SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 (d) of the
Securities Exchange Act of 1934
October 20, 1997
------------------------------------------------
Date of Report (Date of earliest event reported)
THE MEAD CORPORATION
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(Exact name of Registrant as specified in its charter)
Ohio 1-2267 31-0535759
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(State of Commission (IRS Employer
Incorporation) File Identification
Number)
Mead World Headquarters, Courthouse Plaza, Northeast
Dayton, Ohio 45463
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(Address of principal executive offices)
937-495-6323
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(Registrant's telephone No.)
Not Applicable
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(Former name or former address, if changed since last report)
ITEM I. CHANGES IN CONTROL OF REGISTRANT
Not applicable.
ITEM II. ACQUISITION OR DISPOSITION OF ASSETS
Not applicable.
ITEM III. BANKRUPTCY OR RECEIVERSHIP
Not applicable.
ITEM IV. CHANGES IN REGISTRANT'S CERTIFYING ACCOUNTANT
Not applicable.
ITEM V. OTHER EVENTS
On October 20, 1997, The Mead Corporation (the
"Company") entered into a Distribution Agreement,
dated October 20, 1997, with Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Agents"), relating to the sale
by the Company through the Agents from time to time
of up to $154,000,000 aggregate offering price of
the Company's Medium-Term Notes, Series A Due Nine
Months to Thirty Years from Date of Issue (the
"Notes"). The Notes are to be issued under the
Indenture, dated as of October 20, 1997, between
the Company and Citibank N.A., as trustee.
ITEM VI. RESIGNATIONS OF REGISTRANT'S DIRECTORS
Not applicable.
ITEM VII. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial Statements:
Not applicable.
(b) Pro Forma Financial Information:
Not applicable.
(c) Exhibits:
1.2 Distribution Agreement, dated October
20, 1997, between The Mead
Corporation and Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
4(g) Indenture, dated as of October 20,
1997, between The Mead Corporation
and Citibank, N.A.
4(g)-1 Form of Fixed Rate Note.
4(g)-2 Form of Floating Rate Note.
5(a) Opinion of David L. Santez, Assistant
Secretary and Associate General
Counsel.
5(b) Opinion of Skadden, Arps, Slate,
Meagher & Flom LLP, special counsel
to the Registrant.
ITEM VIII. CHANGES IN FISCAL YEAR
Not applicable.
Signatures
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
The Mead Corporation
(Registrant)
Date: October 27, 1997 /s/ David L. Santez
Dayton, Ohio David L. Santez, Esq.
Assistant Secretary and
Associate General Counsel
EXHIBIT INDEX
Page
1.2 Distribution Agreement, dated October 20,
1997, between The Mead Corporation and
Goldman, Sachs & Co. and Merrill Lynch,
Pierce, Fenner & Smith Incorporated.
4(g) Indenture, dated as of October 20, 1997,
between The Mead Corporation and
Citibank, N.A.
4(g)-1 Form of Fixed Rate Note.
4(g)-2 Form of Floating Rate Note.
5(a) Opinion of David L. Santez, Assistant
Secretary and Associate General Counsel.
5(b) Opinion of Skadden, Arps, Slate, Meagher
& Flom LLP, special counsel to the
Registrant.
THE MEAD CORPORATION
$154,000,000
Medium-Term Notes, Series A
Distribution Agreement
October 20, 1997
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Dear Sirs:
The Mead Corporation, an Ohio corporation (the
"Company"), proposes to issue and sell from time to time
its Medium-Term Notes, Series A (the "Securities") at an
aggregate initial public offering price of up to
$154,000,000 and agrees with each of you (individually,
an "Agent", and collectively, the "Agents") as set forth
in this Agreement.
Subject to the terms and conditions stated
herein and to the reservation by the Company of the right
to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the
Company for the purpose of soliciting and receiving
offers to purchase Securities from the Company pursuant
to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to
sell Securities directly to any Agent as principal, it
will enter into a separate agreement (each a "Terms
Agreement") which may be either (i) a written agreement,
substantially in the form of Annex I hereto, or (ii) an
oral agreement between such Agent and the Company
confirmed in writing by such Agent to the Company,
relating to such sale in accordance with Section 2(b)
hereof.
The Securities will be issued under the
Indenture, dated as of October 20, 1997 (the
"Indenture"), between the Company and Citibank, N.A., as
Trustee (the "Trustee"). The Securities shall have the
maturity ranges, interest rates, if any, redemption
provisions and other terms set forth in the Prospectus
referred to below as it may be amended or supplemented
from time to time. The Securities will be issued, and
the terms and rights of holders thereof established, from
time to time by the Company in accordance with the
Indenture.
1. The Company represents and warrants to, and
agrees with, each Agent that:
(a) Three registration statements on Form S-3
(File Nos. 333-16135, 33-51337 and 33-43994), including a
prospectus for use in connection with the Securities
pursuant to Rule 429 under the Securities Act of 1933, as
amended (the "Act"), in respect of $850,000,000 aggregate
amount of securities of the Company, including the
Securities, have been filed with the Securities and
Exchange Commission (the "Commission"); such registration
statements and any post-effective amendment thereto, each
in the form heretofore delivered or to be delivered to
such Agent, excluding exhibits to such registration
statements, but including all documents incorporated by
reference in the prospectus contained in the latest
registration statement have been declared effective by
the Commission in such form; no other document with
respect to such registration statements (other than a
document incorporated by reference therein) has
heretofore been filed or transmitted for filing with the
Commission (other than the Prospectus Supplement dated
February 4, 1997 and pricing supplements filed pursuant
to 424(b) of the rules and regulations of the Commission
under the Act, relating to the issuance of medium-term
notes); and no stop order suspending the effectiveness of
any such registration statements has been issued and no
proceeding for that purpose has been instituted or
threatened by the Commission (any preliminary prospectus
included in the latest registration statement or filed
with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act, being
hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including
all exhibits thereto and the documents incorporated by
reference in the prospectus contained in such
registration statement at the time such part of such
registration statement became effective but excluding the
two Form T-1s filed as an exhibit to the latest
registration statement, each as amended at the time such
part of such registration statement became effective,
being hereinafter collectively called the "Registration
Statement"; the prospectus (including the prospectus
supplement) relating to the Securities, in the form in
which it has most recently been filed, or transmitted for
filing, with the Commission on or prior to the date of
this Agreement being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to
the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the
terms of the particular issue of the Securities (a
"Pricing Supplement"), shall be deemed to refer to and
include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be,
under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or the Prospectus, as the
case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant
to Sections 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is
incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to and include the
Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with
Section 4(a) hereof) in relation to Securities sold
pursuant to this Agreement, in the form in which it is
filed with the Commission pursuant to Rule 424(b) under
the Act and in accordance with Section 4(a) hereof,
including any documents incorporated by reference therein
as of the date of such filing);
(b) The documents incorporated by reference in
the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all
material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and any further
documents so filed and incorporated by reference in the
Prospectus, or any further amendment or supplement
thereto, when such documents become effective or are
filed with the Commission, as the case may be, will
conform in all material respects to the requirements of
the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in
reliance upon and in conformity with information
furnished in writing to the Company by any Agent
expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of
Securities;
(c) The Registration Statement and the
Prospectus conform, and any further amendments or
supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the
requirements of the Act and the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and the
rules and regulations of the Commission thereunder and
the Registration Statement and any further amendment
thereto and the Prospectus do not and will not, as of the
effective date of the Registration Statement and any
further amendment thereto contain an untrue statement of
a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; and the Prospectus and any
further amendment or supplement thereto, as of its date,
does not and will not contain an untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
provided, however, that this representation and warranty
shall not apply to any statements or omissions made in
reliance upon and in conformity with information
furnished in writing to the Company by any Agent
expressly for use in the Prospectus as amended or
supplemented to relate to a particular issuance of
Securities;
(d) Neither the Company nor any of its
subsidiaries or Material Affiliates (as hereinafter
defined) has sustained since the date of the latest
audited financial statements included or incorporated by
reference in the Prospectus any material loss or
interference with its business from fire, explosion,
flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has
not been any incurrence by the Company or its
subsidiaries or its Material Affiliates of any material
liabilities or obligations, direct or contingent, or any
material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any Material
Affiliates or any material adverse change, or any
development involving a prospective material adverse
change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries as a whole
or any of its Material Affiliates, otherwise than as set
forth or contemplated in the Prospectus;
(e) The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Ohio, with corporate power
and authority to own its properties and conduct its
business as described in the Prospectus, and the Company
has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the
laws of each other jurisdiction in which the conduct of
its business or the ownership of its property requires
such qualification;
(f) The Company has an authorized
capitalization as set forth in the Prospectus, and all of
the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully
paid and non-assessable, and all of the issued shares of
capital stock of each subsidiary and the capital stock of
each Material Affiliate owned by the Company have been
duly and validly authorized and issued and are fully paid
and non-assessable, and (except for directors' qualifying
shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or
claims other than agreements relating to joint venture
Companies;
(g) The Securities have been duly authorized,
and, when Securities are issued and delivered pursuant to
this Agreement and any Terms Agreement, such Securities
will have been duly executed, authenticated, issued and
delivered and will constitute valid and binding
obligations of the Company, enforceable against the
Company in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity
principles, and entitled to the benefits provided by the
Indenture, which will be substantially in the form
incorporated by reference in the Prospectus; the
Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the
Trust Indenture Act and, constitutes a valid and legally
binding instrument of the Company, enforceable against
the Company in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or
affecting creditors' rights and to general equity
principles; and the Indenture conforms, and the
Securities of any particular issuance of Securities will
conform, to the descriptions thereof in the Prospectus as
amended or supplemented to relate to such issuance of
Securities;
(h) The issue and sale of the Securities and
the compliance by the Company with all of the provisions
of the Securities, the Indenture, this Agreement and any
Terms Agreement, and the consummation of the transactions
herein and therein contemplated will not conflict with or
result in a breach of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of
the property or assets of the Company or any of its
subsidiaries or Material Affiliates pursuant to the terms
of, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the
Company or any of its subsidiaries or Material Affiliates
is a party, or by which the Company or any of its
subsidiaries or Material Affiliates is bound or to which
any of the property or assets of the Company or any of
its subsidiaries or Material Affiliates is subject, nor
will such action result in any violation of the
provisions of the Articles of Incorporation or the
Regulations of the Company or any statute or any order,
rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its
subsidiaries or Material Affiliates or any of their
properties; and no consent, approval, authorization,
order, registration or qualification of or with any such
court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by
the Company of the other transactions contemplated by
this Agreement, any Terms Agreement or the Indenture,
except such as have been, or will have been prior to the
Commencement Date (as defined in Section 3 hereof),
obtained under the Act or the Trust Indenture Act and
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws or under laws of foreign
jurisdictions in connection with the solicitation by such
Agent of offers to purchase Securities from the Company
and with purchases of Securities by such Agent as
principal, as the case may be, in each case in the manner
contemplated hereby;
(i) There are no legal or governmental
proceedings pending to which the Company or any of its
subsidiaries or Material Affiliates is a party or of
which any property of the Company or any of its
subsidiaries or Material Affiliates is the subject
required to be described in the Registration Statement or
the Prospectus which is not described as required; the
legal or governmental proceedings not so described are
proceedings incident to the kind of business conducted by
the Company and its subsidiaries and Material Affiliates
which will not individually or in the aggregate have a
material adverse effect on the financial position,
shareholders' equity or results of operations of the
Company and its subsidiaries as a whole or of any of its
Material Affiliates; and, to the best of the Company's
knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by
others; and there is no material contract or other
material document of a character required to be described
in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which
is not described or filed as required.
