registered form, substantially in the form set forth in Section
5.01 with such applicable legends as are provided for in Section 2.05 (the
"Offshore Global Notes"), registered in the name of the nominee of the
Depository, deposited with the Trustee, as custodian for the Depository, duly
executed by the Company and authenticated by the Trustee, for credit to the
respective accounts at the Depository or the depositories for Euroclear or for
Clearstream, as hereinafter provided. The aggregate principal amount of the
Offshore Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the Depository
or its nominee, as hereinafter provided.
The U.S. Global Notes and the Offshore Global Notes are collectively
referred to herein as the "Global Notes."
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(b) The Notes shall be issuable in denominations provided for in the form
of Note recited below. The Notes shall be numbered, lettered, or otherwise
distinguished in such manner or in accordance with such plans as the officers
of the Company executing the same may determine with the approval of the
Trustee.
SECTION 2.05. Restrictive Legends. (a) Except as otherwise provided in
paragraph (c), each Global Note shall bear the following legend on the face
thereof:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY
(I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR (V) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(II) THROUGH (V) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT IT (1) IS A QUALIFIED
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INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
AND IS ACQUIRING THE NOTES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ONE OR
MORE QUALIFIED INSTITUTIONAL BUYERS AND THAT IT EXERCISES SOLE INVESTMENT
DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, (2) ACQUIRED SUCH SECURITY IN A
TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT OR (3)
IS NOT A U.S. PERSON AND IS PURCHASING THE NOTES IN AN OFFSHORE TRANSACTION
PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV)
ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN
ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS
MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
(b) (i) Each Global Note shall also bear the following legend on the face
thereof:
THIS NOTE IS A GLOBAL NOTE 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 NOTE IS EXCHANGEABLE FOR NOTES 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 NOTE (OTHER
THAN A TRANSFER OF THIS NOTE 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 LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST
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COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE THEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(ii) In addition, each Offshore Global Note shall bear the following
legend on the face thereof until at least the 41st day after the Closing Date:
ANY OFFER, SALE, TRANSFER, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION OF
THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WITHIN FORTY DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THIS SECURITY OR THE DATE OF
CLOSING OF SUCH OFFERING MAY BE MADE ONLY IN COMPLIANCE WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT.
(c) (i) If the Company determines (upon the advice of counsel and such
other certifications and evidence as the Company may reasonably require) that
any Note is eligible for resale pursuant to Rule 144(k) under the Securities
Act (or a successor provision) and that the Restricted Legend is no longer
necessary or appropriate in order to ensure that subsequent transfers of such
Note (or a beneficial interest therein) are effected in compliance with the
Securities Act, or
(ii) after an Initial Note is (x) sold pursuant to an effective
registration statement under the Securities Act, pursuant to the Registration
Rights Agreement or otherwise, or (y) exchanged for an Exchange Note, the
Company may instruct the Trustee to cancel such Note and issue to the Holder
thereof (or to its transferee) a new Note of like tenor and amount, registered
in the name of the Holder thereof (or its transferee), that does not bear the
Restricted Legend, and the Trustee will comply with such instruction.
SECTION 2.06. Special Transfer Provisions. Unless and until an Initial
Note is exchanged for an Exchange Note in connection with an effective
Registration pursuant to the Registration Rights Agreement, the following
provisions shall apply:
(a) The transfer or exchange of any Note (or a beneficial interest
therein) that bears the Restricted Legend may only be made in compliance with
the provisions of the Restricted Legend.
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(b) The Trustee will retain copies of all certificates, opinions and other
documents received in connection with the transfer or exchange of a Note (or a
beneficial interest therein), and the Company will have the right to inspect
and make copies thereof at any reasonable time upon written notice to the
Trustee.
(c) The transfer or exchange of a beneficial interest in an Offshore
Global Note for a beneficial interest in a U.S. Global Note may only be made
upon receipt by the Trustee of a duly completed Rule 144A Certificate.
