As filed with the Securities and Exchange Commission on March 8, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MEADWESTVACO CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 2621 31-1797999
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
One High Ridge Park
Stamford, CT 06905
(203)461-7400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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WESTVACO CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 2621 31-1466285
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
One High Ridge Park
Stamford, CT 06905
(203)461-7400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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THE MEAD CORPORATION
(Exact name of Registrant as specified in its charter)
Ohio 2631 31-0535759
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
(937)495-6323
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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John W. Hetherington, Vice President and Secretary
MeadWestvaco Corporation
One High Ridge Park
Stamford, CT 06905
(203)461-7400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Wendell L. Willkie, II, Esq.
Senior Vice President and General Counsel
MeadWestvaco Corporation
One High Ridge Park
Stamford, Connecticut 06905
(203) 461-7400
Gerard M. Meistrell, Esq.
Gary A. Brooks, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
(212) 701-3000
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Proposed Proposed
Amount maximum maximum
to be offering price aggregate Amount of
Title of each class of registered (1)(2) per unit (2)(3) offering price (2)(3) registration fee (2)(4)
securities to be registered
- ---------------------------------------------------------------------------------------------------------------------------
Debt Securities of
MeadWestvaco Corporation (5)
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Guarantees of Debt
Securities (5).............
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Total $1,000,000,000 100% $1,000,000,000 $73,600
===========================================================================================================================
(1) Pursuant to Rule 429 under the Securities Act, $200,000,000 of securities
are being carried forward from Westvaco Corporation's registration
statement on Form S-3 (File No. 333-54424). Westvaco Corporation is a
co-registrant on this registration statement. Westvaco Corporation
previously paid a fee calculated based on the rate applicable at the time
the prior registration statement was filed. The amount of the fee paid
herewith has been calculated after giving effect to the amount of
securities being carried forward from Westvaco's prior registration
statement.
(2) Pursuant to General Instruction II.D. of Form S-3 the table lists each of
the classes of securities being registered and the aggregate proceeds to be
raised, but does not specify by each class information as to the amount to
be registered, proposed maximum offering price per unit, and proposed
maximum aggregate offering price.
(3) Estimated solely for purposes of determining the registration fee.
(4) Pursuant to Rule 457(o), the registration fee has been calculated on the
basis of the maximum aggregate offering price of the securities listed.
Does not include the registration fee previously paid with respect to
$200,000,000 of securities of Westvaco Corporation covered by registration
Statement no. 333-54424 being carried over to this registration statement.
(5) The debt securities of MeadWestvaco being registered hereby may be
guaranteed by either or both Westvaco Corporation and The Mead Corporation.
Pursuant to Rule 457(n), no separate fee is required to be paid in respect
of guarantees of the debt securities which are being registered
concurrently.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
MeadWestvaco Corporation
Debt Securities
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By this prospectus, we may offer up to $1,000,000,000 of debt securities.
Market conditions at the time these securities are sold will determine the
prices and terms of these securities.
Each issue of debt securities of MeadWestvaco Corporation ("MeadWestvaco")
under this prospectus may have a different aggregate principal amount, maturity
date, public offering price, interest rate or rates, timing of interest
payments, provisions for redemption, sinking fund requirements, and other
variable terms. The specific terms of each offering of debt securities under
this prospectus will be included in an accompanying prospectus supplement.
Each issue of debt securities of MeadWestvaco may be guaranteed on an
unsecured basis by either or both of The Mead Corporation ("Mead") and Westvaco
Corporation ("Westvaco"), two of MeadWestvaco's wholly-owned subsidiaries. See
"Description of the Debt Securities and the Guarantees". If an issue of debt
securities of MeadWestvaco is being issued with the benefit of any such
guarantees, the accompanying prospectus supplement will identify the guarantor
or guarantors and any additional terms relating to such guarantees not set forth
herein.
This prospectus may not be used to consummate sales of offered securities
unless accompanied by a prospectus supplement. You should read this prospectus
and the accompanying prospectus supplement carefully before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
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We may sell securities under this prospectus to or through underwriters. We
may also sell these securities directly to other purchasers or through agents.
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The date of this prospectus is March 8, 2002.
TABLE OF CONTENTS
Page
Documents Incorporated By Reference........................................2
Where You Can Find More Information........................................3
The Company................................................................4
Ratio of Earnings to Fixed Charges.........................................4
Use of Proceeds............................................................5
Description of the Debt Securities and the Guarantees......................6
Plan of Distribution.......................................................15
Legal Opinions.............................................................16
Experts....................................................................16
DOCUMENTS INCORPORATED BY REFERENCE
This prospectus incorporates documents by reference which are not presented
in or delivered with this prospectus.
All documents filed by MeadWestvaco, Mead or Westvaco pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date
of this prospectus and prior to the termination of the offering of the
securities, are incorporated by reference into and are deemed to be a part of
this prospectus from the date of filing of those documents.
You should rely only on the information contained in this document or that
which we have referred you to. We have not authorized anyone to provide you with
any additional information.
The following documents, which have been filed by MeadWestvaco, with the
Securities and Exchange Commission (SEC file number 001-31215) are incorporated
by reference into this prospectus:
Joint Proxy Statement-Prospectus included in Dated December 20, 2001
its registration statement on Form S-4, as
amended (No. 333-71124)
Current Report on Form 8-K Filed January 30, 2002
Current Report on Form 8-K Filed January 31, 2002
Current Report on Form 8-K Filed February 1, 2002
Current Report on Form 8-K Filed February 6, 2002
Current Report on Form 8-K/A Filed February 6, 2002
Current Report on Form 8-K/A Filed March 8, 2002
The following documents, which have been filed by Mead with the Securities
and Exchange Commission (SEC file number 001-02267), are incorporated by
reference into this prospectus:
Current Report on Form 8-K Filed August 30, 2001
Current Report on Form 8-K Filed October 17, 2001
Current Report on Form 8-K Filed October 18, 2001
Current Report on Form 8-K Filed January 22, 2002
Current Report on Form 8-K Filed January 29, 2002
Quarterly Report on Form 10-Q Quarter ended April 1, 2001
Quarterly Report on Form 10-Q Quarter ended July 1, 2001
Quarterly Report on Form 10-Q Quarter ended September 30, 2001
and Amendment No. 1
Proxy Statement Filed March 9, 2001
Annual Report on Form 10-K and
Amendments No. 1, 2 and 3 Year ended December 31, 2000
The following documents, which were filed by Westvaco with the Securities
and Exchange Commission (SEC file number 001-03013), are incorporated by
reference into this prospectus:
Current Report on Form 8-K Filed December 20, 2001
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Current Report on Form 8-K Filed January 29, 2002
Proxy Statement Filed January 12, 2001
Additional Proxy Materials Filed February 13, 2001
Annual Report on Form 10-K Year ended October 31, 2001
Any statement contained in a document incorporated or deemed to be
incorporated by reference into this prospectus will be deemed to be modified or
superseded for purposes of this prospectus to the extent that a statement
contained in this prospectus or any other subsequently filed document that is
deemed to be incorporated by reference into this prospectus modifies or
supersedes the statement. Any statement so modified or superseded will not be
deemed, except as so modified or superseded, to constitute a part of this
prospectus.
You may request a copy of these filings at no cost, by writing or
telephoning us at as follows: MeadWestvaco Corporation, One High Ridge Park,
Stamford, Connecticut 06905, telephone (203) 461-7400, Attn: Corporate
Secretary.
You should rely only on the information contained or incorporated by
reference in this prospectus or any prospectus supplement. We have not
authorized any other person to provide you with different information. We are
not making an offer of these securities in any jurisdiction where the offer is
not permitted. You should assume that the information appearing in this
prospectus or any prospectus supplement, as well as information we previously
filed with the Securities and Exchange Commission and incorporated by reference,
is accurate as of the date on the front of those documents only.
WHERE YOU CAN FIND MORE INFORMATION
MeadWestvaco will file, and each of Mead and Westvaco have filed, annual,
quarterly and special reports, proxy statements and other information with the
Securities and Exchange Commission. Such filings are available to the public
over the Internet at the Securities and Exchange Commission's web site at
http://www.sec.gov. You may also read and copy any such document at the
Securities and Exchange Commission's public reference rooms at 450 Fifth Street,
N.W., Washington, D.C. 20549. Please call the Securities and Exchange Commission
at 1-800-SEC-0330 for further information on the public reference rooms.
This prospectus is a part of a registration statement on Form S-3 and
exhibits filed with the Securities and Exchange Commission. This prospectus does
not contain all of the information in the registration statement. Please refer
to the registration statement and its exhibits for further information regarding
MeadWestvaco and the offered securities.
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THE COMPANY
MeadWestvaco is a newly formed Delaware corporation formed for the purpose
of consummating the business combination of Mead and Westvaco. The business
combination was consummated on January 29, 2002. MeadWestvaco's business
consists exclusively of the businesses of Mead and Westvaco. The principal
executive offices of MeadWestvaco are located at One High Ridge Park, Stamford,
Connecticut 06905, and its telephone number at that address is (203) 461-7400.
Mead was incorporated in 1930 under the laws of the state of Ohio as the
outgrowth of a paper manufacturing business founded in 1846. Mead manufactures
and sells paper, packaging systems, pulp, paperboard, lumber and other wood
products. Mead also manufactures and distributes consumer and office supplies
including time management products. Mead serves customers in approximately 100
countries with operations in North America, Latin America, Europe and Asia.
Westvaco, a Delaware corporation, was incorporated in 1899 as West Virginia
Pulp and Paper Company. Westvaco is a producer of packaging, paper and specialty
chemicals. Westvaco serves customers in more than 70 countries with operations
in the North America, Latin America, Europe and Asia. Westvaco produces paper
and paperboard to convert into a variety of packaging products. Westvaco is also
a leading global supplier of packaging for consumer products markets. Westvaco
also manufactures a variety of specialty chemicals, sells timber from its
forestlands, is engaged in land development and produces lumber.
Unless otherwise indicated or the context otherwise requires, the term
"MeadWestvaco" refers to MeadWestvaco Corporation and its consolidated
subsidiaries, including Mead and Westvaco, and the terms "Mead" and "Westvaco"
refer to The Mead Corporation and Westvaco Corporation, respectively, in each
case together with their consolidated subsidiaries.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of MeadWestvaco, Mead and
Westvaco are set forth below for the periods indicated. For periods in which
earnings before fixed charges were insufficient to cover fixed charges (or
combined fixed charges and preferred dividends), the dollar amount of coverage
deficiency (in millions), instead of the ratio, is disclosed.
Westvaco had a fiscal year ending October 31, and Mead has a fiscal year
ending December 31. Therefore, the pro forma ratio of earnings to fixed charges
for MeadWestvaco has been derived from the full year ended October 31, 2001 for
Westvaco and the full year ended December 31, 2001 for Mead. In each case, the
pro forma ratio of earnings to fixed charges for MeadWestvaco is presented to
give effect to the business combination of Mead and Westvaco as if it occurred
at November 1, 2000. MeadWestvaco believes that it is meaningful to present pro
forma financial information based on the fiscal year-end of the combined company
to facilitate an analysis of the pro forma effects of the business combination.
The pro forma ratios have been derived from, and should be read in
conjunction with, the unaudited pro forma consolidated condensed financial data
including the notes thereto, of MeadWestvaco. Those unaudited pro forma
consolidated condensed financial data are included in MeadWestvaco's Current
Report on Form 8-K/A dated March 8, 2002, which is incorporated herein by
reference.
For the purpose of computing the consolidated ratios of earnings to fixed
charges (1) earnings have been calculated by adding income taxes and fixed
charges (excluding capitalized interest) to net income before the extraordinary
charge and the cumulative effect of accounting changes, and (2) fixed charges
comprise the total of interest charges and a portion of rentals determined to be
representative of the interest factor.
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MeadWestvaco(a)
Pro Forma
--------------------------------
Year ended
October 31, 2001
Ratio of earnings to fixed charges.......... 1.07x
(a) MeadWestvaco became the parent of Mead and Westvaco on January 29, 2002 as
the result of the consummation of the business combination of Mead and
Westvaco. Because Westvaco is the predecessor of MeadWestvaco for
accounting purposes, MeadWestvaco's historical ratios are the same as
Westvaco's historical ratios, which are presented below.
Mead
Historical fiscal year ended December 31,
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1997 1998 1999 2000 2001
---- ---- ---- ---- ----
Ratio of earnings
to fixed charges........ 3.0x 2.8x 3.3x 2.7x
Deficiency in earnings
necessary to cover fixed
charges................. $(45.9)
Westvaco
Historical fiscal year ended October 31,
--------------------------------------------------------------------------
1997 1998 1999 2000 2001
---- ---- ---- ---- ----
Ratio of earnings
to fixed charges......... 2.8x 2.4x 2.0x 2.9x 1.5x
USE OF PROCEEDS
Except as otherwise set forth in the accompanying prospectus supplement
relating to an offering of the Securities, the net proceeds from the sale of the
Securities being offered will be added to MeadWestvaco's general corporate funds
and will be available for general corporate purposes, including, but not limited
to, future capital outlays, working capital and the repayment of existing debt.
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DESCRIPTION OF SECURITIES
References in this "Description of Securities" section to "MeadWestvaco",
"Mead" and "Westvaco" refer, respectively, to each of them individually and not
to any of their respective consolidated subsidiaries.
The Securities are to be issued under an Indenture (the "Indenture")
between MeadWestvaco, as issuer, Westvaco, as guarantor, Mead, as guarantor
(together with Westvaco in such capacity, the "Guarantors" and each individually
a "Guarantor") and The Bank of New York, as Trustee (the "Trustee"), a copy of
which is filed as an exhibit to the registration statement. If the Securities of
any particular series are issued with the benefit of a guarantee (a "Guarantee")
from either or both of the Guarantors, the terms of such series and the
accompanying prospectus supplement will so specify. The following summaries of
certain provisions of the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all provisions
of the Indenture, including the definitions therein of certain terms. Wherever
particular Sections or defined terms of the Indenture are referred to, it is
intended that such Sections or defined terms shall be incorporated herein by
reference. The following sets forth certain general terms and provisions of the
Securities to which any prospectus supplement may relate. The particular terms
of the Securities offered by any prospectus supplement (the "Offered
Securities") and the extent, if any, to which such general provisions may apply
to the Securities so offered, will be described in the prospectus supplement
relating to such Offered Securities.
General
The Indenture does not limit the aggregate principal amount of Securities
which may be issued thereunder and provides that Securities may be issued from
time to time in one or more series. The Securities will be unsecured obligations
of MeadWestvaco.