(j) Deloitte & Touche LLP, who have certified
certain financial statements of the Company and its
subsidiaries, are independent certified public
accountants as required by the Act and the rules and
regulations of the Commission thereunder; and
(k) As used in this Agreement (i) the term
"Material Affiliate" means each of the following
corporations: Northwood Forest Industries Ltd. and
Northwood Panelboard Company and (ii) the term
"subsidiary" means Escanaba Paper Company, Forest Kraft
Company, M-B Pulp Company, MCB Woodlands and Services,
Inc., Mead Coated Board, Inc., Mead Foreign Holdings,
Inc., Mead Holdings S.A., Mead Packaging International,
Inc. and Mead Oxford Corporation.
2. (a) On the basis of the representations
and warranties, and subject to the terms and conditions
herein set forth, each of the Agents hereby severally and
not jointly agrees, as agent of the Company, to use its
reasonable efforts to solicit and receive offers to
purchase the Securities from the Company upon the terms
and conditions set forth in the Prospectus as amended or
supplemented from time to time. However, (i) the Company
reserves the right to sell, and may solicit and accept
offers to purchase, Securities directly on its own
behalf, and, in the case of any such sale not resulting
from a solicitation made by any Agent, no commission will
be payable with respect to such sale; and (ii) the
Company shall have the right at any time to request the
Agents to execute, prior to the date 15 business days
after such request, an amendment to this Agreement to
provide for another person as an Agent hereunder on
substantially the same terms as the Agents hereunder on
the date of such request, and each Agent shall have the
right either to execute such amendment or to terminate
the provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the
Company pursuant to Section 10 with respect to such
Agent. These provisions shall not limit Section 4(f)
hereof or any similar provision included in any Terms
Agreement.
Procedural details relating to the issue and
delivery of Securities, the solicitation of offers to
purchase Securities and the payment in each case therefor
shall be as set forth in the Administrative Procedure
attached hereto as Annex II as it may be amended from
time to time by written agreement between the Agents and
the Company (the "Administrative Procedure"). The
provisions of the Administrative Procedure shall apply to
all transactions contemplated hereunder other than those
made pursuant to a Terms Agreement. Each Agent and the
Company agree to perform the respective duties and
obligations specifically provided to be performed by each
of them in the Administrative Procedure. The Company
will furnish to the Trustee a copy of the Administrative
Procedure as from time to time in effect.
The Company reserves the right, in its sole
discretion, to instruct the Agents to suspend at any
time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As
soon as practicable, but in any event not later than one
business day in New York City, after receipt of notice
from the Company, the Agents will suspend solicitation of
offers to purchase Securities from the Company until such
time as the Company has advised the Agents that such
solicitation may be resumed.
The Company agrees to pay each Agent a
commission, at the time of settlement of any sale of a
Security by the Company as a result of a solicitation
made by such Agent, in an amount equal to the following
applicable percentage of the principal amount of such
Security sold:
Commission
(percentage of
aggregate
principal amount
Range of Maturities of Securities Sold)
From 9 months to less than 1 year................. .125%
From 1 year to less than 18 months................ .150%
From 18 months to less than 2 years............... .200%
From 2 years to less than 3 years................. .250%
From 3 years to less than 4 years................. .350%
From 4 years to less than 5 years................. .450%
From 5 years to less than 6 years................. .500%
From 6 years to less than 7 years................. .550%
From 7 years to less than 10 years................ .600%
From 10 years to less than 15 years............... .625%
From 15 years to less than 20 years............... .700%
20 years to less than 30 years.................... .750%
30 years and more............ Determined at time of sale
(b) Each sale of Securities to any Agent as
principal shall be made in accordance with the terms of
this Agreement and (unless the Company and such Agent
shall otherwise agree) a Terms Agreement which will
provide for the sale of such Securities to, and the
purchase thereof by, such Agent. A Terms Agreement may
also specify certain provisions relating to the
reoffering of such Securities by such Agent. The
commitment of any Agent to purchase Securities as
principal, whether pursuant to any Terms Agreement or
otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Company
herein contained and shall be subject to the terms and
conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Securities to be
purchased by any Agent pursuant thereto, the price to be
paid to the Company for such Securities, any provisions
relating to rights of, and default by, underwriters
acting together with such Agent in the reoffering of the
Securities and the time and date and place of delivery of
and payment for such Securities. Such Terms Agreement
shall also specify any requirements for opinions of
counsel, accountants' letters and officers' certificates
pursuant to Section 4 hereof.
For each sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement,
the procedural details relating to the issue and delivery
of such Securities and payment therefor shall be as set
forth in the Administrative Procedure. For each such
sale of Securities to an Agent as principal that is not
made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent
discount) as provided in Section 2(a) hereof and in
accordance with the schedule set forth therein.
Each time and date of delivery of and payment
for Securities to be purchased by an Agent as principal,
whether set forth in a Terms Agreement or in accordance
with the Administrative Procedure, is referred to herein
as a "Time of Delivery".
(c) Each Agent agrees, with respect to any
Security denominated in a currency other than U.S.
dollars, as agent, directly or indirectly, not to solicit
offers to purchase, and as principal under any Terms
Agreement or otherwise, directly or indirectly, not to
offer, sell or deliver, such Security in, or to residents
of, the country issuing such currency, except as
permitted by applicable law.
3. The documents required to be delivered
pursuant to Section 6 hereof on the Commencement Date (as
defined below) shall be delivered to the Agents at the
offices of Sullivan & Cromwell, 125 Broad Street, New
York, New York, at 3:00 p.m., New York City time, on the
date of this Agreement, which date and time of such
delivery may be postponed by agreement between the Agents
and the Company but in no event shall be later than the
day prior to the date on which solicitation of offers to
purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred
to herein as the "Commencement Date").
4. The Company covenants and agrees with each
Agent:
(a) (i) To make no further amendment or supplement
to the Registration Statement or the Prospectus as amended
or supplemented (A) prior to the Commencement Date which
shall be reasonably disapproved by any Agent promptly after
reasonable notice thereof or (B) subsequent to the date of
any Terms Agreement or other agreement by an Agent to
purchase Securities as principal or effecting a purchase as
agent, after the date of such Terms Agreement or such other
agreement and prior to the related Time of Delivery which
shall be reasonably disapproved by any Agent party to such
Terms Agreement or so purchasing as principal promptly
after reasonable notice thereof; (ii) to prepare, with
respect to any Securities to be sold through or to such
Agent pursuant to this Agreement, a Pricing Supplement with
respect to such Securities in a form previously approved by
such Agent and to file such Pricing Supplement pursuant to
Rule 424(b) under the Act not later than the close of
business of the Commission on the second business day (or
such other day as Rule 424 shall require) after the date on
which such Pricing Supplement is first used; (iii) to make
no further amendment or supplement to the Registration
Statement or Prospectus as amended or supplemented, other
than any Pricing Supplement or a supplement relating solely
to an offering of debt securities other than the Securities
or any document filed under the Exchange Act which is
incorporated by reference into the Prospectus, at any time
prior to having afforded each Agent a reasonable
opportunity to review and comment on it; (iv) to file
promptly all reports and any definitive proxy or
information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or
sale of the Securities, and during such same period to
advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective
or any supplement to the Prospectus or any amended
Prospectus, other than a supplement relating solely to an
offering of debt securities other than the Securities and
other than any Pricing Supplement that relates to
Securities not purchased through or by such Agents, has
been filed with, or mailed for filing to, the Commission,
of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any
prospectus relating to the Securities, of the suspension of
the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any
proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the
Registration Statement or Prospectus or for additional
information; and (v) in the event of the issuance of any
such stop order or of any such order preventing or
suspending the use of any prospectus relating to the
Securities or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal of such
order;
(b) Promptly from time to time to take such
action as such Agent reasonably may request to qualify
the Securities for offering and sale under the securities
laws of such United States jurisdictions as such Agent
may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such
jurisdictions for as long as may be necessary to complete
the distribution or sale of the Securities; provided,
that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would
subject it to service of process arising out of the offer
or sale of such Securities, in any jurisdiction where it
is not now subject;
(c) To furnish such Agent with copies of the
Registration Statement and each amendment thereto, with
copies of the Prospectus as each time amended or
supplemented, other than any Pricing Supplement (except
as provided in the Administrative Procedure) or a
prospectus supplement relating solely to an offering of
debt securities other than the Securities, in the form in
which it is filed with the Commission pursuant to Rule
424 under the Act, and with copies of the documents
incorporated by reference therein, all in such quantities
as such Agent may reasonably request from time to time;
and, if the delivery of a prospectus is required at any
time in connection with the offering or sale of the
Securities (including Securities purchased from the
Company by such Agent as principal) and if at such time
any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state
any material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange
Act any document incorporated by reference in the
Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify such Agent and
request such Agent, in its capacity as agent of the
Company, to suspend solicitation of offers to purchase
Securities from the Company (and, if so notified, such
Agent shall cease such solicitations as soon as
practicable, but in any event not later than one business
day later); and if the Company shall decide to amend or
supplement the Registration Statement or the Prospectus
as then amended or supplemented, to so advise such Agent
promptly by telephone (with confirmation in writing) and
to prepare and cause to be filed promptly with the
Commission an amendment or supplement to the Registration
Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission
or effect such compliance; provided, however, that if
during such same period such Agent continues to own
Securities purchased from the Company by such Agent as
principal or such Agent is otherwise required to deliver
a prospectus in respect of transactions in the
Securities, the Company shall promptly prepare and file
with the Commission such an amendment or supplement;
(d) To make generally available to its
security holders as soon as practicable, but in any event
not later than eighteen months after the effective date
of the Registration Statement (as defined in Rule 158(c))
and the date of each filing by the Company with the
Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Registration Statement,
an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a)
of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the
Company, Rule 158);
(e) So long as any of the Securities are
outstanding, the Company will furnish to such Agent (i)
as soon as available, a copy of each report of the
Company mailed to shareholders or filed with the
Commission and (ii) from time to time such other
information concerning the Company as such Agent may
reasonably request.