(d) The transfer or exchange of a beneficial interest in a U.S. Global
Note for a beneficial interest in an Offshore Global Note may only be made upon
receipt by the Trustee of a duly completed Registration S Certificate.
(e) By its acceptance of any Note bearing the Private Placement Legend,
each Holder of such a Note acknowledges the restrictions on transfer of such
Note set forth in this Supplemental Indenture and in the Private Placement
Legend and agrees that it will transfer such Note only as provided in this
Supplemental Indenture. The Registrar shall not register a transfer of any Note
unless such transfer complies with the restrictions on transfer of such Note
set forth in this Supplemental Indenture. In connection with any transfer of
Notes, each Holder agrees by its acceptance of the Notes to furnish the
Registrar or the Company such certifications, legal opinions or other
information as either of them may reasonably require to confirm that such
transfer is being made pursuant to an exemption from, or a transaction not
subject to, the registration requirements of the Securities Act; provided that
the Registrar shall not be required to determine (but may rely on a
determination made by the Company with respect to) the sufficiency of any such
certifications, legal opinions or other information.
(f) During the 40-day "distribution compliance period" as defined in
Regulation S, beneficial interests in an Offshore Global Note may be held
through the Depository only through Euroclear and Clearstream, and their
respective direct and indirect participants.
The Registrar shall retain copies of all letters, notices and other
written communications received pursuant to Section 3.5 of the Indenture or
this Section 2.05. The Company shall have the right to inspect and make copies
of all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Supplemental Indenture or under applicable law with respect to any transfer of
any interest in any Note (including any transfers between or among members of,
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or participants in, the Depository or beneficial owners of interests in any
Global Note) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Supplemental Indenture, and to
examine the same to determine substantial compliance as to form with the
express requirements hereof.
(g) A Global Note may be transferred, in whole but not in part, only to
another nominee of the Depository, or to a successor Depository selected or
approved by the Company or to a nominee of such successor Depository.
(h) If a beneficial interest in a Global Note is transferred or exchanged
for a beneficial interest in another Global Note, the Trustee will (x) record a
decrease in the principal amount of the Global Note being transferred or
exchanged equal to the principal amount of such transfer or exchange and (y)
record a like increase in the principal amount of the other Global Note. Any
beneficial interest in one Global Note that is transferred to a Person who
takes delivery in the form of an interest in another Global Note, or exchanged
for an interest in another Global Note, will, upon transfer or exchange, cease
to be an interest in such Global Note and become an interest in the other
Global Note and, accordingly, will thereafter be subject to all transfer and
exchange restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Note for as long as it remains such an interest.
(i) If at any time the Depository notifies the Company that it is
unwilling or unable to continue as Depository or if at any time the Depository
for such series shall no longer be registered or in good standing under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, and a successor Depository for such series is not appointed by the
Company within 90 days after the Company receives such notice or becomes aware
of such condition, as the case may be, the Company will execute, and, subject
to Article III of the Indenture, the Trustee, upon written notice from the
Company, will authenticate and make available for delivery the Notes in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global Note
in exchange for the Global Note. In addition, the Company may at any time
determine that the Notes shall no longer be represented by a Global Note. In
such event the Company will execute, and subject to Section 3.5 of the
Indenture, the Trustee, upon receipt of an Officers' Certificate evidencing
such determination by the Company, will authenticate and deliver the Notes in
definitive registered form without coupons, in authorized denominations, and in
an aggregate principal amount equal to the principal amount of the Global Note
in exchange for the Global Note. Upon the exchange of the Global Note for such
Notes in definitive registered form without coupons, in authorized
denominations, the Global Note shall be cancelled by the Trustee.
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Such Notes in definitive registered form issued in exchange for the Global Note
shall be registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Notes
to the Depository for delivery to the Persons in whose names such Notes are so
registered.
SECTION 2.07. Interest.