Reference is made to the prospectus supplement relating to the particular
series of Securities offered thereby for the following terms of the Offered
Securities:
o the title of the Offered Securities;
o any limit on the aggregate principal amount of the Offered Securities;
o the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Offered Securities will be
issued;
o the date or dates on which the Offered Securities will mature;
o the rate or rates (which may be fixed or variable) per annum at which
the Offered Securities will bear interest, if any;
o the date from which such interest, if any, on the Offered Securities
will accrue, the dates on which such interest, if any, will be
payable, the date on which payment of such interest, if any, will
commence and the Regular Record Dates for such Interest Payment Dates,
if any;
o the ranking of the Offered Securities relative to any and all other
securities of MeadWestvaco theretofore issued;
o the Guarantees, if any, issued for the benefit of Holders of the
Offered Securities;
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o the dates, if any, on which and the price or prices at which the
Offered Securities will, pursuant to any mandatory sinking fund
provisions, or may, pursuant to any optional sinking fund or to any
purchase fund provisions, be redeemed or purchased by MeadWestvaco,
and the other detailed terms and provisions of such sinking and/or
purchase funds;
o the date, if any, after which and the price or prices at which the
Offered Securities may, pursuant to any optional redemption
provisions, be redeemed at the option of MeadWestvaco or of the Holder
thereof and the other detailed terms and provisions of such optional
redemption; and
o any other terms of the series (which will not be inconsistent with the
provisions of the Indenture).
Unless otherwise indicated in the related prospectus supplement, principal
of and premium, if any, and interest, if any, on the Securities will be payable,
and the transfer of the Securities will be registrable, at the office of the
Trustee in the Borough of Manhattan, The City of New York, except that, at the
option of MeadWestvaco, interest may be paid by mailing a check to the address
of the person entitled thereto as it appears on the Security Register. (Sections
301, 305, 1002)
Unless otherwise indicated in the related prospectus supplement, the
Securities will be issued only in fully registered form without coupons and in
denominations of $1,000 or any integral multiple thereof. No service charge will
be made for any transfer or exchange of the Securities, but MeadWestvaco may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. (Sections 302, 305)
Securities may be issued as Original Issue Discount Securities to be sold
at a substantial discount below their principal amount. Special federal income
tax and other considerations applicable thereto will be described in the
prospectus supplement relating thereto.
The Indenture does not contain any covenants or other provisions which
would afford Holders of Securities protection in the event of a highly leveraged
transaction involving MeadWestvaco.
Guarantees
Securities of a series may be issued with the benefit of a Guarantee from
one or more Guarantors pursuant to the terms of the Indenture and such series of
Securities. The Guarantor or Guarantors, as the case may be, will fully and
unconditionally guarantee to each Holder of Securities of the specified series
and to the Trustee and its successors and assigns, (1) the full and punctual
payment of all monetary obligations of MeadWestvaco under the Indenture
(including obligations to the Trustee) with respect to such Securities of the
applicable series and (2) the full and punctual performance within applicable
grace periods of all other obligations of MeadWestvaco under the Indenture with
respect to such Securities of the applicable series. Such Guarantees will
constitute guarantees of payment, performance and compliance and not merely of
collection. The obligations of each Guarantor will be unconditional irrespective
of the absence or existence of any action to enforce the same, the recovery of
any judgment against MeadWestvaco or each other or any waiver or amendment of
the provisions of the Indenture or specified Securities to the extent that any
such action or similar action would otherwise constitute a legal or equitable
discharge or defense of a Guarantor (except that each such waiver or amendment
shall be effective in accordance with its terms). The obligations of each
Guarantor to make any payments may be satisfied by causing MeadWestvaco or the
other Guarantor, if any, to make such payments. If any Holder of any Security of
the applicable series or the Trustee is required by a court or otherwise to
return to MeadWestvaco, a Guarantor or any custodian, trustee, liquidator or
other similar official acting in relation to any of them, any amount paid by any
of them to the Trustee or such Holder, the Guarantee of a Guarantor, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Further, each Guarantor agrees to pay any and all costs and expenses
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(including reasonable attorneys' fees) incurred by the Trustee or any Holder of
Securities of the applicable series in enforcing any of their respective rights
under the respective Guarantee. Each Guarantee is limited to the maximum amount
that can be guaranteed by the respective Guarantor, without rendering the
relevant Guarantee voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of
creditors generally.
Each Guarantee (taken individually) shall be automatically released and
shall terminate upon (a) the merger of the respective Guarantor with or into
MeadWestvaco or the other Guarantor, if any, (b) the consolidation of the
respective Guarantor with MeadWestvaco or the other Guarantor, if any, (c) the
transfer of all or substantially all of the assets of the respective Guarantor
to MeadWestvaco or the other Guarantor, if any, or (d) the termination of such
Guarantor's guarantee of the MeadWestvaco's obligations under each of the Bank
Credit Facilities. "Bank Credit Facilities" means (i) the Five-Year Credit
Agreement, dated as of December 21, 2001, among MeadWestvaco and the lenders and
agents listed therein, with The Bank of New York, as administrative agent and
Bank One, NA, as syndication agent, as amended, supplemented or otherwise
modified, (ii) the 364-Day Credit Agreement, dated as of December 21, 2001,
among MeadWestvaco and the lenders and agents listed therein, with The Bank of
New York, as administrative agent and Bank One, NA, as syndication agent, as
amended, supplemented or otherwise modified, and (iii) any amendments, renewals,
refundings, refinancings, extensions, modifications or replacements with respect
to any of the foregoing.
Each of Mead and Westvaco, prior to consummation of the business
combination, has issued several series of debt securities and commercial paper
that remain outstanding as of the date of this prospectus. In connection with
the business combination (1) each of MeadWestvaco and Mead has guaranteed
Westvaco's obligations under its outstanding series of debt securities and
commercial paper, and (2) each of MeadWestvaco and Westvaco has guaranteed
Mead's obligations under its outstanding series of debt securities and
commercial paper.
Each of Mead and Westvaco, prior to consummation of the business
combination, has entered into obligations with respect to several series of tax
exempt debt in conjunction with several municipalities. In connection with the
business combination (1) each of MeadWestvaco and Mead has guaranteed Westvaco's
obligations with respect to the various series of tax exempt debt issued for its
benefit, and (2) each of MeadWestvaco and Westvaco has guaranteed Mead's
obligations with respect to certain of its outstanding series of tax exempt debt
issued for its benefit. MeadWestvaco anticipates that Mead's obligations with
respect to any series of tax exempt debt issued for Mead's benefit that have not
been guaranteed by MeadWestvaco and Westvaco will become so guaranteed in the
future.
Each of Mead and Westvaco may, in the future, guarantee obligations of
MeadWestvaco, including, but not limited to, obligations with respect to series
of Securities, credit facilities, tax exempt debt and commercial paper. As of
the date of this prospectus, each of Mead and Westvaco has guaranteed
MeadWestvaco's obligations under its Bank Credit Facilities described in clauses
(i) and (ii) of the definition thereof and its commercial paper program.
Restrictive Covenants
Certain capitalized terms used in this "Restrictive Covenants" section have
the meanings provided in the last paragraph hereof.
Limitations on Liens. The Indenture provides that so long as any of the
Securities are outstanding MeadWestvaco will not, and will not permit any
Domestic Subsidiary to, issue, assume or guarantee any debt for money borrowed
(herein referred to as "Debt") if such Debt is secured by any mortgage, security
interest, pledge or other lien (herein referred to as a "mortgage") upon any
Principal Property of MeadWestvaco or any Domestic Subsidiary or indebtedness of
any Domestic Subsidiary, whether owned at the date of the Indenture or
thereafter
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acquired, without effectively securing the Securities equally and ratably with
such Debt. The foregoing restriction does not apply to:
(1) mortgages on any property acquired, constructed or improved after
the date of the Indenture which are created or assumed within 24 months
after such acquisition, construction or improvement (or within six months
thereafter pursuant to a firm commitment for financing arrangements entered
into within such 24 month period) to secure or provide for the payment of
the purchase price or cost thereof incurred after the date of the
Indenture, or existing mortgages on property acquired, provided such
mortgages shall not apply to any property theretofore owned by MeadWestvaco
or a Domestic Subsidiary other than theretofore unimproved real property;
(2) mortgages existing on any property acquired from a corporation
merged with or into MeadWestvaco or a Domestic Subsidiary;
(3) mortgages on property of any corporation existing at the time it
becomes a Domestic Subsidiary;
(4) mortgages securing Debt owed by a Domestic Subsidiary to
MeadWestvaco or to another Domestic Subsidiary;
(5) mortgages in favor of governmental bodies to secure advance or
other payments pursuant to any contract or statute or to secure
indebtedness incurred to finance the purchase price or cost of constructing
or improving the property subject to such mortgages;
(6) mortgages on timberlands in connection with an arrangement under
which MeadWestvaco or a Domestic Subsidiary is obligated to cut or pay for
timber in order to provide the secured party with a specified amount of
money, however determined; or
(7) mortgages securing tax exempt debt of MeadWestvaco or a Domestic
Subsidiary;
(8) mortgages for extending, renewing or replacing Debt secured by any
mortgage referred to in the foregoing clauses (1) to (7) inclusive or in
this clause or any mortgage existing on the date of the Indenture,
provided, however, that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which secured
the mortgage so extended, renewed or replaced (plus improvements on such
property).
Such restriction does not apply to the issuance, assumption or guarantee by
MeadWestvaco or any Domestic Subsidiary of Debt secured by a mortgage which
would otherwise be subject to the foregoing restriction up to an aggregate
amount which, together with all other secured Debt (not including secured Debt
permitted under the foregoing exceptions) and the Value (as defined) of Sale and
Lease-back Transactions existing at such time (other than Sale and Lease-back
Transactions the proceeds of which have been applied to the retirement of
Securities or of Funded Debt or to the purchase of other Principal Property, and
other than Sale and Lease-back Transactions in which the property involved would
have been permitted to be mortgaged under clause (1) above), does not exceed 15%
of Consolidated Net Tangible Assets. (Section 1005)
Limitation on Sale and Lease-back Transactions. Sale and Lease-back
Transactions by MeadWestvaco or any Domestic Subsidiary of any Principal
Property are prohibited (except for temporary leases for a term, including
renewals, of not more than three years and except for leases between
MeadWestvaco and a Domestic
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Subsidiary or between Domestic Subsidiaries) unless the net proceeds of such
sale are at least equal to the fair value of such Principal Property and:
o MeadWestvaco or such Domestic Subsidiary would be entitled to incur
Debt secured by a mortgage on the property to be leased without
securing the Securities pursuant to clause (1) under "Limitations on
Liens" or
o the Value thereof would be an amount permitted under the last sentence
under "Limitations on Liens" or
o MeadWestvaco or any of its subsidiaries applies an amount equal to the
fair value of such Principal Property
(a) to the retirement of Funded Debt of MeadWestvaco or a
Domestic Subsidiary or
(b) to the purchase of Principal Property (other than that
involved in such Sale and Lease-back Transaction). (Section 1006)
For the purposes of the covenants described above,
"Consolidated Net Tangible Assets" means the total of all the assets
appearing on the consolidated balance sheet of MeadWestvaco and its subsidiaries
less the following: (1) current liabilities, including liabilities for
indebtedness maturing more than 12 months from the date of the original creation
thereof but maturing within 12 months from the date of determination; (2)
reserves for depreciation and other asset valuation reserves; (3) intangible
assets such as goodwill, trademarks, trade names, patents, and unamortized debt
discount and expense carried as an asset on said balance sheet; and (4)
appropriate adjustments on account of minority interests of other persons
holding stock in any subsidiary of MeadWestvaco. Consolidated Net Tangible
Assets shall be determined in accordance with generally accepted accounting
principles and practices applicable to the type of business in which
MeadWestvaco and its subsidiaries are engaged and which are approved by the
independent accountants regularly retained by MeadWestvaco, and may be
determined as of a date not more than sixty days prior to the happening of the
event for which such determination is being made.
"Domestic Subsidiary" means any Subsidiary which owns a Principal Property.
"Funded Debt" means any Debt which by its terms matures at or is extendable
or renewable at the sole option of the obligor without requiring the consent of
the obligee to a date more than twelve months after the date of the creation of
such Debt.
"Principal Property" means any mill, converting plant, manufacturing plant,
manufacturing facility, including, in each case, the equipment therein, or
timberlands, located within the continental United States of America (other than
any of the foregoing acquired principally for the control or abatement of
atmospheric pollutants or contaminants or water, noise, odor or other pollution,
or any facility financed from the proceeds of pollution control or revenue
bonds), whether owned at the date of the Indenture or thereafter acquired,
having a gross book value (without deductions of any applicable depreciation
reserves) on the date as of which the determination is being made of more than
5% of Consolidated Net Tangible Assets, but shall not include any minerals or
mineral rights, or any timberlands designated by the Board of Directors of
MeadWestvaco or of a Domestic Subsidiary, as the case may be, as being held
primarily for development and/or sale.
-10-
"Sale and Lease-back Transaction" means any arrangement with any person
providing for the leasing to MeadWestvaco or any Domestic Subsidiary of any
Principal Property (except for temporary leases for a term, including any
renewal thereof, of not more than three years and except for leases between
MeadWestvaco and a Domestic Subsidiary or between Domestic Subsidiaries), which
Principal Property has been or is to be sold or transferred by MeadWestvaco or
such Domestic Subsidiary to such person.
"Value" means with respect to a Sale and Lease-back Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds from
the sale or transfer of the property leased pursuant to such Sale and Lease-back
Transaction or (2) the fair value in the opinion of the Board of Directors of
MeadWestvaco of such property at the time of entering into such Sale and
Lease-back Transaction, in either case divided first by the number of full years
of the terms of the lease and then multiplied by the number of full years of
such term remaining at the time of determination, without regard to any renewal
or extension options contained in the lease.