(f) That, from the date of any Terms Agreement
with such Agent or other agreement by such Agent to
purchase Securities as principal, if required by such
Terms Agreement or other agreement, and continuing to and
including the earlier of (i) the termination of the
trading restrictions for the Securities purchased
thereunder, as notified to the Company by such Agent and
(ii) the related Time of Delivery, the Company will not,
without the prior written consent of such Agent, offer,
sell, contract to sell or otherwise dispose of any debt
securities of the Company which both mature more than 9
months after such Time of Delivery and are substantially
similar to the Securities, other than debt securities
which the Company has previously contracted to sell and
with respect to which the Company has advised such Agent
in or in connection with such Terms Agreement or other
agreement or of which such Agent has actual knowledge
thereof;
(g) That each acceptance by the Company of an
offer to purchase Securities hereunder (including any
purchase by such Agent as principal not pursuant to a
Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be
deemed to be an affirmation to such Agent that the
representations and warranties of the Company contained
in or made pursuant to this Agreement are true and
correct as of the date of such acceptance or of such
Terms Agreement, as the case may be, as though made at
and as of such date, and an undertaking that such
representations and warranties will be true and correct
as of the settlement date for the Securities relating to
such acceptance or as of the Time of Delivery relating to
such sale, as the case may be, as though made at and as
of such date (except that such representations and
warranties shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
relating to such Securities);
(h) That, following the issuance of Securities
under the Indenture, on April 15 (or if such day is not a
business day, the next succeeding business day) of every
year this Agreement is in effect or as otherwise
reasonably requested by the Agents, and each time the
Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion or opinions by
Sullivan & Cromwell, counsel to the Agents, as a
condition to the purchase of Securities pursuant to such
Terms Agreement, the Company shall furnish to such
counsel such papers and information as they may
reasonably request to enable them to furnish to such
Agent the opinion or opinions referred to in Section 6(b)
hereof;
(i) That each time the Registration Statement
or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or a supplement relating
solely to an offering of debt securities other than the
Securities), each time a document filed under the Act or
the Exchange Act is incorporated by reference into the
Prospectus (other than a Current Report on Form 8-K
unless reasonably requested by the Agents) and each time
the Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion under this Section
4(i) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent
written opinions of David L. Santez, Assistant Secretary
and Associate General Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, dated
the date of such amendment, supplement or incorporation
or the Time of Delivery relating to such sale, as the
case may be, in form satisfactory to such Agent, to the
effect that such Agent may rely on such opinion of such
counsel referred to in Section 6(c) hereof which were
last furnished to such Agent to the same extent as though
it were dated the date of such letter authorizing
reliance (except that the statements in such last
opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
to such date) or, in lieu of such opinions, opinions of
the same tenor as the opinions of such counsel referred
to in Section 6(c) hereof but modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date;
(j) That, following the issuance of Securities
under the Indenture, on April 15 (or if such day is not a
business day, the next succeeding business day) of every
year this Agreement is in effect or as otherwise
reasonably requested by the Agents, and each time the
Company sells Securities to such Agent as principal
pursuant to a Terms Agreement and such Terms Agreement
specifies the delivery of an opinion under this Section
4(j) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent
written opinions of Skadden, Arps, Slate, Meagher & Flom
LLP, special counsel for the Company, or other counsel
for the Company satisfactory to such Agent, in form
satisfactory to such Agent, to the effect that such Agent
may rely on such opinion of such counsel referred to in
Section 6(d) hereof which were last furnished to such
Agent to the same extent as though it were dated the date
of such letter authorizing reliance (except that the
statements in such last opinions shall be deemed to
relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu of
such opinions, opinions of the same tenor as the opinions
of such counsel referred to in Section 6(d) hereof but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date;
(k) That each time the Registration Statement
or the Prospectus shall be amended or supplemented (other
than a supplement relating solely to an offering of debt
securities other than the Securities) and each time that
a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than
a Current Report on Form 8-K unless reasonably requested
by the Agents), in either case to set forth financial
information included in or derived from the Company's
consolidated financial statements or accounting records,
and each time the Company sells Securities to such Agent
as principal pursuant to a Terms Agreement and such Terms
Agreement specifies the delivery of a letter under this
Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall cause
the independent certified public accountants who have
audited the financial statements of the Company and its
subsidiaries included or incorporated by reference in the
Registration Statement to furnish such Agent a letter
substantially in the form of Annex III hereto, dated the
date of such amendment, supplement or incorporation or
the Time of Delivery relating to such sale, as the case
may be, in form satisfactory to such Agent, of the same
tenor as the letter referred to in Section 6(e) hereof
but modified to relate to the Registration Statement and
the Prospectus as amended or supplemented to the date of
such letter, with such changes as may be necessary to
reflect changes in the financial statements and other
information derived from the accounting records of the
Company, to the extent such financial statements and
other information are available as of a date not more
than five business days prior to the date of such letter;
provided, however, that, with respect to any financial
information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of
such date, rather than repeat, statements with respect to
such financial information or other matter made in the
letter referred to in Section 6(e) hereof which was last
furnished to such Agent; and
(l) That each time the Registration Statement
or the Prospectus shall be amended or supplemented (other
than by a Pricing Supplement or a prospectus supplement
relating solely to an offering of debt securities other
than the Securities), each time a document filed under
the Act or the Exchange Act is incorporated by reference
into the Prospectus (other than a Current Report on Form
8-K unless reasonably requested by the Agents), and each
time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies
the delivery of a certificate under this Section 4(l) as
a condition to the purchase of Securities pursuant to
such Terms Agreement, the Company shall furnish or cause
to be furnished forthwith to such Agent a certificate,
dated the date of such supplement, amendment,
incorporation or the Time of Delivery relating to such
sale, as the case may be, in such form and executed by
such officers of the Company as shall be satisfactory to
such Agent, to the effect that the statements contained
in the certificates referred to in Section 6(h) hereof
which were last furnished to such Agent are true and
correct at such date as though made at and as of such
date (except that such statements shall be deemed to
relate to the Registration Statement and the Prospectus
as amended and supplemented to such date) or, in lieu of
such certificate, certificates of the same tenor as the
certificates referred to in said Section 6(h) but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date.
5. The Company covenants and agrees with each Agent
that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of
the Company's counsel and accountants in connection with
the registration of the Securities under the Act and all
other expenses in connection with the preparation,
printing and filing of the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Pricing
Supplements and all other amendments and supplements
thereto and the mailing and delivering of copies thereof
to the Agents; (ii) the reasonable fees and expenses of
counsel for the Agents in connection with the
establishment of the program contemplated hereby, any
opinions to be rendered by such counsel hereunder and the
transactions contemplated hereunder (provided that the
Company will pay such fees and expenses up to an
aggregate maximum amount of $60,000 with respect to the
establishment of the program contemplated hereby); (iii)
the cost of printing, preparing by word processor or
reproducing this Agreement, any Terms Agreement, the
Indenture, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering,
purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the
Securities for offering and sale under state securities
laws as provided in Section 4(b) hereof, including
reasonable fees and disbursements of counsel for the
Agents in connection with such qualification and in
connection with the Blue Sky and legal investment
surveys; (v) any fees charged by securities rating
services for rating the Securities; (vi) any filing fees
incident to any required review by the National
Association of Securities Dealers, Inc. of the terms of
the sale of the Securities; (vii) the cost of preparing,
and providing any CUSIP or other identification number
for, the Securities; (viii) the fees and expenses of the
Trustee and any agent of the Trustee and any transfer or
paying agent of the Company and the fees and
disbursements of counsel for any Trustee or such agent in
connection with any Indenture and the Securities; (ix)
the fees and expenses of any Depositary (as defined in
the Indenture) and any nominees thereof in connection
with the Securities; (x) any reasonable advertising
expenses connected with the solicitation of offers to
purchase and the sale of Securities so long as such
advertising expenses have been approved in advance by the
Company (any advertising expense approved by the Company
in advance shall be deemed to be reasonable); (xi) all
other reasonable costs and expenses incident to the
performance of the Company's obligations hereunder which
are not otherwise specifically provided for in this
Section; and (xii) the fees and expenses in connection
with any listing of the Securities and registration of
the Securities under the Exchange Act. Except as
provided in this Section and Sections 7 and 8 hereof,
each Agent shall pay all other expenses it incurs.