(a) The Notes due 2008 will bear interest at the rate of 3.80% per annum
and the Notes due 2015 will bear interest at the rate of 5.30% per annum
(respectively, the "Coupon Rate") from the original date of issuance of each
series until the principal thereof becomes due and payable, and on any overdue
principal and (to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest at the applicable Coupon
Rate, compounded semi-annually, payable semi-annually in arrears on April 1 and
October 1 of each year (each, an "Interest Payment Date") commencing on October
1, 2003, to the Person in whose name such Note or any predecessor Note is
registered, at the close of business on the regular record date for such
interest installment, which shall be the close of business on the March 15 or
September 15 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
(b) The amount of interest payable for any period less than a full
interest period will be computed on the basis of a 360-day year of twelve
30-day months and the actual days elapsed in a partial month in such period. In
the event that any date on which interest is payable on the Notes is not a
Business Day, then payment of the interest payable on such date will be made on
the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and effect as
if made on the date such payment was originally payable, 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.
(c) Accrued interest that is not paid on the applicable Interest Payment
Date will bear additional interest on the amount thereof at the applicable
Coupon Rate, compounded semi-annually and computed on the basis of a 360-day
year of twelve 30-day months and the actual days elapsed in a partial month in
such period. The amount of additional interest payable for any full interest
period will be computed by dividing the applicable Coupon Rate by two.
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(d) In the event that a Registration Default (as defined in the
Registration Rights Agreement) occurs, the Company shall pay additional
interest (in addition to the interest otherwise due herein) ("Additional
Interest") to the Holder during the period immediately following the occurrence
of any such Registration Default in an amount equal to 0.25% per annum
(regardless of the number of Registration Defaults) from and including the date
on which any such Registration Default shall occur (subject to the terms of the
Registration Rights Agreement) to but excluding the date on which all such
Registration Defaults have been cured. The Company shall pay amounts due in
respect of Additional Interest on each Interest Payment Date (or, if the
Company shall default in the payment of interest on any Interest Payment Date,
on the date such interest is otherwise paid as provided in the Indenture).
There shall also be payable in respect of the Note all Additional Interest
that may have accrued on such Note for which the Note was exchanged (as defined
in such Note) pursuant to the Exchange Offer, such Additional Interest to be
calculated in accordance with the terms of such Note and payable at the same
time and in the same manner as periodic interest on such Note.
ARTICLE 3
REDEMPTION OF THE NOTES
SECTION 3.01. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.01(b) and to the provisions of
Article XI of the Indenture, except as otherwise may be specified in this
Supplemental Indenture, the Company shall have the right to redeem the Notes,
in whole or in part, at any time or from time to time, at a redemption price
(the "Optional Redemption Price") equal to the greater of:
(i) 100% of the principal amount plus accrued and unpaid interest to
the Redemption Date; or
(ii) the sum of the present values of the remaining scheduled
payments of principal and interest (exclusive of interest accrued to the
Redemption Date) discounted to the Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months at (A) the
Treasury Rate plus 25 basis points for the Notes due 2008 or (B) the
Treasury Rate plus 30 basis points for the Notes due 2015, plus, in each
case, accrued interest on the principal amount being redeemed to the
Redemption Date.
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Any redemption pursuant to the preceding paragraph will be made upon not
less than 30 nor more than 60 days' prior notice before the Redemption Date to
each Holder of the applicable series of Notes, at the Optional Redemption
Price. If the Notes of the applicable series are only partially redeemed
pursuant to this Section 3.01(a), the Notes of such series will be redeemed pro
rata or by lot or by any other method utilized by the Trustee; provided, that
if at the time of redemption the Notes of such series are registered as a
Global Note, the Depository shall determine, in accordance with its procedures,
the principal amount of the Notes of such series held by each Holder of Notes
to be redeemed. The Optional Redemption Price shall be paid prior to 12:00
noon, New York time, on the date of such redemption or at such earlier time as
the Company determines provided that the Company shall deposit with the Trustee
an amount sufficient to pay the Optional Redemption Price by 10:00 a.m., New
York time, on the date such Optional Redemption Price is to be paid.