Events of Default
The following are Events of Default under the Indenture with respect to
Securities of any series:
o failure to pay principal of or any premium on any Security of that
series when due;
o failure to pay any interest on any Security of that series when due,
continued for 30 days;
o failure to deposit any sinking fund payment, when due, in respect of
any Security of that series;
o failure to perform any other covenant of MeadWestvaco in the Indenture
(other than a covenant included in the Indenture solely for the
benefit of a series of Securities other than that series), continued
for 60 days after written notice as provided in the Indenture;
o certain events in bankruptcy, insolvency or reorganization with
respect to MeadWestvaco and
o any other Event of Default provided with respect to Securities of that
series. (Section 501)
MeadWestvaco expects that the terms of any series of Securities issued with
the benefit of one or more Guarantees will provide that it shall be an
additional Events of Default with respect to such series of Securities if either
(i) any such Guarantee ceases to be in full force and effect (other than in
accordance with its terms) or is declared null and void or unenforceable or
found to be invalid or unenforceable or found to be invalid or any applicable
Guarantor denies its liability under such Guarantee (other than by reason of the
release of such Guarantor from such Guarantee in accordance with its terms), or
(ii) certain events of bankruptcy, insolvency or reorganization occur with
respect to any applicable Guarantor. If any such additional Events of Default
are applicable with respect to a series of Securities, the accompanying
prospectus supplement will specify such additional Events of Default and shall,
to the extent inconsistent with the foregoing, supersede the expectation of
MeadWestvaco set forth above.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, either the Trustee or the Holders of at
least 25% in aggregate principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of that
series to be due and payable immediately. At any time after a declaration of
acceleration with respect to Securities of any series has been made, but before
a judgment or decree based on acceleration has been obtained, the Holders of a
majority in aggregate principal amount of Outstanding Securities of that series
may, under certain circumstances, rescind and annul such acceleration. (Section
502)
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The Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of that series. (Section 512)
No Holder of any Security of any series will have any right to institute
any proceeding with respect to the Indenture or for any remedy thereunder,
unless such Holder shall have previously given to the Trustee written notice of
a continuing Event of Default with respect to Securities of that series and also
unless the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of that series shall have made written request, and
offered reasonable indemnity, to the Trustee to institute such proceeding as
trustee, and the Trustee shall not have received from the Holders of a majority
in principal amount of the Outstanding Securities of that series a direction
inconsistent with such request and shall have failed to institute such
proceeding within 60 days. (Section 507) However, the Holder of any Security
will have an absolute right to receive payment of the principal of (and premium,
if any) and interest on such Security on or after the due dates expressed in
such Security and to institute suit for the enforcement of any such payment.
(Section 508)
MeadWestvaco is required to furnish to the Trustee annually a statement as
to performance by MeadWestvaco of certain of its obligations under the Indenture
and as to any default in such performance. (Section 1007)
Modification and Waiver
Modifications and amendments of the Indenture may be made by MeadWestvaco
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of all Outstanding Securities, taken together as a single
class, affected by such modification or amendment. However, no such modification
or amendment may, without the consent of the Holder of each Outstanding Security
affected thereby:
o change the stated maturity date of the principal of, or any
installment of principal or interest on, any Security;
o reduce the principal amount of, or any premium or interest on, any
Security;
o reduce the amount of principal of an Original Issue Discount Security
payable upon acceleration of the maturity thereof;
o change the place or currency of payment of principal of, or any
premium or interest on, any Security;
o impair the right to institute suit for the enforcement of any payment
on or with respect to any Security; or
o reduce the percentage in principal amount of Outstanding Securities
the consent of whose Holders is required for modification or amendment
of the Indenture or for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults. (Section 902)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities, taken together as a single class, may, on behalf of all Holders of
Securities, waive, insofar as that series is concerned, compliance
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by MeadWestvaco with certain restrictive provisions of the Indenture. (Section
1008) The Holders of a majority in aggregate principal amount of the Outstanding
Securities, taken together as a single class, may, on behalf of all Holders of
Securities, waive any past default under the Indenture with respect to all
Outstanding Securities of that series, except a default in the payment of
principal or any premium or interest or in respect of a provision which under
the Indenture cannot be modified or amended without the consent of the Holder of
each Outstanding Security. (Section 513)
With respect to any Guarantor the provisions of the Indenture governing the
Guarantees may be modified or amended with the consent of the Holders of a
majority in aggregate principal amount of all Outstanding Securities entitled to
the benefits of a Guarantee from such Guarantor, voting together as a single
class. However, any Guarantee, once issued, may not be released (other than in
accordance with the provisions set forth under "--Guarantees") without the
consent of each Holder of Outstanding Securities affected thereby without first
obtaining the consent of each such Holder.
Consolidation, Merger and Sale of Assets
MeadWestvaco may consolidate or merge with or into, or transfer its assets
substantially as an entirety to, any corporation organized under the laws of any
domestic jurisdiction, provided that the successor corporation assumes
MeadWestvaco's obligations on the Securities and under the Indenture, that after
giving effect to the transaction no Event of Default, and no event which, after
notice or lapse of time, would become an Event of Default, shall have occurred
and be continuing, and that certain other conditions are met. (Section 801)
Legal Defeasance and Covenant Defeasance
We may, at our option and at any time, elect to have all of our obligations
discharged with respect to the Outstanding Securities of any series and all
obligations of any Guarantors discharged with respect to their Guarantees
("Legal Defeasance") except for:
(1) the rights of Holders of Outstanding Securities to receive
payments in respect of the principal of, or interest or premium, if any, on
such Securities when such payments are due from the trust referred to
below;
(2) our obligations with respect to the Securities concerning issuing
temporary Securities, registration of Securities, mutilated, destroyed,
lost or stolen Securities and the maintenance of an office or agency for
payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the trustee,
and our obligations in connection therewith; and
(4) the Legal Defeasance provisions of the indenture.
In addition, we may, at our option and at any time, elect to have our and
our Subsidiaries' obligations released with respect to certain covenants that
are described in the indenture ("Covenant Defeasance") and thereafter any
omission to comply with those covenants will not constitute a Default or Event
of Default with respect to the Securities of the applicable series. In the event
Covenant Defeasance occurs, certain events (not including non-payment,
bankruptcy, receivership, rehabilitation and insolvency events) described under
"--Events of Default will no longer constitute an Event of Default with respect
to the Securities of the applicable series.
In order to exercise either Legal Defeasance or Covenant Defeasance:
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(1) we must irrevocably deposit with the trustee, in trust, for the
benefit of the Holders of the Securities of the applicable series, cash in
U.S. dollars, non-callable Government Securities, or a combination of cash
in U.S. dollars and non-callable Government Securities, in amounts as will
be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, or interest and
premium, if any, on the outstanding Securities of the applicable series on
the stated maturity or on the applicable redemption date, as the case may
be, and we must specify whether the Securities of the applicable series are
being defeased to maturity or to a particular redemption date;
(2) in the case of Legal Defeasance, we have delivered to the trustee
an opinion of counsel (with customary assumptions and exceptions)
reasonably acceptable to the trustee confirming that (a) we have received
from, or there has been published by, the Internal Revenue Service a ruling
or (b) since the date of the supplemental indenture, there has been a
change in the applicable federal income tax law, in either case to the
effect that, and based thereon such opinion of counsel will confirm that,
the Holders of the outstanding Securities of the applicable series will not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred; provided that this
clause (2) shall not apply in the case of any Legal Defeasance occurring
within one year of the Stated Maturity of the Securities of the applicable
series or after such time as all outstanding Securities of the applicable
series have been called for redemption.
(3) in the case of Covenant Defeasance, we have delivered to the
trustee an opinion of counsel (with customary assumptions and exceptions)
reasonably acceptable to the trustee confirming that the Holders of the
outstanding Securities of the applicable series will not recognize income,
gain or loss for federal income tax purposes as a result of such Covenant
Defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such Covenant Defeasance had not occurred; provided that this clause (3)
shall not apply in the case of any Covenant Defeasance occurring within one
year of the Stated Maturity of the Securities of the applicable series or
after such times as all outstanding Securities of the applicable series
have been called for redemption.
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default with
respect to the applicable series of Securities only resulting from the
procurement of funds to be applied to such deposit) and any related
incurrence of a mortgage or mortgages;
(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any material
agreement or instrument to which we or any of our Restricted Subsidiaries
is a party or by which we or any of our Restricted Subsidiaries is bound;
(6) we must deliver to the trustee an officers' certificate stating
that the deposit was not made by us with the intent of preferring the
Holders of Securities of the applicable series over the other of our
creditors with the intent of defeating, hindering, delaying or defrauding
our creditors or others; and
(7) we must deliver to the trustee an officers' certificate and an
opinion of counsel, each stating that all conditions precedent relating to
the Legal Defeasance or the Covenant Defeasance have been complied with.
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Concerning the Trustee
MeadWestvaco maintains banking relationships with the Trustee in the
ordinary course of its business. Borrowings totalling $1,000,000,000 are
available to MeadWestvaco under its Credit Agreement with a group of banks that
includes the Trustee and certain of its affiliates. There are no borrowings
currently outstanding under this Credit Agreement.
PLAN OF DISTRIBUTION
MeadWestvaco may sell Securities to or through underwriters, and also may
sell Securities directly to other purchasers or through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices (which may be changed from time
to time), at market prices prevailing at the time of sale, at prices related to
such prevailing market prices or at negotiated prices. Each prospectus
supplement will describe the method of distribution of the Securities offered
thereby.
In connection with the sale of the Securities, underwriters may receive
compensation from MeadWestvaco or from purchasers of Securities for whom they
may act as agents, in the form of discounts, concessions or commissions. The
underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters under the Securities Act of 1933 and
any discounts or commissions received by them and any profit on the resale of
Securities by them may be deemed to be underwriting discounts and commissions
under such Act. Any such underwriter will be identified and any such
compensation will be described in the prospectus supplement.
If so indicated in the prospectus supplement, MeadWestvaco will authorize
the underwriters to solicit offers by certain institutions to purchase
Securities from MeadWestvaco at the public offering price set forth in the
prospectus supplement pursuant to Delayed Delivery Contracts providing for
payment and delivery on the date stated in the prospectus supplement. Each such
contract will be for an amount not less than, and unless MeadWestvaco otherwise
agrees, the aggregate principal amount of Securities sold pursuant to such
contracts shall not be more than, the respective amounts stated in the
prospectus supplement. Institutions with whom such contracts, when authorized,
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions, and other
institutions, but shall in all cases be subject to the approval of MeadWestvaco.
Delayed Delivery Contracts will not be subject to any conditions except that the
purchase by an institution of the Securities covered thereby shall not at the
time of delivery be prohibited under the laws of any jurisdiction in the United
States to which such institution is subject.
The Underwriting Agreement to be entered into with respect to any
Securities sold through underwriters will provide that the obligations of the
underwriter or underwriters will be subject to certain conditions precedent and
that the underwriters will be obligated to purchase all of the Securities
covered by the applicable prospectus supplement if any are purchased.
MeadWestvaco and the Guarantors, if any, will also agree to indemnify the
several underwriters against certain civil liabilities, including liabilities
under the Securities Act of 1933.
In connection with any offering, the underwriters may over-allot or effect
transactions which stabilize or maintain the market price of the securities at a
level above that which might otherwise prevail in the open market. Such
stabilizing if commenced, may be discontinued at any time.
-15-
LEGAL OPINIONS
The legality of the Securities offered hereby will be passed upon for
MeadWestvaco and, if applicable, Mead and Westvaco, as Guarantors, by Wendell L.
Willkie, II, Esq., Senior Vice President and General Counsel of MeadWestvaco and
for the Underwriters by Cahill Gordon & Reindel, New York, New York. Mr. Willkie
is the beneficial owner of shares of MeadWestvaco's common stock held in trust
under MeadWestvaco's Savings and Investment Plan. He is also the recipient of
stock options granted by MeadWestvaco. Cahill Gordon & Reindel has in the past
performed certain legal services for Westvaco, and continues to perform certain
legal services for MeadWestvaco.
EXPERTS
MeadWestvaco
The consolidated balance sheet of MeadWestvaco (f/k/a MW Holding
Corporation) incorporated in this prospectus by reference to MeadWestvaco's
Joint Proxy Statement--Prospectus included in its Registration Statement on Form
S-4 (No. 333-71124) have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm, given
upon their authority as experts in auditing and accounting.
Mead
The consolidated financial statements of The Mead Corporation for the year
ended December 31, 2001, incorporated in this prospectus by reference to
MeadWestvaco's Form 8-K/A dated March 8, 2002 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their report (which expresses an
unqualified opinion and includes an explanatory paragraph relating to the
company's change in its method of accounting for derivative instruments
effective January 1, 2001 and the company's change in its method of revenue
recognition for provisions included in certain sales agreements effective
January 1, 2000) which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm, given upon their
authority as experts in auditing and accounting.
Westvaco
The consolidated financial statements of Westvaco Corporation incorporated
in this prospectus by reference to Westvaco's Annual Report on Form 10-K for the
year ended October 31, 2001 have been so incorporated in reliance on the report
of PricewaterhouseCoopers LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
-16-
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
Securities and Exchange Commission registration fee..... $ 73,600
Printing and engraving.................................. $ 120,000
Trustee's fee and expenses.............................. $ 16,000
Legal fees........................................... $ 100,000
Accounting services..................................... $ 300,000
Rating agency fees...................................... $ 640,000
Miscellaneous........................................... $ 12,000
------------
Total.............................................. $ 1,261,600
============
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* All amounts shown are estimates, other than the registration fee.
Item 15. Indemnification of Directors and Officers.
MeadWestvaco Corporation and Westvaco Corporation are incorporated under
the laws of the State of Delaware. The General Corporation Law of the State of
Delaware, Section 145, as amended, permits a registrant to indemnify any person
"who was or is a party or is threatened to be made a party" to any proceeding by
his relationship to such registrant "if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests" of such
registrant. Expenses may be paid in advance and insurance may be carried by such
registrant.
Section 2.13 of MeadWestvaco's Bylaws provides as follows:
Each director, officer and employee, past or present, of the
Corporation, and each person who serves or may have served at the request
of the Corporation as a director, officer or employee of another
corporation and their respective heirs, administrators and executors, shall
be indemnified by the Corporation in accordance with, and to the fullest
extent provided by, the provisions of the General Corporation Law of the
State of Delaware as it may from time to time be amended. Each agent of the
Corporation and each person who serves or may have served at the request of
the Corporation as an agent of another corporation, or as an employee or
agent of any partnership, joint venture, trust or other enterprise may, in
the discretion of the Board of Directors, be indemnified by the Corporation
to the same extent as provided herein with respect to directors, officers
and employees of the Corporation.
MeadWestvaco has purchased an insurance policy insuring officers and
directors of the registrants against certain liabilities, including liabilities
under the Securities Act of 1933, and insuring the registrants against any
payment which they are obligated to make to such persons under the
indemnification provisions of its Bylaws.