6. The obligation of any Agent, as agent of
the Company, at any time ("Solicitation Time") to solicit
offers to purchase the Securities, the obligation of any
Agent to purchase Securities as principal, pursuant to
any Terms Agreement or otherwise, and the obligation of
any purchaser of Securities as a result of an offer to
purchase solicited by any Agent, shall be subject, in the
discretion of such Agent or purchaser, as the case may
be, to the condition that all representations and
warranties and other statements of the Company herein
(and, in the case of an obligation of the Agents under a
Terms Agreement, in or incorporated in such Terms
Agreement by reference) are true and correct at and as of
the Commencement Date and any applicable date referred to
in Section 4(l) hereof, as the case may be, and at and as
of such Solicitation Time, settlement date or Time of
Delivery, as the case may, be, the condition that prior
to such Solicitation Time, settlement date or Time of
Delivery, as the case may be, the Company shall have
performed all of its obligations hereunder theretofore to
be performed, and the following additional conditions:
(a) (i) With respect to any Securities sold
at or prior to such Solicitation Time, settlement date or
Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing
Supplement) with respect to such Securities shall have
been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period
prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; (iii) all
requests for additional information on the part of the
Commission shall have been complied with to the
reasonable satisfaction of such Agent; and (iv) after the
date of any Terms Agreement or other agreement by an
Agent to purchase Securities as principal and prior to
the related Time of Delivery no document shall have been
incorporated by reference into the Prospectus which shall
be disapproved by such Agent promptly after reasonable
notice thereof;
(b) Sullivan & Cromwell, counsel to the
Agents, shall have furnished to such Agent (i) such
opinion or opinions, dated the Commencement Date, with
respect to the incorporation of the Company, the validity
of the Indenture, the Securities, the Registration
Statement, the Prospectus as amended or supplemented and
such other related matters as such Agent may reasonably
request, and (ii) if and to the extent requested by such
Agent, with respect to each applicable date referred to
in Section 4(h) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may
be, an opinion or opinions, dated such applicable date,
to the effect that such Agent may rely on the opinion or
opinions which were last furnished to such Agent pursuant
to this Section 6(b) to the same extent as though it or
they were dated the date of such letter authorizing
reliance (except that the statements in such last opinion
or opinions shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented
to such date) or, in any case, in lieu of such an opinion
or opinions, an opinion or opinions of the same tenor as
the opinion or opinions referred to in clause (i) but
modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date; and
in each case such counsel shall have received such papers
and information as they may reasonably request to enable
them to pass upon such matters;
(c) David L. Santez, Assistant Secretary and
Associate General Counsel of the Company, or other
counsel for the Company satisfactory to such Agent, shall
have furnished to such Agent, his written opinions, dated
the Commencement Date and each applicable date referred
to in Section 4(i) hereof that is on or prior to such
Solicitation Time or Time of Delivery, as the case may
be, in form and substance satisfactory to such Agent, to
the effect that:
(i) The Company has been duly
incorporated and is validly existing as a
corporation in good standing under the laws of
the jurisdiction of its incorporation, with
corporate power and authority to own its
properties and conduct its business as
described in the Prospectus as amended or
supplemented;
(ii) (a) To the best of such counsel's
knowledge there are no legal or governmental
proceedings pending to which the Company or any
of its subsidiaries is a party or of which any
property of the Company or any of its
subsidiaries is the subject required to be
described in the Registration Statement or the
Prospectus which is not described as required;
and (b) the legal or governmental proceedings
not so described are proceedings incident to
the kind of business conducted by the Company
and its subsidiaries which individually and in
the aggregate are not material to the Company
and its subsidiaries, taken as a whole, and to
the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by
others (such counsel being entitled to rely, in
respect of the opinion in this clause relating
to subsidiaries, upon opinions of other legal
counsel, it being understood that such counsel
has made no independent check of such
proceedings but believes that both you and such
counsel are justified in relying upon such
opinions and that, with respect to proceedings
that are threatened or contemplated, counsel's
opinion will be limited to matters of which
they have actual knowledge);
(iii) This Agreement and any applicable
Terms Agreement have been duly authorized,
executed and delivered by the Company;
(iv) The issuance and sale of the
Securities have been duly authorized by the
Company; the Securities, when executed and
authenticated in accordance with the terms of
the Indenture, when the terms of the Securities
have been fixed by the Chief Financial Officer
in conformity with the Indenture, and when the
Securities have been issued, sold and delivered
to and paid for by the Agents in accordance
with the terms of this Agreement, will be duly
authorized, executed and delivered and will
constitute valid and binding obligations of the
Company enforceable in accordance with their
terms and entitled to the benefits of the
Indenture, except (a) to the extent that
enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other
similar laws now or hereafter in effect
relating to creditors' rights generally and
(ii) general principles of equity (regardless
of whether enforceability is considered in a
proceeding at law or in equity), (b) that such
counsel expresses no opinion as to Section 515
of the Indenture, (c) requirements that a claim
with respect to any Securities denominated
other than in U.S. dollars (or a judgment
denominated other than in U.S. dollars in
respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law and
(d) governmental authority to limit, delay or
prohibit the making of payments in foreign
currency, currency units or composite
currencies, outside the United States; such
counsel may assume that at the time of the
issuance, sale and delivery of each particular
Security there will not have occurred any
change in law affecting the validity, legally
binding character or enforceability of such
Security and that the issuance, sale and
delivery of such Security, all of the terms of
such Security and the performance by the
Company of its obligations thereunder will
comply with applicable law and with each
requirement or restriction imposed by any court
or governmental body having jurisdiction over
the Company and will not result in a default
under or a breach of any agreement or
instrument then binding upon the Company;
(v) The Indenture has been duly
authorized, executed and delivered by the
Company and is a valid and binding agreement of
the Company, enforceable against the Company in
accordance with its terms, except (a) to the
extent that enforcement thereof may be limited
by (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or other
similar laws now or hereafter in effect
relating to creditors' rights generally and
(ii) general principles of equity (regardless
of whether enforceability is considered in a
proceeding at law or in equity), (b) that such
counsel expresses no opinion as to Section 515
of the Indenture; and the Indenture has been
qualified under the Trust Indenture Act, (c)
requirements that a claim with respect to any
Securities denominated other than in U.S.
dollars (or a judgment denominated other than
in U.S. dollars in respect of such claim) be
converted into U.S. dollars at a rate of
exchange prevailing on a date determined
pursuant to applicable law and (d) governmental
authority to limit, delay or prohibit the
making of payments in foreign currency,
currency units or composite currencies, outside
the United States;
(vi) The issuance and sale of the
Securities and the compliance by the Company
with all of the provisions of the Securities,
the Indenture, this Agreement and any
applicable Terms Agreement with respect to the
Securities and the consummation of the
transactions herein and therein contemplated
does not conflict with or result in a breach of
any of the terms or provisions of, or
constitute a default under, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the property or assets
of the Company or any of its subsidiaries
pursuant to the terms of, any indenture,
mortgage, deed of trust, loan agreement or
other agreement or instrument known to such
counsel to which the Company is a party or by
which the Company or any of its subsidiaries is
bound or to which any of the property or assets
of the Company or any of its subsidiaries is
subject, nor do such actions result in any
violation of the provisions of the Articles of
Incorporation or Regulations of the Company or
any statute or any order, rule or regulation
known to such counsel of any court or
governmental agency or body having jurisdiction
over the Company or any of its subsidiaries or
any of their properties, except that counsel
expresses no opinion with respect to the State
securities or Blue Sky laws or with respects to
the rights to indemnity and contribution under
this Agreement (such counsel being entitled to
rely in respect of the opinion in this
paragraph relating to subsidiaries upon
opinions of other legal counsel provided that
such counsel shall state that both you and such
counsel are justified in relying upon such
opinions); such counsel may assume that, at the
time of the issuance, sale and delivery of each
particular Security, the issuance, sale and
delivery of such Security, all the terms of
such Security and the performance by the
Company of its obligations thereunder will
comply with applicable law and each requirement
or restriction imposed by any court or
governmental body having jurisdiction over the
Company and will not result in a default under
or a breach of the Articles of Incorporation or
Regulations of the Company, or any agreement or
instrument then binding upon the Company or its
properties;
(vii) No consent, approval, license,
authorization, validation, filing, recording,
order, registration or qualification of or with
any such court or governmental agency or body
is required for the solicitation of offers to
purchase Securities, the issue and sale of the
Securities or the consummation by the Company
of the transactions contemplated by this
Agreement or any applicable Terms Agreement or
the Indenture, except such as have been
obtained under the Act and the Trust Indenture
Act and such consents, approvals,
authorizations, orders, registrations or
qualifications as may be required under state
securities or Blue Sky laws or under the laws
of foreign jurisdictions in connection with the
solicitation by the Agents of offers to
purchase Securities from the Company and with
purchases of Securities by an Agent as
principal, as the case may be, in each case in
the manner contemplated hereby; such counsel
may assume that, at the time of the issuance,
sale and delivery of each particular Security,
the issuance, sale and delivery of such
Security, all the terms of such Security and
the performance by the Company of its
obligations thereunder will not require any
consent or authorization of any such court or
governmental agency;
(viii) The statements set forth in the
Prospectus under the captions "Description of
Securities", "Description of Notes" and
"Supplemental Plan of Distribution" and under
the caption "Description of Designated
Securities" (or comparable caption) in the
Prospectus as amended or supplemented in
respect of the Securities, insofar as they
purport to summarize certain provisions of the
laws and documents referred to therein, fairly
summarize such provisions in all material
respects;
(ix) The documents incorporated by
reference in the Prospectus as amended or
supplemented, when they were filed with the
Commission appeared on their face to be
appropriately responsive in all material
respects to the requirements of the Exchange
Act and the rules and regulations thereunder,
except that such counsel expresses no opinion
as to the financial statements, related
schedules and other financial data, and such
counsel does not assume any responsibility for
the accuracy, completeness or fairness of the
statements contained in the documents
incorporated by reference in the Prospectus as
amended or supplemented; and
(x) The Registration Statement, as of its
effective date, and the Prospectus as amended
or supplemented, as of its date, and any
further amendments and supplements thereto made
by the Company prior to the Time of Delivery
for the Securities, appeared on their face to
be appropriately responsive in all material
respects to the requirements of the Act and the
Trust Indenture Act and the rules and
regulations thereunder, except that in each
case, such counsel expresses no opinion as to
the financial statements, schedules and other
financial data, and such counsel does not
assume any responsibility for the accuracy,
completeness or fairness of the statements
contained in the Registration Statement and the
Prospectus, except for those referred to in the
opinion in paragraphs (ii)(a) and (viii);
In addition, such counsel shall state
that, although they are not passing upon and do
not assume any responsibility for, the
accuracy, completeness or fairness of the
statements contained in the Registration
Statement or the Prospectus and have made no
independent check or verification thereof,
except for those referred to in the opinion in
paragraphs (ii)(a) and (viii), no facts have
come to their attention that have led them to
believe that the Registration Statement, at the
time it became effective, contained an untrue
statement of a material fact or omitted to
state a material fact required to be stated
therein or necessary to make the statements
therein not misleading or that, as of its date,
the Commencement Date and the Time of Delivery,
the Prospectus as amended or supplemented, or
any further amendment or supplement thereto
made by the Company prior to the Commencement
Date or the Time of Delivery, contained or
contains an untrue statement of a material fact
or omitted or omits to state a material fact
necessary in order to make the statements
therein, in light of the circumstances under
which they were made, not misleading, except
that such counsel expresses no opinion or
belief with respect to the financial
statements, schedules and other financial data;
and such counsel does not know of any contracts
or other documents of a character required to
be filed as an exhibit to the Registration
Statement or required to be described in the
Registration Statement or the Prospectus as
amended or supplemented which are not filed or
described as required.