(b) The following terms have the meanings given to them in this Section
3.01(b).
"Business Day" means any calendar day that is not a Saturday, Sunday or
legal holiday in New York, New York and on which commercial banks are open for
business in New York, New York.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term ("Remaining Life") of the applicable series of Notes to be
redeemed 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 Notes of such
series.
"Comparable Treasury Price" means, with respect to any Redemption Date,
(A) the average of four Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such Reference Treasury
Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer
than four such Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Independent Investment Banker" means any one of the Reference Treasury
Dealers or an independent investment banking institution of national standing
appointed by the Company.
"Reference Treasury Dealer" means (i) each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Deutsche Bank Securities Inc., ▇.▇.
▇▇▇▇▇▇ Securities Inc. and UBS Warburg LLC and their respective successors,
14
provided, however, that if any of the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), we will substitute therefor another Primary Treasury Dealer and (ii)
any other Primary Treasury Dealer selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to the
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Independent Investment Banker, 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 Independent Investment Banker by the
Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such
Redemption Date.
"Treasury Rate" means, with respect to any Redemption Date, (i) the yield,
under the heading which represents the average for the immediately preceding
week, appearing in the most recently published statistical release designated
"H.15 (519)" or any successor publication which is published weekly by the
Board of Governors of the Federal Reserve System and which establishes yields
on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Remaining Life, yields for the two published
maturities most closely corresponding to the Comparable Treasury Issue shall be
determined and the Treasury Rate shall be interpolated or extrapolated from
such yields on a straight line basis, rounding to the nearest month) or (ii) if
such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
SECTION 3.02. No Sinking Fund.
The Notes are not entitled to the benefit of any sinking fund.
15
ARTICLE 4
MODIFICATION
SECTION 4.01. Modification of Indenture and Supplemental Indenture.
Section 9.2 of the Indenture, as it relates to both the 3.80% Notes due
2008 and the 5.30% Notes due 2015, is hereby modified so that the reference to
"not less than 66-2/3%" shall read "not less than a majority", except in the
case of increasing (or reopening) the principal amount, no consent of Holders
will be required.
ARTICLE 5
FORM OF NOTE
SECTION 5.01. Form of Note.
The Notes and the Trustee's Certificate of Authentication to be endorsed
thereon are to be substantially in the following forms:
(FORM OF FACE OF NOTE)
[IF THE NOTE IS TO BE A GLOBAL NOTE, INSERT - THIS NOTE IS A GLOBAL NOTE
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 NOTE IS
EXCHANGEABLE FOR NOTES 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 NOTE (OTHER THAN A TRANSFER OF THIS NOTE 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 LIMITED CIRCUMSTANCES.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY A PERSON IS WRONGFUL
16
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[UNLESS AND UNTIL A SECURITY IS EXCHANGED FOR AN EXCHANGE NOTE OR SOLD IN
CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT THE OFFSHORE GLOBAL NOTES SHALL BEAR THE
FOLLOWING LEGEND ON THE FACE THEREOF UNTIL AT LEAST THE 41ST DAY AFTER THE
CLOSING DATE.
ANY OFFER, SALE, TRANSFER, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION OF
THIS SECURITY OR ANY INTEREST OR PARTICIPATION HEREIN WITHIN FORTY DAYS AFTER
THE LATER OF THE COMMENCEMENT OF THE OFFERING OF THIS SECURITY OR THE DATE OF
CLOSING OF SUCH OFFERING MAY BE MADE ONLY IN COMPLIANCE WITH RULE 903 OR RULE
904 OF REGULATION S UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144A UNDER THE
SECURITIES ACT.]