Article II, Section 14 of Westvaco's Bylaws provides as follows:
Each director, officer and employee, past or present, of the
Corporation, and each person who serves or may have served at the request
of the Corporation as a director, officer or employee of another
corporation and their respective heirs, administrators and executors, shall
be indemnified by the Corporation in accordance with, and to the fullest
extent provided by, the provisions of the General Corporation Law of the
State of Delaware as it may from time to time be amended. Each agent of the
Corporation and each person who serves or may have served at the request of
the Corporation as an agent of an-
II-1
other corporation, or as an employee or agent of any partnership, joint
venture, trust or other enterprise may, in the discretion of the Board of
Directors, be indemnified by the Corporation to the same extent as provided
herein with respect to directors, officers and employees of the
Corporation.
Mead is a corporation organized under the laws of Ohio. Section 2 of
Article V of the Regulations of Mead provides for the indemnification by Mead of
its officers, directors, employees and others against certain liabilities and
expenses. Such provision provides different treatment for (i) cases other than
those involving actions or suits by or in the right of Mead and (ii) cases
involving actions or suits by or in the right of Mead. In the first category,
Mead indemnifies each director, officer, employee and agent of Mead and each
person who services another organization at the request of Mead, against
expenses, including attorneys' fees, judgments, decrees, fines, penalties and
amounts paid in settlement actually and reasonably incurred by such person in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was in such position or so serving, if such person acted
in good faith and in a manner reasonably believed to be in or not opposed to the
best interests of Mead, and with respect to any matter the subject of a criminal
action, suit or proceeding, if such person had no reasonable cause to believe
that such person's conduct was unlawful. In the second category, Mead
indemnifies each director, officer, employee and agent of Mead and each person
who serves another organization at the request of Mead, against expenses,
including attorneys' fees, actually and reasonably incurred by such person in
connection with the defense or settlement of any threatened, pending or
completed action or suit by or in the right of Mead to procure a judgment in its
favor, by reason of the fact that such person is or was in such position or so
serving, if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of Mead,
except that no indemnification shall be made in respect of any matter as to
which such person has been adjudged to be liable for negligence or misconduct in
the performance of such person's duty to Mead unless and only to the extent that
a court of common pleas, or the court in which such action or suit was brought,
determines that, despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses. Any such indemnification, unless ordered by a
court, may be made by Mead only as authorized in the specific case upon a
determination that indemnification of such person is proper in the circumstances
because such person has met the applicable standard of conduct. Such
determination must be made (a) by a majority vote of a quorum consisting of
directors of Mead who were not and are not parties to or threatened with any
such action, suit or proceeding, or (b) if such a quorum is not obtainable or if
a majority vote of a quorum of disinterested directors so directs, in a written
opinion by independent legal counsel other than an attorney, or a firm having
associated with it an attorney, who has been retained by or who has performed
services for Mead or the person to be indemnified in the last five years, or (c)
by the shareholders, or (d) by the Court of Common Pleas or the court in which
such action, suit or proceeding was brought. Any determination made by the
disinterested directors or by independent legal counsel must be promptly
communicated to the person who threatened or brought an action or suit by or in
the right of Mead and such person may, within ten days, petition an appropriate
court to review the reasonableness of such determination.
To the extent that a person covered by the indemnification provisions of
the Regulations has been successful on the merits or otherwise in defense of any
action referred to above, indemnification of such person against expenses is
mandatory.
The Regulations also provide that expenses, including attorneys' fees,
amounts paid in settlement, and (except in the case of any action by or in the
right of Mead) judgments, decrees, fines and penalties incurred in connection
with any potential, threatened, pending or completed action or suit by any
person by reason of the fact that he is or was a director, officer, employee or
agent of Mead or is or was serving another organization at the request of Mead
may be paid or reimbursed by Mead, as authorized by the Board of Directors upon
a determination that such payment or reimbursement is in the best interests of
Mead.
II-2
The Regulations also provide that, with certain limited exceptions, a
director will be liable in damages for any action he takes or fails to take as a
director only if it is proved by clear and convincing evidence that such action
or failure to act involved an act or omission undertaken with deliberate intent
to cause injury to Mead or undertaken with reckless disregard for the best
interests of Mead. The Regulations also provide that, with certain limited
exceptions, expenses incurred by a director in defending an action must be paid
by Mead as they are incurred in advance of the final disposition, if the
director agrees (i) to repay such advances if it is proved by clear and
convincing evidence that his action or failure to act involved an act or
omission undertaken with deliberate intent to cause injury to Mead or undertaken
with reckless disregard for Mead's best interests and (ii) to reasonably
cooperate with Mead concerning the action.
Reference is made to the Underwriting Agreement filed as Exhibit (1) to
this Registration Statement.
II-3
Item 16. Exhibits.
(1) Form of Underwriting Agreement relating to the Debt Securities (to be filed
by amendment).
(4)(a) Form of Indenture among MeadWestvaco Corporation, Westvaco Corporation,
The Mead Corporation and The Bank of New York, as trustee.
(4)(b) Form of Debt Security (incorporated by reference to Article II of Exhibit
4(a) to this Registration Statement).
(5) Opinion of Wendell L. Willkie, II, Esq. as Senior Vice President and
General Counsel of MeadWestvaco Corporation (to be filed by amendment).
(12)(a) MeadWestvaco computation of pro forma ratio of earnings to fixed
charges.
(12)(b) Mead computation of ratio of earnings to fixed charges.
(12)(c) Westvaco computation of ratio of earnings to fixed charges.
(23)(a) Consent of Deloitte & Touche LLP.
(23)(b) Consent of PricewaterhouseCoopers LLP.
(23)(c) Consent of Wendell L. Willkie, II, Esq. (included in Exhibit (5)).
(24) Power of Attorney of certain officers and directors (included on pages S-2
and S-3, S-5 and S-7).
(25) Statement of eligibility of trustee on Form T-1.
Item 17. Undertakings.
(a) Each undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales of its
securities are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement; provided, however, that the undertakings set
forth in clauses (i) and (ii) of this paragraph shall not apply if the
information required to be included in such post-effective amendments
is contained in periodic reports filed by the registrant pursuant to
II-4
section 13 or section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Each undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of such
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, each
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, each registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(i) Each undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and the State of New York, on the eighth
day of March, 2002.
MEADWESTVACO CORPORATION
(Registrant)
By: /s/ John A. Luke, Jr.
---------------------------------------------------
Name: John A. Luke, Jr.
Title: President and Chief Executive Officer
S-1
POWER OF ATTORNEY
Know All Men by These Presents, that each person whose name appears below
constitutes and appoints Jerome F. Tatar, John A. Luke, Jr. and Wendell L.
Willkie, II, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitutions and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ Jerome F. Tatar Chairman of the Board and Director March 8, 2002
- ---------------------------------------
Jerome F. Tatar
/s/ John A. Luke, Jr. President and Chief Executive Officer March 8, 2002
- --------------------------------------- and Director
John A. Luke, Jr.
Senior Vice President and Chief Financial March 8, 2002
/s/ Karen R. Osar Officer
- --------------------------------------- (Principal Financial Officer)
Karen R. Osar
/s/ John E. Banu Comptroller March 8, 2002
- --------------------------------------- (Principal Accounting Officer)
John E. Banu
/s/ John G. Breen Director March 8, 2002
- ---------------------------------------
John G. Breen
/s/ Michael E. Campbell Director March 8, 2002
- ---------------------------------------
Michael E. Campbell
/s/ Thomas W. Cole, Jr. Director March 8, 2002
- ---------------------------------------
Dr. Thomas W. Cole, Jr.
/s/ Duane E. Collins Director March 8, 2002
- ---------------------------------------
Duane E. Collins
Director
- ---------------------------------------
David F. D'Alessandro
S-2
/s/ William E. Hoglund Director March 8, 2002
- ---------------------------------------
William E. Hoglund
/s/ James G. Kaiser Director March 8, 2002
- ---------------------------------------
James G. Kaiser
/s/ Richard B. Kelson Director March 8, 2002
- ---------------------------------------
Richard B. Kelson
/s/ John A. Krol Director March 8, 2002
- ---------------------------------------
John A. Krol
/s/ Susan J. Kropf Director March 8, 2002
- ---------------------------------------
Susan J. Kropf
/s/ Douglas S. Luke Director March 8, 2002
- ---------------------------------------
Douglas S. Luke
/s/ Robert C. McCormack Director March 8, 2002
- ---------------------------------------
Robert C. McCormack
/s/ Lee J. Styslinger, Jr. Director March 8, 2002
- ---------------------------------------
Lee J. Styslinger, Jr.
/s/ Jane L. Warner Director March 8, 2002
- ---------------------------------------
Jane L. Warner
/s/ J. Lawrence Wilson Director March 8, 2002
- ---------------------------------------
J. Lawrence Wilson
Director
- ---------------------------------------
Richard A. Zimmerman
S-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and the State of New York, on the eighth
day of March, 2002.
WESTVACO CORPORATION
(Registrant)
By: /s/ John A. Luke, Jr.
------------------------------------------------
Name: John A. Luke, Jr.
Title: Chairman, Chief Executive
Officer and President
S-4
POWER OF ATTORNEY
Know All Men by These Presents, that each person whose name appears below
constitutes and appoints Jerome F. Tatar, John A. Luke, Jr. and Wendell L.
Willkie, II, and each of them, his or her true and lawful attorneys-in-fact and
agents, with full power of substitutions and resubstitution, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ John A. Luke, Jr. Chairman, Chief Executive Officer and March 8, 2002
- ------------------------------------- President and Director
John A. Luke, Jr.
/s/ Karen R. Osar Senior Vice President and Chief Financial March 8, 2002
- ------------------------------------- Officer (Principal Financial Officer)
Karen R. Osar
/s/ James E. Stoveken, Jr. Senior Vice President and Comptroller March 8, 2002
- ------------------------------------- (Principal Accounting Officer)
James E. Stoveken, Jr.
/s/ James A. Buzzard Director March 8, 2002
- -------------------------------------
James A. Buzzard
/s/ Ian W. Millar Director March 8, 2002
- -------------------------------------
Ian W. Millar
/s/ Jerome F. Tatar Director March 8, 2002
- -------------------------------------
Jerome F. Tatar
S-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, and the State of New York, on the eighth
day of March, 2002.
THE MEAD CORPORATION
(Registrant)
By: /s/ Jerome F. Tatar
-------------------------------------------------
Name: Jerome F. Tatar
Title: Chairman, Chief Executive
Officer and President
S-6
POWER OF ATTORNEY
Know All Men by These Presents, that each person whose name appears below
constitutes and appoints Jerome F. Tatar, John A. Luke, Jr. and Wendell L.
Willkie, II, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitutions and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Jerome F. Tatar Chairman, Chief Executive Officer and March 8, 2002
- --------------------------------------- President and Director
Jerome F. Tatar
/s/ Timothy R. McLevish Vice President and Chief Financial March 8, 2002
- --------------------------------------- Officer (Principal Financial Officer)
Timothy R. McLevish
/s/ Peter H. Vogel, Jr. Vice President-Finance and Treasurer March 8, 2002
- --------------------------------------- (Principal Accounting Officer)
Peter H. Vogel, Jr.
/s/ James A. Buzzard Director March 8, 2002
- ---------------------------------------
James A. Buzzard
/s/ John A. Luke, Jr. Director March 8, 2002
- ---------------------------------------
John A. Luke, Jr.
/s/ Ian W. Millar Director March 8, 2002
- ---------------------------------------
Ian W. Millar
S-7
EXHIBIT INDEX
(1) Form of Underwriting Agreement relating to the Debt Securities (to be filed
by amendment).
(4)(a) Form of Indenture among MeadWestvaco Corporation, Westvaco Corporation,
The Mead Corporation and The Bank of New York, as trustee.
(4)(b) Form of Debt Security (incorporated by reference to Article II of Exhibit
4(a) to this Registration Statement).
(5) Opinion of Wendell L. Willkie, II, Esq. as Senior Vice President and
General Counsel of MeadWestvaco Corporation (to be filed by amendment).
(12)(a) MeadWestvaco computation of pro forma ratio of earnings to fixed
charges.
(12)(b) Mead computation of ratio of earnings to fixed charges.
(12)(c) Westvaco computation of ratio of earnings to fixed charges.
(23)(a) Consent of Deloitte & Touche LLP.
(23)(b) Consent of PricewaterhouseCoopers LLP.
(23)(c) Consent of Wendell L. Willkie, II, Esq. (included in Exhibit (5)).
(24) Power of Attorney of certain officers and directors (included on pages S-2
and S-3, S-5 and S-7).
(25) Statement of eligibility of trustee on Form T-1.