In rendering such opinion, (A) such counsel may
state that such opinion is limited solely to the laws of
the State of Ohio as applied by courts located in Ohio,
the laws of the State of New York with respect to the
opinions in paragraphs (iii), (iv) and (v) and the
federal laws of the United States and (B) such counsel
may rely, as to all matters of law of the State of New
York, on an opinion of local counsel;
(d) Skadden, Arps, Slate, Meagher & Flom LLP,
special counsel for the Company, or other counsel
satisfactory to such Agent shall have furnished to such
Agent their written opinions, dated the Commencement Date
and each applicable date referred to in Section 4(j)
hereof that is on or prior to such Solicitation Time or
Time of Delivery, as the case may be, in form and
substance satisfactory to such Agent, to the effect of
paragraphs (iii), (iv), (v), (viii) (including the
statements set forth under the heading "United States
Taxation" in the Prospectus as amended or supplemented),
(x) (including the last paragraph thereof, but excluding
the last clause of such paragraph) of paragraph (c); in
rendering such opinion, (A) Skadden, Arps, Slate, Meagher
& Flom LLP may state that such opinion is limited solely
to the laws of the State of New York as applied by courts
located in New York and the federal laws of the United
States and (B) such counsel shall be entitled to make
certain assumptions with respect to matters of Ohio law
opined upon by Ohio counsel with respect to the opinions
in paragraphs (iii), (iv) and (v);
(e) (i) Not later than 10:00 a.m., New York
City time, on the Commencement Date and on each
applicable date referred to in Section 4(k) hereof that
is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, the independent certified
public accountants who have audited the financial
statements of the Company and its subsidiaries included
or incorporated by reference in the Registration
Statement shall have furnished to such Agent a letter,
dated the Commencement Date or such applicable date, as
the case may be, in form and substance satisfactory to
such Agent, to the effect set forth in Annex III hereto;
(f) (i) Neither the Company nor any of its
subsidiaries or Material Affiliates shall have sustained
since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus
as amended or supplemented any loss or interference with
its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in
the Prospectus as amended or supplemented and (ii) since
the respective dates as of which information is given in
the Prospectus as amended or supplemented there shall not
have been any incurrence by the Company or its
subsidiaries or its Material Affiliates of any material
liabilities or obligations, direct or contingent, any
material change in the capital stock or long-term debt of
the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or
affecting the financial position, stockholders' equity or
results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect
of which, in any such case described in clause (i) or
(ii), is in the judgment of such Agent so material and
adverse as to make it impracticable or inadvisable to
proceed with the solicitation by such Agent of offers to
purchase Securities from the Company or the purchase by
such Agent of Securities from the Company as principal,
as the case may be, on the terms and in the manner
contemplated in the Prospectus as amended or
supplemented;
(g) There shall not have occurred any of the
following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock
Exchange; (ii) a suspension or material limitation in
trading in the Company's securities on the New York Stock
Exchange; (iii) a general moratorium on commercial
banking activities in New York declared by either Federal
or New York State authorities; (iv) the outbreak or
material escalation of hostilities involving the United
States or the declaration by the United States of a
national emergency or war or other international or
domestic calamity, crisis or change in political,
financial or economic conditions, if the effect of any
such event specified in this clause (iv) in the judgment
of such Agent makes it impracticable or inadvisable to
proceed with the solicitation of offers to purchase
Securities or the purchase of Securities from the Company
as principal, pursuant to the applicable Terms Agreement
or otherwise, as the case may be, on the terms and in the
manner contemplated in the Prospectus as amended or
supplemented; (v) any downgrading in the rating accorded
the Company's debt securities by any "nationally
recognized statistical rating organization", as that term
is defined by the Commission for purposes of Rule
436(g)(2) under the Act; or (vi) any such "nationally
recognized statistical rating organization" shall have
publicly announced that it has under surveillance or
review, with possible negative implications, its rating
of any of the Company's debt securities or preferred
stock; and
(h) The Company shall have furnished or caused
to be furnished to such Agent certificates of officers of
the Company dated the Commencement Date and each
applicable date referred to in Section 4(l) hereof that
is on or prior to such Solicitation Time or Time of
Delivery, as the case may be, in such form and executed
by such officers of the Company as shall be satisfactory
to such Agent, as to the accuracy of the representations
and warranties of the Company herein at and as of the
Commencement Date or such applicable date, as the case
may be, as to the performance by the Company of all of
its obligations hereunder to be performed at or prior to
the Commencement Date or such applicable date, as the
case may be, as to the matters set forth in subsections
(a) and (f) of this Section 6, and as to such other
matters as such Agent may reasonably request.
7. (a) The Company will indemnify and hold
harmless each Agent against any losses, claims, damages
or liabilities, joint or several, to which such Agent may
become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus,
the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other
prospectus relating to the Securities (but only if such
other prospectus was approved in writing by the Company),
or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, and will reimburse such Agent for any legal
or other expenses reasonably incurred by it in connection
with investigating or defending any such action or claim
as such expenses are incurred; provided, however, that
the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus approved in writing
by the Company relating to the Securities, or any such
amendment or supplement, in reliance upon, and in
conformity with written information furnished to the
Company by such Agent expressly for use therein; and
provided further, that the Company shall not be liable to
such Agent under the indemnity agreement in this
subsection (a) with respect to any Preliminary Prospectus
to the extent that any such loss, claim, damage or
liability of such Agent results from the fact such Agent
sold Securities to a person to whom it shall be
established that there was not sent or given, at or prior
to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by
reference) in any case where such delivery is required by
the Act if the Company has previously furnished copies
thereof in sufficient quantity to such Agent and the
loss, claim, damage or liability of such Agent results
from an untrue statement or omission of a material fact
contained in the Preliminary Prospectus which was
identified in writing prior to the date of the Terms
Agreement or the date of such purchase and to such Agent
and corrected in the Prospectus (excluding documents
incorporated by reference therein) or the Prospectus as
then amended or supplemented (excluding documents
incorporated by reference therein).
(b) Each Agent will indemnify and hold
harmless the Company against any losses, claims, damages
or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but
only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made
in any Preliminary Prospectus, the Registration
Statement, the Prospectus, the Prospectus as amended or
supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information
furnished to the Company by such Agent expressly for use
therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in
connection with investigating or defending any such
action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the
commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement
thereof; provided that, where the omission so to notify
the indemnifying party shall have prejudiced such party
in any material respect, such party shall be relieved
from any liability which it may have to any indemnified
party under such subsection (a) or (b). In case any such
action shall be brought against any indemnified party and
it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and, after notice
from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the
indemnifying party shall not be liable to such
indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or
threatened action or claim in respect of which
indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or
potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii)
does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in
this Section 7 is unavailable to or insufficient to hold
harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to
therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by
the Company on the one hand and each Agent on the other
from the offering of the Securities to which such, loss,
claim, damage or liability (or action in respect thereof)
relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give
the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid
or payable by such indemnified party in such proportion
as is appropriate to reflect not only such relative
benefits but also the relative fault of the Company on
the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the
Company on the one hand and each Agent on the other shall
be deemed to be in the same proportion as the total net
proceeds from the sale of such Securities (before
deducting expenses) received by the Company bear to the
total commissions or discounts received by such Agent in
respect thereof. The relative fault shall be determined
by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact
relates to information supplied by the Company on the one
hand or by any Agent on the other and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or
omission. The Company and each Agent agree that it would
not be just and equitable if contribution pursuant to
this subsection (d) were determined by pro rata
allocation (even if all Agents were treated as one entity
for such purpose) or by any other method of allocation
which does not take account of the equitable
considerations referred to above in this subsection (d).
The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this
subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of
this subsection (d), no Agent shall be required to
contribute any amount in excess of the amount by which
the total price at which the applicable Securities
distributed by such Agent to the public were offered by
such Agent to the public exceeds the amount of any
damages which such Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of each of
the Agents under this subsection (d) to contribute are
several in proportion to their respective purchases made
by or through it to which such loss, claim, damage or
liability (or action in respect thereof) relates and are
not joint.
(e) The obligations of the Company under this
Section 7 shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the
obligations of each Agent under this Section 7 shall be
in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company
and to each person, if any, who controls the Company
within the meaning of the Act.
8. Each Agent, in soliciting offers to
purchase Securities from the Company and in performing
the other obligations of such Agent hereunder (other than
in respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise) is acting
solely as agent for the Company and not as principal.
Each Agent will make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was
solicited by such Agent and has been accepted by the
Company, but such Agent shall not have any liability to
the Company in the event such purchase is not consummated
for any reason. If the Company shall default on its
obligation to deliver Securities to a purchaser whose
offer it has accepted, the Company shall (i) hold each
Agent harmless against any loss, claim or damage arising
from or as a result of such default by the Company and
(ii) notwithstanding such default, pay to the Agent that
solicited such offer any commission to which it would be
entitled in connection with such sale.
9. The respective indemnities, agreements,
representations, warranties and other statements by any
Agent and the Company set forth in or made pursuant to
this Agreement shall remain in full force and effect
regardless of any investigation (or any statement as to
the results thereof) made by or on behalf of any Agent or
any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the
Company, and shall survive each delivery of and payment
for any of the Securities.
10. The provisions of this Agreement relating
to the solicitation of offers to purchase Securities from
the Company may be suspended or terminated at any time by
the Company as to any Agent or by any Agent as to such
Agent upon the giving of written notice of such
suspension or termination to such Agent or the Company,
as the case may be. In the event of any such termination
or suspension, no party will have any liability, duty or
obligation to any other party hereto, except that (x)
this Agreement shall remain in full force and effect with
respect to any Agent as to which such suspension or
termination has not occurred, (y) this Agreement shall
remain in full force and effect with respect to the
rights and obligations of any party which have previously
accrued or which relate to Securities which are already
issued, agreed to be issued or the subject of a pending
offer at the time of such suspension or termination and
(z) in any event, this Agreement shall remain in full
force and effect insofar as the fourth paragraph of
Section 2(a), Section 4(d), Section 4(e), Section 5,
Section 7, Section 8 and Section 9 hereof are concerned.
11. Except as otherwise specifically provided
herein or in the Administrative Procedure, all
statements, requests, notices and advices hereunder shall
be in writing, or by telephone if promptly confirmed in
writing, to Goldman, Sachs & Co. shall be sufficient in
all respects when delivered or sent by facsimile
transmission or registered mail to 85 Broad Street, New
York, New York 10004, Facsimile Transmission No. (212)
902-4103, Attention: Registration Department; and if to
Merrill Lynch, Pierce, Fenner & Smith Incorporated shall
be sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to Merrill
Lynch World Headquarters, North Tower, World Financial
Center, New York, New York, 10281-1310, 10th Floor,
Facsimile Transmission No. (212) 449-7476, Attention: MTN
Product Management; and if to the Company shall be
sufficient in all respects when delivered or sent by
facsimile transmission or registered mail to it, at its
address set forth in the Prospectus.
12. This Agreement and any Terms Agreement
shall be binding upon, and inure solely to the benefit
of, each Agent and the Company, and to the extent
provided in Section 7, Section 8 and Section 9 hereof,
the officers and directors of the Company and any person
who controls any Agent or the Company, and their
respective personal representatives, successors and
assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement or any Terms
Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor
or assign by reason of such purchase.
13. Time shall be of the essence in this
Agreement and any Terms Agreement. As used herein, the
term "business day" shall mean any day when the office of
the Commission in Washington, D.C. is open for business.
