EXHIBIT 4.2
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MW CUSTOM PAPERS, INC.
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
______________________________
Fifth Supplemental Indenture
Dated as of December 31, 2002
______________________________
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FIFTH SUPPLEMENTAL INDENTURE (this "Fifth Supplemental Indenture"), dated
as of December 31, 2002, between MW CUSTOM PAPERS, INC., a Delaware corporation
(the "Company"), and DEUTSCHE BANK TRUST COMPANY AMERICAS (formerly known as
Bankers Trust Company), a New York banking corporation, as trustee (the
"Trustee").
WHEREAS, THE MEAD CORPORATION, an Ohio corporation ("Mead"), has executed
and delivered to the Trustee an Indenture (the "Indenture"), dated as of July
15, 1982, as amended from time to time, providing for the issuance and sale by
Mead from time to time of its unsecured debentures, notes or other evidences of
indebtedness (the "Securities", which term shall include any Securities issued
under the Indenture after the date hereof);
WHEREAS, on December 31, 2002, pursuant to Mead's corporate restructuring
plan, the Company and Mead shall enter into a transaction resulting in Mead
being merged with and into the Company;
WHEREAS, Section 801(1) of the Indenture requires the Company, after Mead
has been merged into the Company, to expressly assume, by supplemental
indenture, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the obligations and covenants of Mead to the Holders of the Securities
(the "Successor Obligations");
WHEREAS, the Company proposes in and by this Fifth Supplemental Indenture
to supplement and amend the Indenture in certain respects as it applies to
Securities issued thereunder;
WHEREAS, the Company has requested that the Trustee execute and deliver
this Fifth Supplemental Indenture and all requirements necessary to make this
Fifth Supplemental Indenture a valid instrument in accordance with its terms and
to make the Successor Obligations the valid obligations of the Company, and the
execution and delivery of this Fifth Supplemental Indenture has been duly
authorized in all respects.
NOW, THEREFORE, the Company and the Trustee hereby agree that the following
Sections of this Fifth Supplemental Indenture supplement the Indenture with
respect to Securities issued thereunder:
SECTION 1. Definitions. Capitalized terms used herein and not defined
herein have the meanings ascribed to such terms in the Indenture.
SECTION 2. Representations of the Company. The Company represents and
warrants for the benefit of the Trustee as follows: (i) it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and (ii) the
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execution, delivery and performance by it of this Fifth Supplemental Indenture
have been authorized and approved by all necessary corporate action on the part
of it.
SECTION 3. Assumption and Agreements. (a) The Company hereby expressly
assumes all of the obligations of Mead under the Indenture and the Securities,
including, but not limited to, (i) the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities when due and (ii)
the full and punctual performance of every covenant of and all other obligations
under the Indenture on the part of Mead to be performed or observed under the
Indenture and the Securities.
(b) The Company further agrees that as of the date of this Fifth
Supplemental Indenture, the Company hereby succeeds to and is substituted for
Mead as the "Company" under the Indenture, with the same effect as if the
Company had been an original party to the Indenture.
SECTION 4. This Fifth Supplemental Indenture. This Fifth Supplemental
Indenture shall be construed as supplemental to the Indenture and shall form a
part of it, and the Indenture is hereby incorporated by reference herein and
each is hereby ratified, approved and confirmed.
SECTION 5. GOVERNING LAW. THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE
GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 6. Counterparts. This Fifth Supplemental Indenture may be executed
in two or more counterparts, each of which shall constitute an original, but all
of which when taken together shall constitute but one instrument.
SECTION 7. Headings. The headings of this Fifth Supplemental Indenture are
for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 8. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Company, and not by the Trustee, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Fifth Supplemental Indenture.
SECTION 9. Separability. In case one or more of the provisions contained in
this Fifth Supplemental Indenture or in the Securities shall for any reason be
held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
Fifth Supplemental Indenture or of the Securities, but this Fifth Supplemental
Indenture and the Securities shall be construed as if such invalid or illegal or
unenforceable provision had never been contained herein or therein.
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SECTION 10. Successors and Assigns. All agreements of the Company in this
Fifth Supplemental Indenture and the Securities shall bind its successors and
all agreements of the Trustee in this Fifth Supplemental Indenture shall bind
its successors.
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed by their respective authorized officers as of the
date first written above.
MW CUSTOM PAPERS, INC.
By: /s/ Karen R. Osar
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Name: Karen R. Osar
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Trustee
By: /s/ Irina Golovashchuk
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Name: Irina Golovashchuk
Title: Associate