EXHIBIT 4(a)
FORM OF INDENTURE
================================================================================
MEADWESTVACO CORPORATION
and
THE BANK OF NEW YORK,
as Trustee
------------------------------
INDENTURE
Dated as of [ ], 2002
--------------------------------
================================================================================
Reconciliation and tie between Provisions of Trust Indenture Act of 1939 and
Indenture, dated as of [ ], 2002
between MEADWESTVACO CORPORATION
and THE BANK OF NEW YORK, Trustee
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
ss.310(a)(1).......................................... 609
(a)(2)......................................... 609
(a)(3)......................................... Not Applicable
(a)(4)......................................... Not Applicable
(a)(5)......................................... 609
(b)............................................ 608, 610
(c)............................................ Not Applicable
ss.311(a)............................................. 613
(b)............................................ 613
ss.312(a)............................................. 701, 702(a)
(b)............................................ 702(b)
(c)............................................ 702(c)
ss.313(a)............................................. 703
(b)............................................ 703
(c)............................................ 703
(d)............................................ 703
ss.314(a)............................................. 704
(a)(4)......................................... 101, 1007
(b)............................................ Not Applicable
(c)(1)......................................... 102
(c)(2)......................................... 102
(c)(3)......................................... Not Applicable
(d)............................................ Not Applicable
(e)............................................ 102
ss.315(a)............................................. 601(a)
(b)............................................ 602, 703
(c)............................................ 601(b)
(d)............................................ 601(c)
(d)(1)......................................... 601(a)(1), 601(c)(1)
(d)(2)......................................... 601(c)(2)
(d)(3)......................................... 601(c)(3)
(e)............................................ 514
ss.316(a)............................................. 101
(a)(1)(A)...................................... 502, 512
(a)(1)(B)...................................... 513
(a)(2)......................................... Not Applicable
(b)............................................ 508
(c)............................................ 104
ss.317(a)(1).......................................... 503
(a)(2)......................................... 504
(b)............................................ 1003
ss.318(a)............................................. 107
TABLE OF CONTENTS(1)
Page
PARTIES......................................................................1
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions....................................................1
Act............................................................2
Affiliate......................................................2
Authenticating Agent...........................................2
Board of Directors.............................................2
Board Resolution...............................................2
Business Day...................................................2
Commission.....................................................2
Company........................................................2
Company Request; Company Order.................................2
Consolidated Net Tangible Assets...............................3
Corporate Trust Office.........................................3
corporation....................................................3
Defaulted Interest.............................................3
Domestic Subsidiary............................................3
Event of Default...............................................3
Expiration Date................................................3
Funded Debt....................................................3
Government Securities..........................................3
Guarantee......................................................3
Guarantor......................................................4
Holder.........................................................4
Indenture......................................................4
- ----------
1 NOTE: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
Page
interest........................................................4
Interest Payment Date...........................................4
Maturity........................................................4
Notation of Guarantee...........................................4
Obligor.........................................................4
Officers' Certificate...........................................4
Opinion of Counsel..............................................4
Original Issue Discount Security................................4
Outstanding.....................................................5
Paying Agent....................................................5
Person..........................................................5
Place of Payment................................................5
Predecessor Security............................................6
Principal Property..............................................6
Redemption Date.................................................6
Redemption Price................................................6
Regular Record Date.............................................6
Responsible Officer.............................................6
Sale and Lease-back Transaction.................................6
Securities......................................................6
Security Register and Security Registrar........................7
Special Record Date.............................................7
Stated Maturity.................................................7
Subsidiary......................................................7
Trustee.........................................................7
Trust Indenture Act.............................................7
Value...........................................................7
Vice President..................................................7
Voting Stock....................................................7
Section 102. Compliance Certificates and Opinions............................8
Section 103. Form of Documents Delivered to Trustee..........................8
Section 104. Acts of Holders.................................................9
Section 105. Notices, Etc., to Trustee and Company..........................11
Section 106. Notice to Holders; Waiver......................................11
Section 107. Conflict with Trust Indenture Act..............................12
Section 108. Effect of Headings and Table of Contents.......................12
Section 109. Successors and Assigns.........................................12
Section 110. Separability Clause............................................12
Section 111. Benefits of Indenture..........................................12
Section 112. Governing Law..................................................12
Section 113. Legal Holidays.................................................12
-ii-
Page
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally................................................13
Section 202. Form of Face of Security.......................................13
Section 203. Form of Reverse of Security....................................16
Section 204. Form of Trustee's Certificate of Authentication................19
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series...........................19
Section 302. Denominations..................................................21
Section 303. Execution, Authentication, Delivery and Dating.................21
Section 304. Temporary Securities...........................................22
Section 305. Registration, Registration of Transfer and Exchange............23
Section 306. Mutilated, Destroyed, Lost and Stolen Securities...............24
Section 307. Payment of Interest; Interest Rights Preserved.................25
Section 308. Persons Deemed Owners..........................................26
Section 309. Cancellation...................................................26
Section 310. Computation of Interest........................................26
Section 311. Calculation of Original Issue Discount.........................26
Section 312. CUSIP Numbers..................................................27
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture........................27
Section 402. Additional Provisions Regarding Legal Defeasance and Covenant
Defeasance................................................28
Section 403. Conditions to Defeasance.......................................29
Section 404. Application of Trust Money.....................................30
Section 405. Repayment to Company...........................................31
Section 406. Indemnity for Government Securities............................31
Section 407. Reinstatement..................................................31
-iii-
Page
ARTICLE FIVE
REMEDIES
Section 501. Events of Default..............................................31
Section 502. Acceleration of Maturity; Rescission and Annulment.............33
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee..................................................33
Section 504. Trustee May File Proofs of Claim...............................34
Section 505. Trustee May Enforce Claims Without Possession of Securities....35
Section 506. Application of Money Collected.................................35
Section 507. Limitation on Suits............................................36
Section 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest..................................................36
Section 509. Restoration of Rights and Remedies.............................36
Section 510. Rights and Remedies Cumulative.................................37
Section 511. Delay or Omission Not Waiver...................................37
Section 512. Control by Holders.............................................37
Section 513. Waiver of Past Defaults........................................37
Section 514. Undertaking for Costs..........................................38
Section 515. Waiver of Stay or Extension Laws...............................38
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities............................39
Section 602. Notice of Defaults.............................................40
Section 603. Certain Rights of Trustee......................................40
Section 604. Not Responsible for Recitals or Issuance of Securities.........42
Section 605. May Hold Securities............................................42
Section 606. Money Held in Trust............................................42
Section 607. Compensation and Reimbursement.................................42
Section 608. Disqualification; Conflicting Interests........................43
Section 609. Corporate Trustee Required; Eligibility........................43
Section 610. Resignation and Removal; Appointment of Successor..............43
Section 611. Acceptance of Appointment by Successor.........................45
Section 612. Merger, Conversion, Consolidation or Succession to Business....46
Section 613. Preferential Collection of Claims Against Company..............46
-iv-
Page
Section 614. Appointment of Authenticating Agent............................47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders......48
Section 702. Preservation of Information; Communications to Holders........49
Section 703. Reports by Trustee.............................................50
Section 704. Reports by Company.............................................50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms...........50
Section 802. Successor Corporation Substituted..............................51
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.............51
Section 902. Supplemental Indentures with Consent of Holders................52
Section 903. Execution of Supplemental Indentures...........................53
Section 904. Effect of Supplemental Indentures..............................54
Section 905. Conformity with Trust Indenture Act............................54
Section 906. Reference in Securities to Supplemental Indentures.............54
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.....................54
Section 1002. Maintenance of Office or Agency................................54
Section 1003. Money for Securities Payments to Be Held in Trust..............55
Section 1004. Maintenance of Corporate Existence.............................56
Section 1005. Restrictions on Liens..........................................56
Section 1006. Restrictions on Sale and Lease-Back Transactions...............59
Section 1007. Officers' Certificate as to Default............................59
Section 1008. Waiver of Certain Covenants....................................59
-v-
Page
Section 1009. Further Assurance..............................................60
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.......................................60
Section 1102. Election to Redeem; Notice to Trustee..........................60
Section 1103. Selection by Trustee of Securities to Be Redeemed..............60
Section 1104. Notice of Redemption...........................................61
Section 1105. Deposit of Redemption Price....................................62
Section 1106. Securities Payable on Redemption Date..........................62
Section 1107. Securities Redeemed in Part....................................62
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.......................................63
Section 1202. Satisfaction of Sinking Fund Payments with Securities..........63
Section 1203. Redemption of Securities for Sinking Fund......................63
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.......................................64
ARTICLE FOURTEEN
GUARANTEES
Section 1401. Guarantees.....................................................64
Section 1402. Termination of Guarantee.......................................65
Section 1403. Amendments And Modifications...................................66
Section 1404. Guarantee Notation.............................................66
-vi-
TESTIMONIUM .................................................................71
Signatures and Seals.........................................................71
Acknowledgments .............................................................71
Exhibit A - Form of Notation of Guarantee...................................A-1
-vii-
INDENTURE, dated as of [ ], 2002, between MeadWestvaco Corporation, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at One High Ridge
Park, Stamford, CT 06905, the Guarantors (as defined herein), if any, and The
Bank of New York, a New York banking corporation, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE. THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation and then used by the
Company in the preparation of its financial statements; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614.
"Board of Directors" means either the board of directors of the Company or
the executive committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, a Vice Chairman or a Vice President, and by
its Chief Financial Officer, its Treasurer, an Assistant Treasurer, its
Controller, an Assistant Controller, its Secretary or an Assistant Secretary,
and delivered to the Trustee.
-2-
"Consolidated Net Tangible Assets"" means the total of all the assets
appearing on the consolidated balance sheet of the Company and its Subsidiaries
less the following: (1) current liabilities, including liabilities for
indebtedness maturing more than 12 months from the date of the original creation
thereof but maturing within 12 months from the date of determination; (2)
reserves for depreciation and other asset valuation reserves; (3) intangible
assets such as goodwill, trademarks, trade names, patents, and unamortized debt
discount and expense carried as an asset on said balance sheet; and (4)
appropriate adjustments on account of minority interests of other persons
holding stock in any Subsidiary of the Company. Consolidated Net Tangible Assets
shall be determined in accordance with generally accepted accounting principles
and practices applicable to the type of business in which the Company and its
Subsidiaries are engaged and which are approved by the independent accountants
regularly retained by the Company, and may be determined as of a date not more
than sixty days prior to the happening of the event for which such determination
is being made.
"Corporate Trust Office" " means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 101 Barclay Street, Floor 21 West, New
York, New York 10286, Attention: Corporate Trust Department, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).
"corporation" includes corporations, associations, companies and business
trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Domestic Subsidiary" means any Subsidiary which owns a Principal Property.
"Event of Default" has the meaning specified in Section 501.
"Expiration Date" has the meaning specified in Section 104.
"Funded Debt" means any Debt which by its terms matures at or is extendible
or renewable at the sole option of the obligor without requiring the consent of
the obligee to a date more than twelve months after the date of the incurrence
of such Debt.
"Government Securities" means direct obligations of the United States for
the payment of which its full faith and credit is pledged, or obligations of a
Person controlled or supervised by and acting as an agency or instrumentality of
the United States the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States.
"Guarantee" means, with respect to any series of Securities, a guarantee of
the Securities of such series and certain other obligations of the Company under
this Indenture as provided in Article Fourteen hereof and the Board Resolution,
Officers' Certificate or supplemental indenture establishing such series of
Securities.
-3-
"Guarantor" means, with respect to any series of Securities, each Person
identified as a Guarantor on the signature pages hereto that issues a Guarantee
pursuant to Section 1404 of this Indenture and the Board Resolution, Officers'
Certificate or supplemental indenture establishing such series of Securities.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemental or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of the particular series of Securities established as
contemplated by Section 301.
"interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Notation of Guarantee" means, with respect to any series of Securities,
the notation of guarantee of the Securities of such series substantially in the
form of Exhibit A hereto, executed on behalf of each Guarantor by its Chairman
of the Board, its Chief Executive Officer, its President, one of its Vice
Chairmen, its Chief Financial Officer, or one of its Vice Presidents, attested
by its Secretary or one of its Assistant Secretaries.
"Obligor" means the Company and any Guarantor.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President, the Chief Executive Officer, a Vice Chairman or a Vice
President, and by the Chief Financial Officer, Treasurer, and Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
-4-
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon such request, demand, authorization, direction, notice, consent
or waiver, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or other legal entity or government or any agency,
authority, commission, body or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of (and premium, if any) and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
-5-
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means any mill, converting plant, manufacturing plant,
manufacturing facility, including, in each case, the equipment therein, or
timberlands, located within the continental United States of America (other than
any of the foregoing acquired principally for the control or abatement of
atmospheric pollutants or contaminants or water, noise, odor or other pollution,
or any facility financed from the proceeds of pollution control or revenue
bonds), whether owned at the date of this Indenture or thereafter acquired,
having a gross book value (without deductions of any applicable depreciation
reserves) on the date as of which the determination is being made of more than
five percent of Consolidated Net Tangible Assets, but shall not include any
minerals or mineral rights, or any timberlands designated by the Board of
Directors or of a Domestic Subsidiary, as the case may be, as being held
primarily for development and/or sale.
"Redemption Date", when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
vice president, any assistant treasurer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Sale and Lease-back Transaction" means any arrangement with any Person
providing for the leasing to the Company or any Domestic Subsidiary of any
Principal Property (except for temporary leases for a term, including any
renewal thereof, of not more than three years and except for leases between the
Company and a Domestic Subsidiary or between Domestic Subsidiaries), which
Principal Property has been or is to be sold or transferred by the Company or
such Domestic Subsidiary to such person.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
-6-
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the Voting Stock of which
is owned or controlled, directly or indirectly, by the Company or by one or more
other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such with respect to
one or more series of Securities pursuant to the applicable provisions of this
Indenture, and thereafter "Trustee" shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
905.
"Value" means with respect to a Sale and Lease-back Transaction, as of any
particular time, the amount equal to the greater of (1) the net proceeds from
the sale or transfer of the Principal Property leased pursuant to such Sale and
Lease-back Transaction or (2) the fair value in the opinion of the Board of
Directors of such Principal Property at the time of entering into such Sale and
Lease-back Transaction, in either case divided first by the number of full years
of the terms of the lease and then multiplied by the number of full years of
such term remaining at the time of determination, without regard to any renewal
or extension options contained in the lease.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such corporation (irrespective of whether or
not at the time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
-7-
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee an Officers' Certificate stating that all conditions preceding, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based are erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
-8-
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601) conclusive in favor of the Trustee and the Company,
if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof or the Holder of any
Predecessor Security in respect of anything done, omitted or suffered to be done
by the Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
The Company may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders of Securities of such series; provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in
-9-
the next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities of the relevant series on such record date,
and no other Holders, shall be entitled to take or revoke the relevant action,
whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date by Holders of the requisite principal amount of
Outstanding Securities of such series on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be canceled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action take by Holders of
the requisite principal amount of Outstanding Securities of the relevant series
on the date such action is taken. Promptly after an record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice of such
record date, the proposed action by Holders and the applicable Expiration Date
to be given to the Trustee in writing and to each Holder of Securities of the
relevant series in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in Section 507(2) or (4) any direction referred to in
Section 512, in each case with respect to Securities of such series. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction or to revoke
the same, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in
this paragraph shall be construed to prevent the Trustee from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be canceled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Trustee, at the
Company's expense, shall cause notice of such record date, the proposed action
by holders and the applicable Expiration Date to be sent to the Company in
writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto that sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto that sets such record date
-10-
shall be deemed to have initially designated the 180th day after such record
date as the Expiration Date with respect thereto, subject to its rights to
change the Expiration Date as provided in this paragraph. Notwithstanding the
foregoing, no Expiration Date shall be later than the 180th day after the
applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with and received by the Trustee at its Corporate Trust Office,
Attention: Vice President, Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to the attention of its Secretary at the address of its principal
office specified in the first paragraph of this instrument, or at any other
address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at its, his or her address as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
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Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent, any Authenticating Agent and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
-12-
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by or pursuant to
a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation of such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If the form of Securities of
any series is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The Trustee's certificates of authentication shall be in substantially the
form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
Section 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security, insert-- THIS SECURITY
IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES OF SECTION 1271 et seq. OF
THE INTERNAL REVENUE CODE. FOR EACH $1,000 PRINCIPAL AMOUNT AT MATURITY OF THIS
SECURITY, THE ISSUE PRICE IS $[ ] AND THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
$[ ]. THE ISSUE DATE OF THIS SECURITY IS [ ] AND THE YIELD TO MATURITY IS [ ]%.]