14. THIS AGREEMENT AND ANY TERMS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
15. This Agreement and any Terms Agreement may
be executed by any one or more of the parties hereto and
thereto in any number of counterparts, each of which
shall be deemed to be an original, but all of such
respective counterparts shall together constitute one and
the same instrument.
16. This Agreement may be amended or
supplemented if, but only if, such amendment or
supplement is in writing and is signed by the Company and
each Agent; provided that the Company may from time to
time, on 15 days prior written notice to the Agents but
without the consent of any Agent, amend this Agreement to
add as a party hereto one or more additional firms
registered under the Exchange Act, whereupon each such
firm shall become an Agent hereunder on substantially the
same terms and conditions as the other Agents that are
parties hereto. Each Agent shall sign any amendment or
supplement giving effect to the addition of any such firm
as an Agent under this Agreement or shall terminate the
provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company
pursuant to Section 10 with respect to such Agent.
If the foregoing is in accordance with your
understanding, please sign and return to us five
counterparts hereof, whereupon this letter and the
acceptance by each of you thereof shall constitute a
binding agreement between the Company and each of you in
accordance with its terms.
Very truly yours,
THE MEAD CORPORATION
By: /s/ William R. Graber
_______________________________
William R. Graber
Vice President and
Chief Financial Officer
Accepted in New York, New York,
as of the date hereof:
/s/ Goldman, Sachs & Co.
_________________________________
(Goldman, Sachs & Co.)
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Scott G. Primrose
_____________________________
Name: Scott G. Primrose
Title: Authorized Signatory
ANNEX I
THE MEAD CORPORATION
Medium-Term Notes, Series A
Terms Agreement
___________, 1997
[Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209]
Dear Sirs:
The Mead Corporation (the "Company") proposes,
subject to the terms and conditions stated herein and in
the Distribution Agreement, dated October 20, 1997 (the
"Distribution Agreement"), between the Company on the one
hand and Goldman, Sachs & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated (the "Agents"), on the other,
to issue and sell to [Goldman, Sachs & Co.] [Merrill
Lynch, Pierce, Fenner & Smith Incorporated] the
securities specified in the Schedule hereto (the
"Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the
solicitation by the Agents, as agents of the Company, of
offers to purchase Securities is incorporated herein by
reference in its entirety, and shall be deemed to be part
of this Terms Agreement to the same extent as if such
provision had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall
make any party hereto an agent of the Company or make
such party subject to the provisions therein relating to
the solicitation of offers to purchase Securities from
the Company, solely by virtue of its execution of this
Terms Agreement. Each of the representations and
warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement,
except that each representation and warranty in Section 1
of the Distribution Agreement which makes reference to
the Prospectus shall be deemed to be a representation and
warranty as of the effective date of the Registration
Statement (as defined in the Distribution Agreement) in
relation to the Prospectus (as defined in the
Distribution Agreement), and also a representation and
warranty as of the date of this Terms Agreement in
relation to the Prospectus as amended and supplemented to
relate to the Purchased Securities.
An amendment to the Registration Statement, or
a supplement to the Prospectus, as the case may be,
relating to the Purchased Securities, in the form
heretofore delivered to you is now proposed to be filed
with the Commission.
Subject to the terms and conditions set forth
herein and in the Distribution Agreement incorporated
herein by reference, the Company agrees to issue and sell
to [Goldman, Sachs & Co.] [Merrill Lynch, Pierce, Fenner
& Smith Incorporated] and [Goldman, Sachs & Co.] [Merrill
Lynch, Pierce, Fenner & Smith Incorporated] agree[s] to
purchase from the Company the Purchased Securities, at
the time and place, in the principal amount and at the
purchase price set forth in the Schedule hereto.
The Company agrees that from the date of this
Terms Agreement by [Goldman, Sachs & Co.] [Merrill Lynch,
Pierce, Fenner & Smith Incorporated] to purchase
Securities as principal and continuing to and including
the earlier of (i) the termination of the trading
restrictions for the Securities purchased hereunder, as
notified to the Company by such Agent[s] and (ii) the
related Time of Delivery, the Company will not, without
the prior written consent of such Agent[s], offer, sell,
contract to sell or otherwise dispose of any debt
securities of the Company which both mature more than 9
months after such Time of Delivery and are substantially
similar to the Securities.
Defined terms used herein and not defined
herein shall have the meaning given such terms in the
Distribution Agreement.
If the foregoing is in accordance with your
understanding, please sign and return to us three (3)
counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those
provisions of the Distribution Agreement incorporated
herein by reference, shall constitute a binding agreement
between you and the Company.
THE MEAD CORPORATION
By:_____________________
Name:
Title:
Accepted:
[_______________________________]
(Goldman, Sachs & Co.)
[MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:_____________________________]
Name:
Title:
Schedule to Annex I
Title of Purchased Securities:
[[ %] Medium-Term Notes, Series A]
Aggregate Principal Amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by [Goldman, Sachs & Co.] [Merrill Lynch,
Pierce, Fenner & Smith Incorporated]
% of the principal amount of the Purchased
Securities[, plus accrued interest from
to ] [and accrued amortization, if any,
from to ]
Method of and Specified Funds for Payment of Purchase
Price:
[By certified or official bank check or checks,
payable to the order of the Company, in [[New
York] Clearing House] [immediately available]
funds]
[By wire transfer to a bank account specified
by the Company in [next day] [immediately
available] funds]]
Indenture:
Indenture, dated as of October 20, 1997 between
the Company and Citibank, N.A., as Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate [and Formula]:
[ %]
Interest Payment Dates:
[months and dates]
Documents to be Delivered:
The following documents referred to in the
Distribution Agreement shall be delivered as a
condition to the Closing:
[(l) The opinion or opinions of counsel to the
Agents referred to in Section 4(h).]
[(2) The opinions of counsel to the Company
referred to in Sections 4(i) and 4(j).]
[(4) The accountants' letter referred to in
Section 4(k).]
[(5) The officers' certificate referred to in
Section 4(l).]
Other Provisions:
ANNEX II
The Mead Corporation
Administrative Procedure
This Administrative Procedure relates to the
Securities defined in the Distribution Agreement, dated
October 20, 1997 (the "Distribution Agreement"), between The
Mead Corporation (the "Company") and Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(together, the "Agents"), to which this Administrative
Procedure is attached as Annex II. Defined terms used
herein and not defined herein shall have the meanings given
such terms in the Distribution Agreement, the Prospectus as
amended or supplemented or the Indenture.
The procedures to be followed with respect to the
settlement of sales of Securities directly by the Company to
purchasers solicited by an Agent, as agent, are set forth
below. Part I describes procedures of general applicability
with respect to such Securities. Part II below describes
procedures specifically and exclusively applicable (any
procedure in Part I below to the contrary notwithstanding)
to such Securities which are either Global Certificates or
Book-Entry Securities (each as defined below). The terms
and settlement details related to a purchase of Securities
by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution
Agreement, unless the Company and such Agent otherwise agree
as provided in Section 2(b) of the Distribution Agreement,
in which case the procedures to be followed in respect of
the settlement of such sale will be as set forth below. An
Agent, in relation to a purchase of a Security by a
purchaser solicited by such Agent, is referred to herein as
the "Selling Agent" and, in relation to a purchase of a
Security by such Agent as principal other than pursuant to a
Terms Agreement, as the "Purchasing Agent".
The Company will advise each Agent in writing of
those persons with whom such Agent is to communicate
regarding offers to purchase Securities and the related
settlement details.
Unless otherwise specified in the applicable
Pricing Supplement, each Security will be issued only in
fully registered form and will be initially represented by
either a permanent global certificate (a "Global
Certificate") delivered to the Trustee, as agent for The
Depository Trust Company (the "Depository") or a certificate
(a "Definitive Certificate") delivered to a person
designated by an Agent. Each security which is represented
by a Global Certificate is referred to herein as a "Book-
Entry Security" (it being understood that only such Global
Certificate -- and not any such Book-Entry Security
represented thereby -- constitutes a "Security" under the
Indenture).
Pursuant to Sections 301 and 1002 of the
Indenture, the Company has appointed Citibank, N.A. as
Paying Agent (the "Paying Agent") and as Calculation Agent
(the "Calculation Agent") for the Securities. In addition,
the Company has appointed Citibank, N.A. as its agent (the
"Issuing Agent") in connection with certain procedures to be
followed with respect to the settlement of sales of
Securities, as set forth herein.
PART I: PROCEDURES OF APPLICABILITY TO BOTH
CERTIFICATED SECURITIES AND BOOK-
ENTRY SECURITIES
Posting Rates by the Company:
The Company and the Agents will discuss from time
to time the rates of interest per annum to be borne by and
the maturity of Securities that may be sold as a result of
the solicitation of offers by an Agent. The Company may
establish a fixed set of interest rates and maturities for
an offering period ("posting"). If the Company decides to
change already posted rates, it will promptly advise the
Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by
telephone or other appropriate means of all reasonable
offers to purchase Securities, other than those rejected by
such Agent. Each Agent may, in its discretion reasonably
exercised, reject any offer received by it in whole or in
part. Each Agent also may make offers to the Company to
purchase Securities as a Purchasing Agent. The Company will
have the sole right to accept offers to purchase Securities
and may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent
or Purchasing Agent, as the case may be, of its acceptance
or rejection of an offer to purchase Securities. If the
Company accepts an offer to purchase Securities, it will
confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information
to the Company by Selling Agent:
After the acceptance of an offer by the Company,
the Selling Agent or Purchasing Agent, as the case may be,
will communicate the following details of the terms of such
offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other
acceptable written means:
(1) Principal amount of Securities to be
purchased;
(2) Identification as a Fixed Rate Security,
Floating Rate Security or Zero Coupon
Security;
(3) If a Fixed Rate Security, the interest rate
and the initial interest payment date;
(4) Maturity Date;
(5) Specified Currency and, if the Specified
Currency is other than U.S. dollars, the
applicable Exchange Rate for such Specified
Currency and the Exchange Rate Agent;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing
Agent's discount, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a Security is redeemable by the Company,
such of the following as are applicable:
(i) Redemption Commencement Date,
(ii) Redemption Prices (% of par) and
Redemption Periods,
(iii) The Redemption Date and the Redemption
Price, and
(iv) Amount (% of par) that the Redemption
Price shall decline (but not below par)
on each anniversary of the Redemption
Commencement Date;
(v) The Make-Whole Premium, if any;
(11) If a Security is to be repaid at the
option of the Holder, the date on or after
which the Security is to be repaid, the
Repayment Price and additional provisions,
if any;
(12) If a Floating Rate Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Interest Rate,
(v) Minimum Interest Rate,
(vi) Initial Interest Rate,
(vii) Interest Rate Reset Dates,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(13) If an Amortizing Security, the
amortization provisions, formula and the
amortization schedule;
(14) If the amount of principal payable on a
Security will be determined by reference
to an index or formula, a full description
of the index or formula;
(15) If an OID Note, the total amount of OID,
the Yield to Maturity and the initial
accrual period of OID;
(16) Name, address and taxpayer identification
number of the registered owner;
(17) Denomination of certificates to be
delivered at settlement;
(18) Book-Entry Security or Certificated
Security; and
(19) Any other applicable terms.