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT
THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF INTERNATIONAL PAPER
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD OR OTHERWISE TRANSFERRED, ONLY
(I) TO INTERNATIONAL PAPER, (II) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE
17
SECURITIES ACT, OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH OF CASES (II) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE
HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF
THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER
REPRESENTS THAT IT (1) IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND IS ACQUIRING THE NOTES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF ONE OR MORE QUALIFIED INSTITUTIONAL BUYERS AND
THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT,
(2) ACQUIRED SUCH SECURITY IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION
UNDER THE SECURITIES ACT OR (3) IS NOT A U.S. PERSON AND IS PURCHASING THE
NOTES IN AN OFFSHORE TRANSACTION PURSUANT TO REGULATION S.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (A)(IV)
ABOVE, THE COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL
OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN
ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH
THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS
MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
No.________________________ CUSIP No. o
INTERNATIONAL PAPER COMPANY
o% NOTES DUE 20__
INTERNATIONAL PAPER COMPANY, a New York corporation (the "Company", which
term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to_____________ or
registered assigns, the principal sum of___________ Dollars
18
($___________) on o, 20__, and to pay interest on said principal sum from the
date of original issuance, or from the most recent interest payment date to
which interest has been paid or duly provided for, semi-annually in arrears on
o and o of each year (each such date, an "Interest Payment Date") commencing o,
2003, at the rate of o% per annum until the principal hereof shall have become
due and payable, and on any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at the same rate
per annum compounded semi-annually. The amount of interest payable for any
period less than a full interest period will be computed on the basis of a
360-day year of twelve 30-day months and the actual days elapsed in a partial
month in such period. In the event that any date on which interest is payable
on the Notes is not a Business Day, then payment of the interest payable on
such date will be made on the next succeeding day which is a Business Day (and
without any interest or other payment in respect of any such delay) with the
same force and effect as if made on the date such payment was originally
payable, 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. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Note (or one or more Predecessor Securities, as defined in
said Indenture) is registered at the close of business on the regular record
date for such interest installment, which shall be the close of business on the
o or o (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date. Any such interest installment not
punctually paid or duly provided for shall forthwith cease to be payable to the
registered Holders on such regular record date and may be paid to the Person in
whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a special record date to be fixed by the Trustee for
the payment of such defaulted interest, notice whereof shall be given to the
registered Holders of this series of Notes not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Notes may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture. The principal of (and premium, if
any) and the interest on this Note shall be payable at the office or agency of
the Trustee maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for payment of
public and private debts.
Accrued interest that is not paid on the applicable Interest Payment Date
will bear additional interest on the amount thereof at the Coupon Rate,
compounded semi-annually and computed on the basis of a 360-day year of
19
twelve 30-day months and the actual days elapsed in a partial month in such
period.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by or on behalf
of the Trustee.
The provisions of this Note are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
20
IN WITNESS WHEREOF, the Company has caused this instrument to be executed
on this __ th day of ________, ____.
INTERNATIONAL PAPER COMPANY
By:
--------------------------------
Name:
Title:
Attest:
By:
----------------------------------
Name:
Title:
21
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
Dated_____________________
The Bank of New York,
as Trustee
By:________________________
Authorized Signatory
(FORM OF REVERSE OF NOTE)
This Note is one of a duly authorized series of Notes of the Company
(herein sometimes referred to as the "Notes"), specified in the Indenture, all
issued or to be issued in one or more series under and pursuant to an Indenture
dated as of April 12, 1999, duly executed and delivered between the Company and
The Bank of New York as Trustee (the "Trustee"), as supplemented by the 3.80%
Notes due 2008 and 5.30% Notes due 2015 Supplemental Indenture dated as of
March 19, 2003, between the Company and the Trustee (the Indenture, as so
supplemented, the "Indenture"), to which Indenture and all Indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Notes. By the terms of the
Indenture, the Notes are issuable in series that may vary as to amount, date of
maturity, rate of interest and in other respects as provided in the Indenture.
This series of Notes is initially offered in aggregate principal amount as
specified in said Supplemental Indenture.