MEADWESTVACO CORPORATION
No. $
MEADWESTVACO CORPORATION, a Delaware corporation (hereinafter called 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 on
________________ [If the Security is to bear interest prior to Maturity,
insert--, and to pay interest thereon from , or from the most recent In-
-13-
terest Payment Date to which interest has been paid or duly provided for,
semi-annually on and in each year, commencing , at the rate of % per annum,
until the principal hereof is paid or made available for payment. The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert--The
Principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of % per annum (to the extent that payment of such interest
shall be legally enforceable), which shall accrue from the date of such demand
for payment to the date payment of such interest has been made or duly provided
for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert--any such] interest on this Security will be made at the offices or
agencies of the Company maintained for that purpose in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment is legal tender for payment of public and private
debts [if applicable, insert--; provided, however, that at the option of the
Company payment of interest may be made by check drawn upon any Paying Agent and
mailed on or prior to an Interest Payment Date to the address of the Person
entitled thereto as such address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an authenticating
agent, by the manual sig-
-14-
nature of an authorized officer, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
-15-
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
MEADWESTVACO CORPORATION
By:
-------------------------------------------
Attest:
__________________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of [ ], 2002 (herein called the
"Indenture"), between the Company and The Bank of New York, as Trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited in aggregated principal amount to $[ ].
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable,
insert--(1) on in any year commencing with the year and ending with the year
through operation of the sinking fund for this series at a Redemption Price
equal to 100% of the principal amount and (2)] at any time [on or after , 20 ],
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount): If
redeemed [on or before , %, and if redeemed] during the 12-month period
beginning of the years indicated,
Redemption Redemption
Year Price Year Price
---- ----- ---- -----
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [if applicable, insert--(whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interests installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securi-
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ties, or one or more Predecessor Securities, of record at the close of business
on the relevant Regular Record Dates referred to on the face hereof, all as
provided in the Indenture.]
[If applicable, insert--The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on in any year
commencing with the year and ending with the year through operation of the
sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [on or after ], as a whole or
in part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning of the years indicated,
Redemption Price Redemption Price For
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
---- ------------------- ----------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Date referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to , redeem any
Securities of this series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, of in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
[The sinking fund for this series provides for the redemption on in each
year beginning with the year and ending with the year of [not less than] $
[("mandatory sinking fund") and not more than $ ] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made.]
In the event of redemption of this Security in part only, a new Security or
Securities of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
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[If the Security is not an Original Issue Discount Security,--If an Event
of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security,--If an Event of
Default with respect to the Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to--insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time Outstanding of each series to be affected, voting
together as a single class. The Indenture also contains provisions permitting
the Holders of specified percentages in aggregate principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waiver compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of (and premium, if any)
and interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof. As provided in
the Indenture and
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subject to certain limitations therein set forth, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
[If the Security has the benefit of one or more Guarantees, insert the
Notation of Guarantee here, signed by each Guarantor.]
Section 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------------
Authorized Signatory
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. These shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and the
Regular Record Date for the interest payable on any Interest Payment Date;
(5) the place or places, if any, in addition to the Borough of
Manhattan, The City of New York, where the principal of (and premium, if
any) and interest on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may be
redeemed or purchased, in whole or in part, at the option of the Company
and/or the Holder thereof;
(7) whether the Securities of such series shall have the benefit of
any Guarantors, and if so, the name or names of the Guarantors;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or other provision or
at the option of a Holder thereof and the period or periods within which,
the price or prices at which and the terms and conditions upon which
Securities of the series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502; and
(11) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
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All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to such
Board Resolution and set forth in such Officers' Certificate or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of the person
entitled thereto as such address shall appear in the Securities Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be
certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form without
coupons in such denominations as shall be specified as contemplated by Section
301. In the absence of any such provisions with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, one of its Vice
Chairmen, its Chief Financial Officer, its Treasurer or one of its Vice
Presidents, attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signature of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order and subject to the provisions hereof shall authenticate
and deliver such Securities. If the form or terms of the Securities of the
series have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
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(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that all conditions precedent to the authentication and delivery
of such Securities have been complied with and that such Securities, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting the enforcement of creditors' rights and to general equity
principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of one of its authorized officers or
executed by an Authenticating Agent by manual signature of one of its authorized
officers, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series
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shall be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the Company
in a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any series
the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the same
series of authorized denominations. Until so exchanged the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the office of the Security Registrar
designated pursuant to this Section 305 or Section 1002 a register (being the
combined register of the Security Registrar and of all offices and agencies
maintained or designated pursuant to Section 1002 as places were Securities may
be surrendered for registration of transfer or exchange and being herein
sometimes collectively referred to as "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. The Trustee is
hereby initially appointed Security Registrar for the purpose of registering
Securities and transfers of Securities as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register as all reasonable times.
Upon surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series, of any authorized denominations and of a like aggregate principal amount
bearing a number not contemporaneously outstanding and containing identical
terms and provisions.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of a
like aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
its, his or her attorney duly authorized in writing.
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No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a New Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at its, his or her address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice
of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any
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securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 309. Cancellation.
All Securities surrendered directly to the Trustee for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered
to the Trustee, and any such Securities surrendered directly to the Trustee for
any such purpose shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be disposed
of as in accordance with the Trustee's practices.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
Section 311. Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Securities as of the end of such year and (ii) such other
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specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to time.
Section 312. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii)
Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company are to be
called for redemption within one year under arrangements
satisfactory to the
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Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
In the event there are Securities of two or more series hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and
discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, or to any
Authenticating Agent under Section 614 and, if money shall have been deposited
with the Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Sections 404, 406, 607 and the last paragraph
of Section 1003 shall survive.
Section 402. Additional Provisions Regarding Legal Defeasance and Covenant
Defeasance.
(a) Subject to this Section 402(b) and Section 403 hereof, the Company at
any time may terminate, with respect to the Securities of any series, (i) all of
its obligations and all of the obligations of each Guarantor under such
Securities and this Indenture (the "legal defeasance option") or (ii) its
obligations under Sections 1004, 1005, 1006, 1007 and 1008 hereof, the operation
of Sections 501(4) and Article Eight hereof and any other terms applicable to
such series pursuant to a related Board Resolution, Officers' Certificate or
supplemental indenture (unless such terms provide specifically to the contrary
("Other Applicable Terms")) (the "covenant defeasance option"). The Company may
exercise its legal defeasance option notwithstanding its prior exercise of its
covenant defeasance option.
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If the Company exercises its legal defeasance option, payment of the
Securities of the applicable series may not be accelerated because of an Event
of Default. If the Company exercises its covenant defeasance option, payment of
the Securities of the applicable series may not be accelerated because of an
Event of Default specified in Section 501(4) or because of the failure of the
Company to comply with Sections 1004, 1005, 1006, 1007, 1008 or Article Eight
hereof or any Other Applicable Terms. If the Company exercises its legal
defeasance option, each Guarantor, if any, shall be released from all its
obligations under its Guarantee.
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(b) Notwithstanding clause (a) of this Section 402, the Company's
obligations in Sections 305, 306, 404, 406, 407, 607, 609, 610, 614, 1001, 1002
and 1003 hereof shall survive until the Securities of the applicable series have
been paid in full. Thereafter, the Company's obligations in Sections 404, 406,
607 and the last paragraph of Section 1003 hereof shall survive.
Section 403. Conditions to Defeasance.
The Company may exercise its legal defeasance option or its covenant
defeasance option only if:
(1) the Company irrevocably deposits with the Trustee, in trust, for
the benefit of the Holders of the Securities of the applicable series, cash
in U.S. dollars, non-callable Government Securities, or a combination of
cash in U.S. dollars and non-callable Government Securities, in amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay (without consideration of any
reinvestment of interest) the principal of, or interest and premium, if
any, on the outstanding Securities of the applicable series on the Stated
Maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Securities of the applicable series are
being defeased to maturity or to a particular redemption date;
(2) in the case of the legal defeasance option, the Company has
delivered to the Trustee an Opinion of Counsel (with customary assumptions
and exceptions) reasonably acceptable to the Trustee confirming that (a)
the Company has received from, or there has been published by, the Internal
Revenue Service a ruling or (b) since the date of this Indenture, there has
been a change in the applicable federal income tax law, in either case to
the effect that, and based thereon such Opinion of Counsel will confirm
that, the Holders of the outstanding Securities of the applicable series
will not recognize income, gain or loss for federal income tax purposes as
a result of such legal defeasance option and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such legal defeasance option had not occurred;
provided that this clause (2) shall not apply in the case of any legal
defeasance option occurring within one year of the Stated Maturity of the
Securities of the applicable
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series or after such time as all outstanding Securities of the applicable
series have been called for redemption in accordance with Section 1102
hereof;
(3) in the case of covenant defeasance option, the Company has
delivered to the Trustee an Opinion of Counsel (with customary assumptions
and exceptions) reasonably acceptable to the Trustee confirming that the
Holders of the outstanding Securities of the applicable series will not
recognize income, gain or loss for federal income tax purposes as a result
of such covenant defeasance option and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such covenant defeasance option had not occurred;
provided that this clause (3) shall not apply in the case of any covenant
defeasance option occurring within one year of the Stated Maturity of the
Securities of the applicable series or after such time as all outstanding
Securities of the applicable series have been called for redemption in
accordance with Section 1102 hereof;
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit (other than a Default or Event of Default with
respect to the applicable series of Securities only resulting from the
procurement of funds to be applied to such deposit) and any related
incurrence of a mortgage or mortgages (as defined in Section 1005);
(5) such legal defeasance option or covenant defeasance option will
not result in a breach or violation of, or constitute a default under any
material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound;
(6) the Company delivers to the Trustee an Officers' Certificate
stating that the deposit was not made by the Company with the intent of
preferring the Holders of Securities of the applicable series over the
other creditors of the Company with the intent of defeating, hindering,
delaying or defrauding the Company's creditors or others; and
(7) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent relating
to the legal defeasance option or the covenant defeasance option have been
complied with.
Section 404. Application of Trust Money.
The Trustee shall hold in trust cash in U.S. dollars or non-callable
Government Securities deposited with it pursuant to this Article Four. It shall
apply the deposited money and the money from non-callable Government Securities
through the Paying Agent and in accordance with this Indenture to the payment of
principal of, and interest and premium, if any, on, the Securities of the
applicable series.
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Section 405. Repayment to Company.
The Trustee and the Paying Agent shall promptly turn over to the Company
upon written request therefor any excess money or securities held by them at any
time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request therefor any money
held by them for the payment of principal, interest or premium that remains
unclaimed for two years, and, thereafter, holders of Securities of the
applicable series entitled to such money must look to the Company for payment as
general creditors.
Section 406. Indemnity for Government Securities.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against deposited non-callable Government
Securities or the principal and interest received on such non-callable
Government Securities.
Section 407. Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash in U.S. dollars
or non-callable Government Securities in accordance with this Article Four by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations with respect to the Securities of
the applicable series under this Indenture and such Securities shall be revived
and reinstated as though no deposit had occurred pursuant to this Article Four
until such time as the Trustee or Paying Agent is permitted to apply all such
cash in U.S. dollars or non-callable Government Securities in accordance with
this Article Four; provided, however, that if the Company has made any payment
of interest on or principal of any such Securities because of the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the cash in U.S. dollars or
non-callable Government Securities held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", whether used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of series of Securities other than that
series), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25% in principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder;
or
(5) a decree or order by a court having jurisdiction in the premises
shall have been entered granting relief in respect of the Company in an
involuntary proceeding against the Company under any applicable bankruptcy,
insolvency or other similar applicable Federal or State law now or
hereafter in effect, or appointing a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or of all
or substantially all of its property, or for the winding up or liquidation
of its affairs, and such decree or order shall have remained in force and
unstayed for a period of 90 consecutive days; or
(6) the Company shall institute proceedings for relief under any
applicable bankruptcy, insolvency or other similar applicable Federal or
State law now or hereafter in effect, or shall consent to the institution
of any such proceedings against it, or shall consent to the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of all or substantially all of its property, or
shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due, or
corporate action shall be taken by the Company in furtherance of any of the
aforesaid purposes; or
(7) any other Event of Default provided with respect to Securities of
that series.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% of principal amount of the Outstanding Securities
of that series may declare the principal amount (or, if the Securities of that
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all of the Securities
of that series to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates prescribed
therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waiver as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
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(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the rate
or rates prescribed therefor in such Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in such
judicial proceeding; and
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(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if
any) and interest, respectively.
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Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonably
satisfactory to it indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnify has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders of such
series shall have any right in any manner whatever by virtue of, or by availing
of, any provision of this Indenture to affect, disturb or prejudice the rights
of any other of such Holders or Holders of any other series, or to obtain or to
seek to obtain priority or preference over any other of such Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all of such Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any
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reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise, unless otherwise limited herein. The
assertion or employment of any right or remedy hereunder or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right to remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series; provided that, subject to the provisions of Section 601, the
Trustee shall have the right to decline to follow any such direction if the
Trustee being advised by counsel shall determine that the action so directed may
not lawfully be taken, or if the Trustee in good faith shall, by a responsible
officer or officers of the Trustee, determine that the proceeding so directed
would be illegal or involve it in personal liability or would be unduly
prejudicial to the rights of other Holders, and provided, further, that nothing
in this Indenture shall impair the right of the Trustee in its discretion to
take any action deemed proper by the Trustee and which is not inconsistent with
such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default
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hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
its, his or her acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the exercise of any power
herein granted to the Trustee, but will suffer and permit the exercise of every
such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
(a) Except as provided by subsection (b) of this Section,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of a series has
occurred and is continuing, the Trustee shall exercise with respect to
Securities of such series such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding
Securities of any series, relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Securities of such series; and
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(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Securities of any series, the Trustee shall transmit by mail to all
Holders of Securities of such series, as their names and addresses appear in the
Security Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series or in the payment of any sinking fund
installment with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interest of the Holders of Securities of such series; and
provided, further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof; and
provided, further, that in the case of any default of the character specified in
Section 501(1) with respect to Securities of such series, no such notice to
Holders shall be given until after the lapse of any applicable grace period with
respect to such default. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to Securities of such series.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
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(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel as to matters of law shall
be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(h) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(i) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and each agent, custodian and other Person employed
to act hereunder; and
(j) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be
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signed by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate previously
delivered and not superseded.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee or any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company in writing.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed upon by the Company and the Trustee for all services rendered by
it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and any predecessor Trustee for, and to
hold it harmless against, any loss, liability, damage, claim or expense
including taxes (other than taxes based upon, measured by or determined by
the income of the Trustee) incurred
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without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim whether asserted by the Company, any Holder or any other Person or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
The obligations of the Company pursuant to this Section shall constitute
additional indebtedness hereunder, shall survive the satisfaction and discharge
of this Indenture and resignation and removal of the Trustee, and shall be
secured by a lien prior to that of the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of (or premium, if any) or interest on the Securities.