Preparation of Pricing Supplement by the Company:
If the Company accepts an offer to purchase a
Security, it will prepare a Pricing Supplement. The Company
will supply at least ten copies of such Pricing Supplement
to the Selling Agent or Purchasing Agent, as the case may
be, not later than 5:00 p.m., New York City time, on the
business day following the date of acceptance of such offer,
or if the Company and the purchaser agree to settlement on
the date of such acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have
each Pricing Supplement filed with the Commission under Rule
424(b) not later than the close of business of the
Commission on the second business day (or such other date
Rule 424 shall require) following the date on which such
Pricing Supplement is first used. One copy of such filed
document will be sent by telecopy or overnight express (for
delivery not later than 11:00 A.M. on the Business Day next
following the trade date) to the Selling Agent or the
Purchasing Agent, as the case may be, at the following
applicable addresses: Goldman, Sachs & Co., 85 Broad
Street, New York, New York 10004, Facsimile Transmission No.
(212) 902-4103, Attention: Don Hansen, Registration, 18th
Floor; Merrill Lynch, Pierce, Fenner & Smith Incorporated,
c/o Tritech Services, 44-B Colonial Drive, Piscataway, New
Jersey 08854, Facsimile Transmission No. (732) 885-2774/5/6,
Telephone No. (732) 885-2768, Attention: Nachman Kimerling.
Delivery of Confirmation and
Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of
a Security a written confirmation of the sale and delivery
and payment instructions. In addition, the Selling Agent
will deliver to such purchaser or its agent the Prospectus
as amended or supplemented (including the Pricing
Supplement) in relation to such Security prior to or
together with the earlier of the delivery to such purchaser
or its agent of (a) the confirmation of sale or (b) the
Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by
a Purchasing Agent and accepted by the Company will be
settled on a date (the "Settlement Date") which is the third
business day after the date of acceptance of such offer,
unless the Company and the purchaser agree to settlement (a)
on any other business day after the acceptance of such offer
or (b) with respect to an offer accepted by the Company
prior to 10:00 a.m., New York City time, on the date of such
acceptance.
Instruction from the Company to
Issuing Agent for Preparation of Securities:
After receiving the Sale Information from the
Selling Agent or Purchasing Agent, as the case may be, the
Company will communicate such Sale Information to the
Issuing Agent by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Company will instruct the Issuing Agent by
facsimile transmission or other acceptable written means to
authenticate and deliver the Securities no later than 2:15
p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 2:00 p.m.,
New York City time, on the second business day prior to the
Settlement Date unless, in the case of Securities evidenced
by a Definitive Certificate, the Settlement Date is the date
of acceptance by the Company of the offer to purchase such
Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time. The Trustee
will authenticate and deliver to the Issuing Agent each
Security in accordance with the Company's instructions.
Preparation and Delivery of Securities
by Issuing Agent and Receipt of Payment Therefor:
The Issuing Agent will prepare each Security and
appropriate receipts that will serve as the documentary
control of the transaction.
In the case of a sale of Securities to a purchaser
solicited by an Agent, the Issuing Agent will, by 2:15 p.m.,
New York City time, on the Settlement Date, deliver the
Securities to the Selling Agent for the benefit of the
purchaser of such Securities against delivery by the Selling
Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Securities in
immediately available funds to the Company in an amount
equal to the issue price of the Securities less the Selling
Agent's commission; provided that the Selling Agent reserves
the right to withhold payment for which it has not received
funds from the purchaser. The Company shall not use any
proceeds advanced by a Selling Agent to purchase securities
or carry any securities in violation of Regulations G, T, U
or X of the Federal Reserve Board or otherwise in violation
of law.
In the case of a sale of Securities to a
Purchasing Agent, the Issuing Agent will, by 2:15 p.m., New
York City time, on the Settlement Date, deliver the
Securities to the Purchasing Agent against delivery by the
Purchasing Agent of a receipt therefor. On the Settlement
Date the Purchasing Agent will deliver payment for such
Securities in immediately available funds to the Company in
an amount equal to the issue price of the Securities less
the Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent)
fails to make payment to the Selling Agent for a Security or
the Selling Agent fails to make payment to the Company, the
Selling Agent will promptly notify the Trustee and the
Company thereof by telephone (confirmed in writing) or by
facsimile transmission or other acceptable written means.
The Selling Agent will immediately return the Security to
the Issuing Agent. Immediately upon receipt of such
Security by the Issuing Agent, the Company will return to
the Selling Agent an amount equal to the amount previously
paid to the Company in respect of such Security. The
Company will reimburse the Selling Agent on an equitable
basis for its loss of the use of funds during the period
when they were credited to the account of the Company.
The Issuing Agent will cancel the Security in
respect of which the failure occurred, make appropriate
entries in its records and, unless otherwise instructed by
the Company, destroy the Security.
PART II: PROCEDURES APPLICABLE TO BOOK-ENTRY
SECURITIES AND GLOBAL CERTIFICATES
In connection with the qualification of Book-Entry
Securities for eligibility in the book-entry system
maintained by the Depository, the Trustee and the Paying
Agent will perform the custodial, document control and
administrative functions described below, in accordance with
their respective obligations under a Letter of
Representations from the Company and the Trustee to the
Depository, dated October 20, 1997, and a Medium-Term Note
Certificate Agreement, dated October 31, 1988, between
Citibank, N.A. and the Depository (the "Certificate
Agreement"), and the obligations of the Trustee as a
participant in the Depository, including the Depository's
Same-Day Funds Settlement System ("SDFS"). It is understood
that the ownership interests of purchasers of Book-Entry
Securities will be credited to the book-entry accounts of
one or more participants in the Depository (each a
"Participant") in accordance with the Depository's customary
practices and reflected in the records of such Participants
or one or more indirect Participants in the Depository
designated by such purchasers in accordance with the
arrangements between such purchasers and such Participants
and indirect participants. As used in this Part II, the
term "Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in The City of New York are authorized or
obligated by law or executive order to close.
Issuance: All Fixed Rate Securities which are
Book-Entry Securities and have the
same Original Issue Date,
redemption or repayment provisions,
Interest Payment Dates, interest
rate, interest payment periods and
Stated Maturity (collectively, the
"Fixed Rate Terms") will be
represented initially by a single
Global Certificate in fully
registered form without coupons;
all Floating Rate Securities which
are Book-Entry Securities and have
the same Original Issue Date,
redemption or repayment provisions,
Interest Payment Dates, interest
payment periods, Interest Rate
Basis, Initial Interest Rate, Index
Maturity, Spread or Spread
Multiplier, if any, Minimum
Interest Rate, if any, Maximum
Interest Rate, if any, and Stated
Maturity (collectively, the
"Floating Rate Terms") will be
represented initially by a single
Global Certificate in fully
registered form without coupons;
and all Zero Coupon Securities
which are Book-Entry Securities and
have the same Original Issue Date,
redemption or repayment provisions,
Yield to Maturity, Specified
Currency and Stated Maturity
(collectively, the "Zero Coupon
Terms") will be represented
initially by a single Global
Certificate in fully registered
form without coupons.
Identification: The Company has arranged with the
CUSIP Service Bureau of Standard &
Poor's Corporation (the "CUSIP
Service Bureau") for the
reservation of approximately 900
CUSIP numbers which have been
reserved for future assignment and
relating to Book-Entry Securities,
and the Company has delivered to
the Issuing Agent and the
Depository such list of such CUSIP
numbers. The Issuing Agent will
assign CUSIP numbers to Global
Certificates representing Book-
Entry Securities as described below
under Settlement Procedure C. The
Depository will notify the CUSIP
Service Bureau periodically of the
CUSIP numbers that the Company has
assigned to Global Certificates
representing Book-Entry Securities.
The Trustee will notify the Company
at any time when fewer than 100 of
the reserved CUSIP numbers remain
unassigned to Global Certificates
representing Book-Entry Securities,
and, if it deems necessary, the
Company will reserve additional
CUSIP numbers for assignment to
Global Certificates representing
Book-Entry Securities. Upon
obtaining such additional CUSIP
numbers, the Company will deliver a
list of such additional numbers to
the Issuing Agent and the
Depository. Book-Entry Securities
having an aggregate principal
amount in excess of $200,000,000
and otherwise required to be
represented by the same Global
Certificate will instead be
represented by two or more Global
Certificates which shall all be
assigned the same CUSIP number.
Registration: Each Global Certificate will be
registered in the name of Cede &
Co., as nominee for the Depository,
on the Security Register maintained
by the Trustee under the Indenture.
On the first Business Day of each
month, the Trustee will deliver to
the Company a written statement
indicating the total principal
amount of Outstanding Book-Entry
Securities as of the immediately
preceding Business Day.
Transfers: Transfers of interests in a Book-
Entry Security will be effected in
accordance with arrangements in
effect between Participants (and in
certain cases, one or more indirect
participants in the Depository) and
the beneficial transferors and
beneficial transferees of such
Book-Entry Security, and the
interests of Participants therein
will be reflected as appropriate by
book entries made by the
Depository.
Exchanges: The Issuing Agent may deliver to
the Depository and the CUSIP
Service Bureau at any time a
written notice specifying (a) the
CUSIP numbers of two or more Global
Certificates (i) having the same
Fixed Rate Terms, Floating Rate
Terms or Zero Coupon Terms, as the
case may be (except that Original
Issue Dates need not be the same),
(ii) for which interest (if any)
has been paid to the same date and
(iii) which otherwise constitute
Securities of the same series and
tenor under the Indenture; (b) a
date, occurring at least 30 days
after such written notice is
delivered and at least 30 days
before the next Interest Payment
Date (if any) for such Book-Entry
Securities, on which such Global
Certificates shall be exchanged for
a single replacement Global
Certificate; and (c) a new CUSIP
number, obtained from the Company,
to be assigned to such replacement
Global Certificate. Upon receipt
of such a notice, the Depository
will send to its participants
(including the Issuing Agent) a
written reorganization notice to
the effect that such exchange will
occur on such date. Prior to the
specified exchange date, the
Issuing Agent will deliver to the
CUSIP Service Bureau written notice
setting forth such exchange date
and the new CUSIP number and
stating that, as of such exchange
date, the CUSIP numbers of the
Global Certificates to be exchanged
will no longer be valid. On the
specified exchange date, the
Issuing Agent will exchange such
Global Certificates for a single
Global Certificate authenticated by
the Trustee and bearing the new
CUSIP number, and the CUSIP numbers
of the exchanged Global
Certificates will, in accordance
with CUSIP Service Bureau
procedures, be retired and not
reassigned. Notwithstanding the
foregoing, if the Global
Certificates to be exchanged exceed
$200,000,000 in aggregate principal
amount, one replacement Global
Certificate will be authenticated
and issued to represent each
$200,000,000 of principal amount of
the exchanged Global Certificates
and an additional Global
Certificate will be authenticated
and issued to represent any
remaining principal amount of such
Global Certificates (see
"Denominations" below).