The Company shall have the right to redeem this Note at the option of the
Company, without premium or penalty, in whole or in part (an "Optional
Redemption"), at a redemption price (the "Optional Redemption Price") equal to
the greater of:
(i) 100% of the principal amount plus accrued and unpaid interest to the
Redemption Date; or
(ii) the sum of the present values of the remaining scheduled payments of
principal and interest (exclusive of interest accrued to the Redemption Date)
22
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus o basis
points plus accrued interest on the principal amount being redeemed to the
Redemption Date.
Any redemption pursuant to the preceding paragraph will be made upon not
less than 30 nor more than 60 days prior notice before the Redemption Date to
the Holders, at the Optional Redemption Price. If the Notes are only partially
redeemed by the Company pursuant to an Optional Redemption, the Notes will be
redeemed pro rata or by lot or by any other method utilized by the Trustee;
provided that if at the time of redemption the Notes are registered as a Global
Note, the Depository shall determine, in accordance with its procedures, the
principal amount of such Notes held by each Holder of Notes to be redeemed.
In the event of redemption of this Note in part only, a new Note or Notes
of this series for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof.
[In the event that a Registration Default (as defined in the Registration
Rights Agreement) occurs, then the Company shall pay additional interest (in
addition to the interest otherwise due hereon) ("Additional Interest") to the
Holder during the period immediately following the occurrence of any such
Registration Default in an amount equal to 0.25% per annum (regardless of the
number of Registration Defaults) from and including the date on which any such
Registration Default shall occur (subject to the terms of the Registration
Rights Agreement) to but excluding the date on which all such Registration
Defaults have been cured. The Company shall pay amounts due in respect of
Additional Interest on each Interest Payment Date (or, if the Company shall
default in the payment of interest on any Interest Payment Date, on the date
such interest is otherwise paid as provided in the Indenture).]1
[There shall also be payable in respect of this Note all Additional
Interest that may have accrued on the Note for which this Note was exchanged
(as defined in such Note) pursuant to the Exchange Offer, such Additional
Interest to be calculated in accordance with the terms of such Note and payable
at the same time and in the same manner as periodic interest on this Note.]2
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and
--------
1 To be included in Initial Notes not Exchange Notes.
2 To be included in Exchange Notes.
23
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Notes of each series affected at the time outstanding,
as defined in the Indenture, to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the indenture or of any supplemental indenture or of modifying in
any manner the rights of the Holders of the Notes; provided, however, that no
such supplemental indenture shall (i) extend the fixed maturity of any Notes of
any series, or reduce the principal amount thereof, or reduce the rate or
extend the time of payment of interest thereon, or reduce any premium payable
upon the redemption thereof, without the consent of the Holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holders of each Note then outstanding and affected thereby. The
Indenture also contains provisions permitting the Holders of a majority in
aggregate principal amount of the Notes of any series at the time outstanding
affected thereby, on behalf of all of the Holders of the Notes of such series,
to waive any past default in the performance of any of the covenants contained
in the Indenture, or established pursuant to the Indenture with respect to such
series, and its consequences, except a default in the payment of the principal
of or premium, if any, or interest on any of the Notes of such series. Any such
consent or waiver by the registered Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and of any Note issued in
exchange therefor or in place hereof (whether by registration of transfer or
otherwise), irrespective of whether or not any notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note at the time and place and at the rate and in the money
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, this Note is transferable by the registered Holder hereof on the
Security Register of the Company, upon surrender of this Note for registration
of transfer at the office or agency of the Trustee in the City and State of New
York accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company or the Trustee duly executed by the registered
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new
24
Notes of authorized denominations and for the same aggregate principal amount
and series will be issued to the designated transferee or transferees. No
service charge will be made for any such transfer, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, any paying agent and the Security Registrar may deem and
treat the registered Holder hereof as the absolute owner hereof (whether or not
this Note shall be overdue and notwithstanding any notice of ownership or
writing hereon made by anyone other than the Security Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Security
Registrar shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, premium, if
any, or the interest on this Note, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. This
Global Note is exchangeable for Notes in definitive form only under certain
limited circumstances set forth in the Indenture. As provided in the Indenture
and subject to certain limitations herein and therein set forth, Notes of this
series so issued are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by
the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND
THE NOTES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
25
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
_______________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________ attorney to transfer said Note on the books of
the Company with full power of substitution in the premises.