Section 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the provisions of Section 310(b) of the Trust
Indenture Act. If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under this Indenture with
respect to Securities of more than one series.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any
person directly or indirectly controlling, controlled by, or under common
control with the Company shall serve as Trustee upon any Securities.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by
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a successor Trustee required by Section 611 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction at the expense of the Company for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611,
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become the successor Trustee with respect to the Securities of such series and
to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any holder who has been a bona fide Holder of a
Security of such series for at least six months, may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee rates, (2) if
the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or describable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust, that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any
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other such Trustee and that no Trustee shall be responsible for any notice given
to, or received by, or any act or failure to act on the part of any other
Trustee hereunder, and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates have no further responsibility for the exercise
of rights and powers or for the performance of the duties and obligations vested
in the Trustee under this Indenture, and each such successor Trustee without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee, to
the extent contemplated by such supplemental indenture, the property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
The Trustee is subject to Section 311(a) of the Trust Indenture Act,
excluding any creditor relationship listed in Section 311(b) of the Trust
Indenture Act. A Trustee who has resigned or been removed shall be subject to
Section 311(a) of the Trust Indenture Act to the extent indicated therein.
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Section 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee may
appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time (and upon
request by the Company shall) terminate the agency of an Authentication Agent by
giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage
prepaid, to all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
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The provisions of Section 308, 604 and 605 shall be applicable to each
Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities of
each series covered by such appointment may have endorsed thereon, in addition
to the Trustee's certificate of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK
By:
-------------------------------------------
As Authenticating Agent
By:
-------------------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to furnished to the Trustee
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar or Paying Agent.
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Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as "applicants") apply in
writing to the Trustee, and furnish to the Trustee reasonable proof that each
such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their rights
under this Indenture or under the Securities and is accompanied by a copy of the
form of proxy or other communication which such applicants propose to transmit,
then the Trustee shall, within five business days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Holders the form of proxy or other communication,
if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appears in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of
the Trustee, such mailing would be contrary to the best interest of the Holders
or would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
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(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
Within 60 days after each January 15 beginning with the January 15
following the date of this Indenture, and for so long as Securities remain
outstanding, the Trustee shall mail to the Holders of the Securities a brief
report dated as of such reporting date that complies with Section 313(a) of the
Trust Indenture Act (but if no event described in Section 313(a) of the Trust
Indenture Act has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with Section
313(b)(2) of the Trust Indenture Act. The Trustee shall also transmit by mail
all reports as required by Section 313(c) of the Trust Indenture Act and file
such reports as required by Section 313(d) of the Trust Indenture Act.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, such
information, documents and other reports, and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to the Trust Indenture Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other corporation
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
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(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation organized and existing under the laws of
the United States of America, any State thereof or the District of Columbia
and shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and interest
on all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation has been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
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(1) to evidence the succession of another corporation to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if covenants are to be for
the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit
of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any provisions
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture, provided such action shall not adversely affect the
interests of the Holders of Securities of any series in any material
respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities affected by such supplemental
indenture voting together as a single class, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner
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or eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section
502, or change any Place of Payment where, or the coin or currency in
which, any Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby; provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008 or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel and Officers' Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but
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shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with
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the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency. The Company hereby designates as a Place of Payment for each series of
Securities the Borough of Manhattan, The City of New York, and appoints the
Trustee at its Corporate Trust Office as Paying Agent in such city.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities of that series, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled so such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on Securities of that series in trust for the
benefit of the Persons entitled thereto until such sums have been paid to
such Person or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any) or interest on the Securities of
that series; and
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(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
And money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Section 1004. Maintenance of Corporate Existence.
Subject to the other provisions of this Indenture, the Company will, and
will cause each Subsidiary to, maintain its corporate existence and right to
carry on its business and duly procure all necessary renewals and extensions
thereof and use its best efforts to maintain, preserve and renew all such
rights, powers, privileges and franchises; provided, however, that nothing
herein contained shall be construed to prevent the Company or a Subsidiary, from
ceasing or omitting to exercise any rights, powers, privileges or franchises
(including, in the case of a Subsidiary, the corporate existence thereof) which
in the judgment of the Board of Directors of the Company or of such Subsidiary
can no longer be profitably exercised, or to prevent the liquidation of any
Subsidiary or the consolidation or merger of any Subsidiary or Subsidiaries with
or into any other Subsidiary or Subsidiaries and/or the Company.
Section 1005. Restrictions on Liens.
(a) The Company will not, nor will it permit any Domestic Subsidiary to,
issue, assume or guarantee any debt for money borrowed (hereinafter in this
Article Ten referred to as "Debt") secured by any mortgage, security interest,
pledge, lien or other encumbrance
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(hereinafter called "mortgage" or "mortgages") upon any Principal Property of
the Company or of a Domestic Subsidiary or indebtedness of any Domestic
Subsidiary (whether such Principal Property or indebtedness is now owned or
hereinafter acquired) without in any such case effectively securing,
concurrently with the issuance, assumption or guaranty of any such Debt, the
Securities (together with, if the Company shall so determine, any other
indebtedness of or guaranteed by the Company or such Domestic Subsidiary ranking
equally with the Securities and then existing or thereafter created) equally and
ratably with such Debt; provided, however, that the foregoing restrictions shall
not apply to
(i) mortgages on any property acquired, constructed or improved by the
Company or any Domestic Subsidiary after the date of this Indenture which
are created or assumed contemporaneously with, or within 24 months days
after, such acquisition, or completion of such construction or improvement,
or within six months thereafter pursuant to a firm commitment for financing
arranged with a lender or investor within such 24-month period, to secure
or provide for the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement incurred after the
date of this Indenture, or, in additional to mortgages contemplated by
clauses (ii) and (iii) below, mortgages on any property existing at the
time of acquisition thereof; provided that the mortgage shall not apply to
any property theretofore owned by the Company or any Domestic Subsidiary
other than, in the case of any such construction or improvement, any
theretofore unimproved real property on which the property so constructed,
or the improvement, is located;
(ii) mortgages on any property, shares of stock, or indebtedness
existing at the time of acquisition thereof from a corporation which is
merged with or into the Company or a Domestic Subsidiary;
(iii) mortgages on property of a corporation existing at the time such
corporation becomes a Domestic Subsidiary;
(iv) mortgages to secure Debt of a Domestic Subsidiary to the Company
or another Domestic Subsidiary;
(v) mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, to secure
partial progress, advance or other payments pursuant to any contract or
statute or to secure any indebtedness incurred for the purpose of financing
all or any part of the purchase price or the cost of constructing or
improving the property subject to such mortgages;
(vi) mortgages on timberlands in connection with an arrangement under
which the Company or a Domestic Subsidiary is obligated to cut or pay for
timber in order to provide the secured party with a specified amount of
money, however determined;
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(vii) mortgages securing tax exempt debt of the Company or a Domestic
Subsidiary; or
(viii) mortgages for the sole purpose of extending, renewing or
replacing in whole or in part Debt secured by any mortgage referred to in
the foregoing clauses (i) to (vii), inclusive, or in this clause (viii) or
any mortgage existing on the date of this Indenture; provided, however,
that the principal amount of Debt secured thereby shall not exceed the
principal amount of Debt so secured at the time of such extension, renewal
or replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the mortgage so
extended, renewed or replaced (plus improvements on such property).
(b) The provisions of subsection (a) of this Section 1005 shall not apply
to the issuance, assumption or guarantee by the Company or any Domestic
Subsidiary of Debt secured by a mortgage which would otherwise be subject to the
foregoing restrictions up to an aggregate amount which, together with all other
Debt of the Company and its Domestic Subsidiaries secured by mortgages (other
than mortgages permitted by subsection (a) of this Section 1005) which would
otherwise be subject to the foregoing restrictions and the Value of all Sale and
Lease-back Transactions in existence at such time (other than any Sale and
Lease-back Transaction which, if such Sale and Lease-back Transaction had been a
mortgage, would have been permitted by clause (i) of Section 1005(a) and other
than Sale and Lease-back Transactions as to which application of amounts have
been made in accordance with clause (b) of Section 1006) does not at the time
exceed 15% of Consolidated Net Tangible Assets.
(c) If at any time the Company or any Domestic Subsidiary shall issue,
assume or guarantee any Debt secured by any mortgage and if paragraph (a) of
this Section 1005 requires that the Securities be secured equally and ratably
with such Debt, the Company will promptly deliver to the Trustee
(i) an Officers' Certificate stating that the covenant of the Company
contained in paragraph (a) of this Section 1005 has been complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has been
complied with, and that any instruments executed by the Company in the
performance of such covenant comply with the requirements of such covenant.
In the event that the Company shall hereafter secure the Securities equally
and ratably with any other obligation or indebtedness pursuant to the provisions
of this Section 1005, the Trustee is hereby authorized to enter into an
indenture or agreement supplemental hereto and to take such action, if any, as
it may deem advisable to enable it to enforce effectively the rights of the
Holders of the Securities so secured, equally and ratably with such other
obligation or indebtedness.
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Section 1006. Restrictions on Sale and Lease-Back Transactions.
The Company will not, nor will it permit any Domestic Subsidiary to, enter
into any Sale and Lease-back Transaction unless the net proceeds of such sale
are at least equal to the fair value (as determined by the Board of Directors)
of such Principal Property and either (a) the Company or such Domestic
Subsidiary would be entitled, pursuant to the provisions of (1) clause (i) of
paragraph (a) of Section 1005 or (2) paragraph (b) of Section 1005 hereof, to
incur Debt secured by a mortgage on the Principal Property to be leased without
equally and ratably securing any Security, or (b) the Company shall, and in any
such case the Company covenants that it will, within 270 days of the effective
date of any such arrangement (or in the case of (ii) below, within six months
thereafter pursuant to a firm purchase commitment entered into within such
270-day period), apply an amount equal to the fair value (as so determined) of
such Principal Property (i) to the payment or other retirement of Funded Debt
incurred, assumed or guaranteed by the Company which Funded Debt (or the
guarantee thereof) ranks senior to or pari passu with the Securities or of
Funded Debt incurred or assumed by any Domestic Subsidiary (other than, in
either case, Funded Debt owned by the Company or any Domestic Subsidiary) or
(ii) to the purchase of Principal Property (other than the Principal Property
involved in such sale).
Section 1007. Officers' Certificate as to Default.
The Company will, so long as any of the Securities are outstanding:
(1) deliver to the Trustee, forthwith upon becoming aware of any
default or defaults in the performance of any covenant, agreement or
condition contained in this Indenture, an Officers' Certificate specifying
such default or defaults, and
(2) deliver to the Trustee on or before October 1 of each year,
beginning with the year 2002, an Officers' Certificate signed by the Chief
Executive Officer, Chief Financial Officer or Chief Accounting Officer
stating that in the course of the performance by the signers of their
duties as officers of the Company they would normally obtain knowledge of
any default by the Company in the performance of any covenant, agreement or
condition contained in this Indenture, stating whether or not they have
obtain knowledge of any such default and, if so, specifying each such
default of which the signers have knowledge and the nature and status
thereof.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1004 to 1008, inclusive, with
respect to all Outstanding Securities if before the time for such compliance the
Holders of at least a majority in aggregate principal amount of the Outstanding
Securities voting together as a single class shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived and,
until such waiver shall become
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effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 1009. Further Assurance.
From time to time whenever reasonably demanded by the Trustee the Company
will make, execute and deliver or cause to be made, executed and delivered any
and all such further and other instruments and assurances as may be reasonably
necessary or proper to carry out the intention of or to facilitate the
performance of the terms of this Indenture or to secure the rights and remedies
hereunder of the holders of the Securities.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for Securities of any series) in
accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of such series to be redeemed. In the case
of any redemption of Securities prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by pro rata or lot and which
may provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series or a denomination
larger than the minimum authorized denomination for Securities of that series.
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The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register, but failure to give such notice by mailing in the manner
herein provided to the Holder of any Security designated for redemption as a
whole or in part, or any defect in the notice to any such Holder, shall not
affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
All notices of redemption shall state the Securities being redeemed
(including the CUSIP number) and the following:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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Any notice that is mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives the notice.
Section 1105. Deposit of Redemption Price.
Prior to 10:00 am (NYC time) on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provision of this Article shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such
series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, (1) deliver Outstanding Securities of such series (other than any
previously called for redemption) and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case
provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner
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specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series.
ARTICLE FOURTEEN
GUARANTEES
The provisions of this Article Fourteen shall apply only to such series of
Securities that are explicitly entitled to such benefit pursuant to the Board
Resolution, Officers' Certificate or supplemental indenture establishing the
terms of such series of Securities.
Section 1401. Guarantees.
(a) Subject to the first sentence of this Article Fourteen, each Guarantor
unconditionally guarantees, on a joint and several basis, to each Holder of
Securities of the applicable series and to the Trustee and its successors and
assigns, (i) the full and punctual payment of all monetary obligations of the
Company under this Indenture with respect to the Securities of the applicable
series (including obligations to the Trustee) and (ii) the full and punctual
performance within applicable grace periods of all other obligations of the
Company under this Indenture with respect to the Securities of the applicable
series. Each Guarantor further agrees that its obligations hereunder shall be
unconditional irrespective of the absence or existence of any action to enforce
the same, the recovery of any judgment against the Company (except to the extent
such judgment is paid) or any waiver or amendment of the provisions of this
Indenture or the Securities to the extent that any such action or any similar
action would otherwise constitute a legal or equitable discharge or defense of
such Guarantor (except that such waiver or amendment shall be effective in
accordance with its terms).
(b) Each Guarantor further agrees that its Guarantee constitutes a
guarantee of payment, performance and compliance and not merely of collection.
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(c) Each Guarantor further agrees to waive presentment to, demand of
payment from and protest to the Company of its Guarantee, and also waives
diligence, notice of acceptance of its Guarantee, presentment, demand for
payment, notice of protest for nonpayment, the filing of claims with a court in
the event of merger or bankruptcy of the Company and any right to require a
proceeding first against the Company or any other Person. The obligations of a
Guarantor shall not be affected by any failure or policy on the part of the
Trustee to exercise any right or remedy under this Indenture or the Securities
of the applicable series.
(d) The obligation of a Guarantor to make any payment hereunder may be
satisfied by causing the Company or another Guarantor to make such payment. If
any Holder of any Security of the applicable series or the Trustee is required
by any court or otherwise to return to the Company or any Guarantor or any
custodian, trustee, liquidator or other similar official acting in relation to
any of the Company or any such Guarantor any amount paid by any of them to the
Trustee or such Holder, any applicable Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect.
(e) Each Guarantor also agrees to pay any and all costs and expenses
(including reasonable attorneys' fees) incurred by the Trustee or any Holder of
Securities of the applicable series in enforcing any of their respective rights
under its Guarantee.
(f) Any term or provision of this Guarantee to the contrary
notwithstanding, the maximum aggregate amount of a Guarantor's Guarantee shall
not exceed the maximum amount that can be hereby guaranteed without rendering
this Guarantee as it relates to such Guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
Section 1402. Termination of Guarantee.
Each Guarantee (taken individually) shall be automatically released and
shall terminate upon (a) the merger of the respective Guarantor with or into
another Obligor, (b) the consolidation of the respective Guarantor with another
Obligor, (c) the transfer of all or substantially all of the assets of the
respective Guarantor to another Obligor, or (d) the termination of a Guarantor's
guarantee of the Company's obligations under each of the Bank Credit Facilities.
For the purposes of this Section 1402, "Bank Credit Facilities" means (i) the
Five-Year Credit Agreement, dated as of December 20, 2001, among the Company and
the lenders and agents listed therein, with The Bank of New York, as
administrative agent and Bank One, NA, as syndication agent, as amended,
supplemented or otherwise modified, (ii) the 364-Day Credit Agreement, dated as
of December 20, 2001, among the Company and the lenders and agents listed
therein, with The Bank of New York, as administrative agent and Bank One, NA, as
syndication agent, as amended, supplemented or otherwise modified, and (iii) any
amendments, renewals, refundings, refinancings, extensions, modifications or
replacements with respect to any of the foregoing.
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Section 1403. Amendments And Modifications.
This Article Fourteen may be amended or modified, as it relates to any
Guarantor, with the consent of the Holders of a majority in aggregate principal
amount of all Outstanding Securities entitled to the benefits of a Guarantee
from such Guarantor, voting together as a single class. However, except as
provided in Section 1402, any Guarantee, once issued, may not be released
without the consent of each Holder of Outstanding Securities affected hereby
without first obtaining the consent of each such Holder.
Section 1404. Guarantee Notation.
Securities of any series that are entitled to the benefits of a Guarantee
pursuant to this Article Fourteen shall be evidenced by a Notation of Guarantee
substantially in the form of Exhibit A hereto.
This instrument may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
MEADWESTVACO CORPORATION
BY:
-----------------------------------------------
NAME:
TITLE:
Attest:
_______________________________________
Assistant Secretary
WESTVACO CORPORATION, AS GUARANTOR
BY:
----------------------------------------------
NAME:
TITLE:
Attest:
_________________________________________
Assistant Secretary
THE MEAD CORPORATION, AS GUARANTOR
BY:
-----------------------------------------------
NAME:
TITLE:
Attest:
_________________________________________
Assistant Secretary
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THE BANK OF NEW YORK
Trustee
By:
-------------------------------------------
NAME:
TITLE:
-68-
EXHIBIT A
FORM OF NOTATION OF GUARANTEE
RELATING TO
[INSERT DESIGNATION OF GUARANTEED SECURITIES]
For value received, [each of] the undersigned has [, jointly and
severally,] unconditionally guaranteed, to the extent set forth in the Indenture
and subject to the provisions in the Indenture dated as of [ ], 2002 (the
"Indenture") by and among MeadWestvaco Corporation ("the Company"), the
Guarantors listed on the signature page thereto, if any, and The Bank of New
York as trustee (the "Trustee"), (a) the full and punctual payment of all
monetary obligations of the Company under the Indenture with respect to the
Securities of the applicable series (including obligations to the Trustee) and
(b) the full and punctual performance within applicable grace periods of all
other obligations of the Company under the Indenture with respect to the
Securities of the applicable series. Each Guarantor further agrees that its
obligations hereunder shall be unconditional irrespective of the absence or
existence of any action to enforce the same, the recovery of any judgment
against the Company (except to the extent such judgment is paid) or any waiver
or amendment of the provisions of this Indenture or the Securities of the
applicable series to the extent that any such action or any similar action would
otherwise constitute a legal or equitable discharge or defense of such Guarantor
(except that such waiver or amendment shall be effective in accordance with its
terms). The obligations of the undersigned to the Holders of Securities of the
applicable series and to the Trustee described in this Notation of Guarantee are
expressly set forth in Article Fourteen of the Indenture and the Board
Resolution, Officers' Certificate or supplemental indenture relating to the
applicable series of Securities, and are qualified in their entirety by
reference thereto. Each Holder of a Security of the applicable series, by
accepting the same, (a) agrees to and shall be bound by such provisions and (b)
appoints the Trustee attorney-in-fact of such Holder for such purpose.
The terms of the Indenture, including, without limitation, Article Fourteen
of the Indenture and any applicable Board Resolution, Officers' Certificate or
supplemental indenture are incorporated herein by reference. Capitalized terms
used herein shall have the meanings assigned to them in the Indenture unless
otherwise indicated.
[Name of Guarantor]
By:
-------------------------------------------
Name:
Title:
Attest:
_________________________________________
Assistant Secretary
A-1
[Add additional signature block and attestation block if necessary]
-2-
EXHIBIT 12(a)
MEADWESTVACO CORPORATION AND CONSOLIDATED SUBSIDIARY COMPANIES
COMPUTATION OF PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
(in millions, except for ratio)
For the year ended October 31
2001
------------
Combined Earnings:
Pre-tax income from continuing operations before
income / (loss) from equity investees $ 9.5
Interest and debt 321.8
expense
Portion of rental expense deemed to be 45.8
interest
Amortization of capitalized interest 18.3
Distributed income of equity investee 5.7
------------
Total Earnings $401.0
============
Combined fixed charges:
Interest and debt expense $321.8
Capitalized interest 8.0
Portion of rental expense deemed to be interest* 45.8
------------
Total Fixed Charges $375.6
============
Ratio of earnings to fixed charges 1.07x
============
This pro forma ratio of earnings to fixed charges was prepared using the
unaudited pro forma financial data filed in the MeadWestvaco Current Report on
Form 8-K/A dated March 8, 2002.
* Portion of rental expense deemed to be interest represents one-third of total
rent expense, which management believes is a reasonable approximation of the
interest factor.
EXHIBIT 12(b)
THE MEAD CORPORATION AND CONSOLIDATED SUBSIDIARY COMPANIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
(In millions, except for ratio)
For the year ended December 31
Earnings: 1997 1998 1999 2000 2001
- -------- ---------- ---------- ---------- ---------- ----------
Pre-tax income from continuing
operations before income / (loss)
from equity investees................... $ 242.0 $ 225.6 $ 271.9 $ 235.3 $ (57.0)
Interest and debt expense.................. 98.2 109.0 105.1 121.0 110.6
Portion of rental expense deemed to
be interest*............................ 16.6 17.2 21.1 25.0 27.5
Amortization of capitalized interest....... 5.0 5.3 5.9 6.2 6.1
Distributed income of equity investee...... 11.9 20.3 27.1 15.5 5.7
---------- ---------- ---------- ---------- ----------
Total Earnings $ 373.7 $ 377.4 $ 431.1 $ 403.0 $ 92.9
========== ========== ========== ========== ==========
Fixed charges:
Interest and debt expense.................. $ 98.2 $ 109.0 $ 105.1 $ 121.0 $ 110.6
Capitalized interest....................... 9.2 6.3 2.8 1.6 0.7
Portion of rental expense deemed to
be interest*............................ 16.6 17.2 21.1 25.0 27.5
---------- ---------- ---------- ---------- ----------
Total Fixed Charges $ 124.0 $ 132.5 $ 129.0 $ 147.6 $ 138.8
========== ========== ========== ========== ==========
Ratio of earnings to fixed charges......... 3.0x 2.8x 3.3x 2.7x
============ =========== =========== =========== ==========
Deficiency in earnings necessary to
cover fixed charges..................... $ (45.9)
* Portion of rental expense deemed to be interest represents one-third of total
rent expense, which management believes is a reasonable approximation of the
interest factor.
EXHIBIT 12(c)
WESTVACO CORPORATION AND CONSOLIDATED SUBSIDIARY COMPANIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
(In millions, except ratio)
For the year ended December 31
1997 1998 1999 2000 2001
--------- -------- --------- -------- ---------
Earnings:
--------
Pre-tax income from continuing
operations before income / (loss) $ 246.6 $ 204.4 $ 148.0 $ 403.6 $ 118.5
from equity investees..............
Interest and debt expense............. 93.3 110.2 123.5 192.1 207.6
Portion of rental expense deemed to
be interest*....................... 12.7 13.4 12.8 16.1 18.3
Amortization of capitalized interest.. 14.3 13.9 12.1 12.8 12.2
--------- -------- --------- -------- ---------
Total Earnings $ 366.9 $ 341.9 $ 296.4 $ 624.6 $ 356.6
========= ======== ========= ======== =========
Fixed charges:
-------------
Interest and debt expense............. $ 93.3 $ 110.2 $ 123.5 $ 192.1 $ 207.6
Capitalized interest.................. 25.9 20.7 8.9 5.6 7.3
Portion of rental expense deemed to
be interest*....................... --------- ---------- --------- ---------- ----------
12.7 13.4 12.8 16.1 18.3
--------- -------- --------- -------- ---------
Total Fixed Charges $ 131.9 $ 144.3 $ 145.2 $ 213.8 $ 233.2
========= ======== ========= ======== =========
Ratio of earnings to fixed charges 2.8x 2.4x 2.0x 2.9x 1.5x
* Portion of rental expense deemed to be interest represents one-third of total
rent expense, which management believes is a reasonable approximation of the
interest factor.
EXHIBIT 23(a)
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our report dated January 29, 2002 (which expresses an unqualified
opinion and includes an explanatory paragraph relating to the company's change
in its method of accounting for derivative instruments effective January 1, 2001
and the company's change in its method of revenue recognition for provisions
included in certain sales agreements effective January 1, 2000), which is
included in the Current Report on Form 8-K/A dated March 8, 2002 of MeadWestvaco
Corporation. We also consent to the incorporation by reference of our report on
MW Holding Corporation dated September 27, 2001, which is included in the Joint
Proxy Statement and Prospectus of Westvaco Corporation and The Mead Corporation.
We also consent to the incorporation by reference of our report dated May 7,
2001, accompanying the financial statements of The Mead 401(k) Plan included on
Form 10-K/A Amendment No. 1 to the Annual Report on Form 10-K of The Mead
Corporation for the year ended December 31, 2000. We also consent to the
incorporation by reference of our report dated November 8, 2001, accompanying
the financial statements of The Mead Corporation Employee Stock Purchase Plan
included on Form 10-K/A Amendment No. 2 to the Annual Report on Form 10-K of The
Mead Corporation for the year ended December 31, 2000. We also consent to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Dayton, Ohio
March 6, 2002
EXHIBIT 23(b)
CONSENT OF PRICEWATERHOUSECOOPERS LLP
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated November 20, 2001 relating to the
Westvaco Corporation consolidated financial statements, which appears in
Westvaco Corporation's Annual Report on Form 10-K for the year ended October 31,
2001. We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, New York
March 6, 2002
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
--------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
--------------
MEADWESTVACO CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 31-1797999
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One High Ridge Park
Stamford, Connecticut 06905
(Address of principal executive offices) (Zip code)
WESTVACO CORPORATION
(Exact name of obligor as specified in its charter)
Delaware 31-1466285
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
One High Ridge Park
Stamford, Connecticut 06905
(Address of principal executive offices) (Zip code)
THE MEAD CORPORATION
(Exact name of obligor as specified in its charter)
Ohio 31-0535759
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
(Address of principal executive offices) (Zip code)
--------------
Debt Securities
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which it
is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29
under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly
Irving Trust Company) as now in effect, which contains the authority to
commence business and a grant of powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration
Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed
with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit
6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published pursuant
to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 7th day of March, 2002.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
-----------------------
Name: MARY LAGUMINA
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business September 30,
2001, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and $3,238,092
currency and coin.....................
Interest-bearing balances............... 5,255,952
Securities:
Held-to-maturity securities............. 127,193
Available-for-sale securities........... 12,143,488
Federal funds sold and Securities 281,677
purchased under agreements to resell....
Loans and lease financing receivables:
Loans and leases held for sale.......... 786
Loans and leases, net of unearned
income...............46,206,726
LESS: Allowance for loan and
lease losses............607,115
Loans and leases, net of unearned 45,599,611
income and allowance..................
Trading Assets............................. 9,074,924
Premises and fixed assets (including 783,165
capitalized leases).....................
Other real estate owned.................... 935
Investments in unconsolidated subsidiaries 200,944
and associated companies................
Customers' liability to this bank on 311,521
acceptances outstanding.................
Intangible assets..........................
Goodwill................................ 1,546,125
Other intangible assets................. 8,497
Other assets............................... 8,761,129
------------
Total assets............................... $87,334,039
===========
S-8
LIABILITIES
Deposits:
In domestic offices..................... $28,254,986
Noninterest-bearing..................... 10,843,829
Interest-bearing........................ 17,411,157
In foreign offices, Edge and Agreement 31,999,406
subsidiaries, and IBFs................
Noninterest-bearing..................... 1,006,193
Interest-bearing........................ 30,993,213
Federal funds purchased and securities 6,004,678
sold under agreements to repurchase.....
Trading liabilities........................ 2,286,940
Other borrowed money:
(includes mortgage indebtedness and
obligations under capitalized leases)....... 1,845,865
Bank's liability on acceptances executed
and outstanding......................... 440,362
Subordinated notes and debentures.......... 2,196,000
Other liabilities.......................... 7,606,565
-----------
Total liabilities.......................... $80,634,802
===========
EQUITY CAPITAL
Common stock............................... 1,135,284
Surplus.................................... 1,050,729
Retained earnings.......................... 4,436,230
Accumulated other comprehensive income......... 76,292
Other equity capital components................ 0
Total equity capital....................... 6,698,535
------------
Total liabilities and equity capital....... $87,334,039
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Directors
Thomas A. Renyi
Gerald L. Hassell
Alan R. Griffith
- --------------------------------------------------------------------------------
-2-