By: _________________________
Date:_________________________
26
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN EXCHANGE NOTES]
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of an effective Registration or (ii) two
years (or such lesser period as may be provided in any amendment to Rule 144(k)
under the Securities Act) after the later of the original issuance of this Note
or the last date on which this Note was held by the Company or an Affiliate of
the Company, the undersigned confirms that without utilizing any general
solicitation or general advertising that this Note is being transferred in
accordance with its terms:
[Check One]
(1) [ ] to the Company; or
(2) [ ] pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) [ ] in the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities
Act of 1933) that purchases for its own account or for
the account of a qualified institutional buyer to whom
notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of
1933;
(4) [ ] outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities
Act of 1933; or
(5) [ ] pursuant to the exemption from registration provided by
Rule 144 under the Securities Act of 1933.
27
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than
the registered holder thereof, provided, however, that if box (4) is checked,
the Trustee may require, prior to registering any such transfer of the Notes,
such legal opinions, certifications and other information as the Company has
reasonably requested to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
______________________________
Signature
Signature Guarantee:
___________________________________ ______________________________
Signature must be guaranteed Signature
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent 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 and Exchange Act of 1934, as amended.
28
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
of 1933, and is aware that the sale to it is being made in reliance on Rule
144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has
determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Dated:_____________ ____________________________________
NOTICE: To be executed by an executive
officer
29
[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
Signature of
Amount of decrease in Amount of increase in Principal Amount of this authorized signatory of
Date of Principal Amount of Principal Amount of Global Note following such Trustee or Securities
Exchange this Global Note this Global Note decrease or increase Custodian
-------- --------------------- --------------------- -------------------------- -----------------------
30
EXHIBIT A
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Rule 144A
__________, 200_
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ - ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Re: International Paper Company (the "Company") o
Notes due o (the "Notes")
Dear Sirs:
This Certificate relates to:
[CHECK A OR B AS APPLICABLE.]
[ ] A. Our proposed purchase of $____ principal amount of Notes issued
under the Indenture.
[ ] B. Our proposed exchange of $____ principal amount of Notes issued
under the Indenture for an equal principal amount of Notes to be
held by us.
We and, if applicable, each account for which we are acting in the
aggregate owned and invested more than $100,000,000 in securities of issuers
that are not affiliated with us (or such accounts, if applicable), as of
__________, 200_, which is a date on or since close of our most recent fiscal
year. We and, if applicable, each account for which we are acting, are a
qualified institutional buyer within the meaning of Rule 144A ("Rule 144A")
under the Securities Act of 1933, as amended (the "Securities Act"). If we are
acting on behalf of an account, we exercise sole investment discretion with
respect to such account. We are aware that the transfer of Notes to us, or such
exchange, as applicable, is being made in reliance upon the exemption from the
provisions of Section 5 of the Securities Act
31
provided by Rule 144A. Prior to the date of this Certificate we have received
such information regarding the Company as we have requested pursuant to Rule
144A(d)(4) or have determined not to request such information.
You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of ▇▇▇▇▇▇]
By:_______________________
Authorized Signature
32
EXHIBIT B
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
__________, 200_
The Bank of New York
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Attention: Corporate Trust Administration
Re: International Paper Company (the "Company") o Notes
due o (the "Notes")
Dear Sirs:
Terms are used in this Certificate as used in Regulation S ("Regulation
S") under the Securities Act of 1933, as amended (the "Securities Act"), except
as otherwise stated herein.
[CHECK A OR B AS APPLICABLE.]
[ ]A. This Certificate relates to our proposed transfer of $____ principal
amount of Notes issued under the Indenture. We hereby certify as follows:
1. The offer and sale of the Notes was not and will not be made to a
person in the United States (unless such person is excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(vi) or the
account held by it for which it is acting is excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3)) and such offer and sale
was not and will not be specifically targeted at an identifiable
group of U.S. citizens abroad.
2. Unless the circumstances described in the parenthetical in paragraph
1 above are applicable, either (a) at the time the buy order was
originated, the buyer was outside the United States or we and any
person acting on our behalf reasonably believed that the
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buyer was outside the United States or (b) the transaction was
executed in, on or through the facilities of a designated offshore
securities market, and neither we nor any person acting on our behalf
knows that the transaction was pre-arranged with a buyer in the
United States.
3. Neither we, any of our affiliates, nor any person acting on our or
their behalf has made any directed selling efforts in the United
States with respect to the Notes.
4. The proposed transfer of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
5. If we are a dealer or a person receiving a selling concession, fee or
other remuneration in respect of the Notes, and the proposed transfer
takes place during the Restricted Period (as defined in the
Indenture), or we are an officer or director of the Company or an
Initial Purchaser (as defined in the Indenture), we certify that the
proposed transfer is being made in accordance with the provisions of
Rule 904(b) of Regulation S.
[ ]B. This Certificate relates to our proposed exchange of $____ principal
amount of Notes issued under the Indenture for an equal principal amount of
Notes to be held by us. We hereby certify as follows:
1. At the time the offer and sale of the Notes was made to us, either
(i) we were not in the United States or (ii) we were excluded from
the definition of "U.S. person" pursuant to Rule 902(k)(2)(vi) or the
account held by us for which we were acting was excluded from the
definition of "U.S. person" pursuant to Rule 902(k)(2)(i) under the
circumstances described in Rule 902(h)(3); and we were not a member
of an identifiable group of U.S. citizens abroad.
2. Unless the circumstances described in paragraph 1(ii) above are
applicable, either (a) at the time our buy order was originated, we
were outside the United States or (b) the transaction was executed
in, on or through the facilities of a designated offshore securities
market and we did not pre-arrange the transaction in the United
States.
3. The proposed exchange of Notes is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
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You and the Company are entitled to rely upon this Certificate and are
irrevocably authorized to produce this Certificate or a copy hereof to any
interested party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ______________________
Authorized Signature
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ARTICLE 6
ORIGINAL ISSUE OF NOTES
SECTION 6.01. Original Issue of Notes; Further Issuances.
(a) The Notes due 2008 in the initial aggregate principal amount of
$300,000,000 and the Notes due 2015 in the initial aggregate principal amount
of $700,000,000 may, upon execution of this Supplemental Indenture, be executed
by the Company and delivered to the Trustee for authentication, and the Trustee
shall thereupon authenticate and deliver said Notes to or upon the written
order of the Company, signed by its Chairman, its Vice Chairman, its President,
or any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
(b) The Company may, without notice to or the consent of the Holders of
the Notes, issue additional notes of the same tenor as the Notes due 2008 or
the Notes due 2015, so that such additional notes and the Notes due 2008 or the
Notes due 2015, as applicable, shall form a single series. Any such Notes
referred to in this Section 6.01(b) will be issued under a further supplemental
indenture.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Ratification of Indenture.
The Indenture, as supplemented by this Supplemental Indenture, is in all
respects ratified and confirmed, and this Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein and therein
provided.
SECTION 7.02. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
SECTION 7.03. Governing Law.
This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York without regard
to principles of conflicts of laws.
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SECTION 7.04. Separability.
In case any one or more of the provisions contained in this Supplemental
Indenture or in the Notes shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Supplemental
Indenture or of the Notes, but this Supplemental Indenture and the Notes shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
SECTION 7.05. Counterparts.
This Supplemental Indenture may be executed in any number of counterparts
each of which shall be an original; but such counterparts shall together
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested on the date or dates indicated in
the acknowledgments and as of the day and year first above written.
INTERNATIONAL PAPER COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President - Finance
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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THE BANK OF NEW YORK
as Trustee
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President