Denominations: Book-Entry Securities will be
issued in denominations of $1,000
principal amount (or the
approximate equivalent in foreign
currencies, currency units or
composite currencies) and any
larger denomination which is an
integral multiple thereof. Global
Certificates will be denominated in
principal amounts not in excess of
$200,000,000. If one or more Book-
Entry Securities having an
aggregate principal amount in
excess of $200,000,000 would, but
for the preceding sentence, be
represented by a single Global
Certificate, then one Global
Certificate will be issued to
represent each $200,000,000
principal amount of such Book-Entry
Security or Book-Entry Securities
and an additional Global
Certificate will be issued to
represent any remaining principal
amount of such Book-Entry Security
or Book-Entry Securities. In such
a case, each of the Global
Certificates representing such
Book-Entry Security or Securities
shall be assigned the same CUSIP
number.
Interest: General. The Depository will
arrange for each pending deposit
message described under Settlement
Procedure C below to be transmitted
to Standard & Poor's, which will
use the message to include certain
information regarding the related
Book-Entry Notes in the appropriate
daily bond report published by
Standard & Poor's.
Notice of Interest Payments and
Regular Record Dates. On the first
Business Day of January, April,
July and October of each year, the
Paying Agent will deliver to the
Company and to the Dividend
Department of the Depository a
written list of Regular Record
Dates and Interest Payment Dates
that will occur during the
six-month period beginning on such
first Business Day with respect to
Global Certificates representing
Book-Entry Securities which are
Floating Rate Notes. Promptly
after each Interest Determination
Date for Book-Entry Securities
which are Floating Rate Notes, the
Calculation Agent will notify
Standard & Poor's of the interest
rates determined on such Interest
Determination Date.
Payments of Principal
and Interest: Payments of Interest Only.
Promptly after each Regular Record
Date, the Paying Agent will deliver
to the Company and the Dividend
Department of the Depository a
written notice specifying by CUSIP
number the amount of interest (if
any) to be paid on each Global
Certificate representing Book-Entry
Securities on the following
Interest Payment Date (other than
an Interest Payment Date coinciding
with the Maturity of such
Certificate) and the total of such
amounts. The Depository will
confirm the amount payable (if any)
on each Global Certificate
representing Book-Entry Securities
on such Interest Payment Date by
reference to the daily bond reports
published by Standard & Poor's. On
such Interest Payment Date the
Company will pay to the Paying
Agent, and the Paying Agent in turn
will pay to the Depository, such
total amount of interest due (other
than at Maturity of such
Certificate), at the times and in
the manner set forth below under
"Manner of Payment". If an
Interest Payment Date for a Book-
Entry Note is not a Business Day,
the payment due on such day shall
be made on the next succeeding
Business Day and no interest shall
accrue on such payment for the
period from and after such Interest
Payment Date.
Payments at Maturity or upon
Redemption or Repayment. On or
about the first Business Day of
each month, the Paying Agent will
deliver to the Company and the
Depository a written list of
principal, premium, if any, and
interest to be paid on each Global
Certificate representing Book-Entry
Securities maturing either at
Stated Maturity or on a Redemption
Date or a Repayment Date
("Maturity") in the following
month. The Paying Agent, the
Company and the Depository will
confirm the amounts of such
principal, premium (if any) and
interest payments with respect to
each such Global Certificate
representing Book-Entry Securities
on or about the fifth Business Day
preceding the Maturity of such
Global Certificate representing
Book-Entry Securities. At such
Maturity, the Company will pay to
the Paying Agent, and the Paying
Agent in turn will pay to the
Depository, the principal amount of
such Global Certificate
representing Book-Entry Securities,
together with interest and premium,
if any, due at such Maturity, at
the times and in the manner set
forth below under "Manner of
Payment". Promptly after payment
to the Depository of the principal,
interest and premium, if any, due
at the Maturity of all Book-Entry
Securities represented by a
particular Global Certificate, the
Paying Agent will deliver to the
Trustee for cancellation such
Global Certificate.
Manner of Payment. The total
amount of principal, premium and
interest due on Global Securities
representing Book-Entry Securities
on any Interest Payment Date or at
Maturity shall be paid by the
Company to the Paying Agent, in
funds immediately available for use
by the Trustee as of 9:30 a.m., New
York City time, on such date. The
Company will make such payment on
such Global Certificates
representing Book-Entry Securities
by instructing the Paying Agent to
withdraw funds from an account
maintained by the Company at the
Paying Agent. The Company will
confirm such instructions in
writing to the Paying Agent. For
principal payments at Maturity,
prior to 10:00 a.m., New York City
time, on such Maturity or as soon
as possible thereafter after
receipt of such funds from the
Company, the Paying Agent will pay
by separate wire transfer (using
Fedwire message entry instructions
in a form previously specified by
the Depository) to an account at
the Federal Reserve Bank of New
York previously specified by the
Depository, in funds available for
immediate use by the Depository,
each payment of interest, principal
and premium, if any, due on Global
Certificates representing Book-
Entry Certificates on such date;
and for interest payments, the
Paying Agent will pay the
Depository in same-day funds on the
Interest Payment Date in accordance
with existing arrangements between
the Paying Agent and the
Depository. Thereafter on each
such date, the Depository will pay,
in accordance with its SDFS
operating procedures then in
effect, such amounts in funds
available for immediate use to the
respective Participants in whose
names such Book-Entry Securities
are recorded in the book-entry
system maintained by the
Depository. Once payment has been
made to the Depository, neither the
Company, the Trustee nor the Paying
Agent shall have any responsibility
or liability for the payment by the
Depository of the principal of, or
premium, if any, or interest on,
the Book-Entry Securities to such
Participants.
Withholding Taxes. The amount of
any taxes required under applicable
law to be withheld from any
interest payment on a Book-Entry
Security will be determined and
withheld by the Participant,
indirect participant in the
Depository or other Person
responsible for forwarding payments
and materials directly to the
beneficial owner of such Book-Entry
Security, or as applicable law may
otherwise require.
Settlement Procedures: Settlement Procedures with regard
to each Book-Entry Security sold by
each Agent, as agent of the
Company, will be as follows:
A. After the acceptance of an
offer by the Company with
respect to a Book-Entry
Security, the Selling Agent or
Purchasing Agent, as the case
may be, will communicate the
following details of the terms
of such offer (the "Book-Entry
Sale Information") to the
Company by telephone confirmed
in writing or by facsimile
transmission or other
acceptable written means:
(1) Principal amount of the
Book-Entry Security to be
purchased;
(2) Identification as a Fixed
Rate Security, Floating
Rate Security or Zero
Coupon Security;
(3) If a Fixed Rate Security,
the interest rate and the
initial interest payment
date;
(4) Maturity Date;
(5) Specified Currency and,
if the Specified Currency
is other than U.S.
dollars, the applicable
Exchange Rate for such
Specified Currency and
the Exchange Rate Agent;
(6) Issue Price;
(7) Selling Agent's
commission or Purchasing
Agent's discount, as the
case may be;
(8) Net proceeds to the
Company;
(9) Settlement Date;
(10) If a redeemable Security,
such of the following as
are applicable:
(i) Redemption
Commencement Date,
(ii) Redemption Prices (%
of par) and
Redemption Periods,
(iii) the Redemption Date
and the Redemption
Price, and
(iv) Amount (% of par)
that the Redemption
Price shall decline
(but not below par)
on each anniversary
of the Redemption
Commencement Date,
(v) The Make-Whole
Premium, if any;
(11) If a Security is to be
repaid at the option of
the Holder, the date on
or after which the
Security is to be repaid,
the Repayment Price and
additional provisions, if
any;
(12) If a Floating Rate
Security, such of the
following as are
applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread
Multiplier,
(iv) Maximum Interest
Rate,
(v) Minimum Interest
Rate,
(vi) Initial Interest
Rate,
(vii) Interest Rate Reset
Dates,
(viii) Calculation Dates,
(ix) Interest
Determination Dates,
(x) Interest Payment
Dates,
(xi) Regular Record
Dates, and
(xii) Calculation Agent;
(13) If an Amortizing
Security, the
amortization provisions
formula and the
amortization schedule;
(14) If the amount of
principal payable on a
Security will be
determined by reference
to an index or formula, a
full description of such
index or formula;
(15) If an OID Note, the total
amount of OID, the Yield
to Maturity and the
initial accrual period of
OID;
(16) The taxpayer
identification number of
the purchaser;
(17) Identification numbers of
the participant accounts
maintained by the
Depository on behalf of
such Agent; and
(18) Any other applicable
terms.
B. Upon receiving the Book-Entry
Sale Information from the
Selling Agent or the
Purchasing Agent, as the case
may be, the Issuing Agent will
assign a CUSIP number to the
Global Certificate
representing the Book-Entry
Security and the Company and
will advise the Issuing Agent
by facsimile or electronic
transmission of the Book-Entry
Sale Information received from
the Selling Agent or the
Purchasing Agent, as the case
may be, and the name of such
Agent.
C. The Trustee will enter through
the Depository Terminal
System, a pending deposit
message (the form of which has
been previously furnished to
the Issuing Agent by the
Depository) specifying the
following settlement
information, which information
will be communicated to the
Depository, such Agent and
Standard & Poor's:
1. Book-Entry Sale
Information (as set forth
in Settlement Procedure
A).
2. Identification as a Fixed
Rate Security, Floating
Rate Security or Zero
Coupon Security.
3. Initial Interest Payment
Date for such Security,
number of days by which
such date succeeds the
related record date for
Depository purposes (or,
in the case of Floating
Rate Notes which reset
daily or weekly, the date
five calendar days
preceding such Initial
Interest Payment Date)
and, if then calculable,
the amount of interest
payable on such Initial
Interest Payment Date
(which amount shall have
been confirmed by the
Trustee).
4. CUSIP number of the
Global Certificate
representing such Book-
Entry Security.
5. Whether such Global
Certificate will
represent any other Book-
Entry Securities issued
or to be issued (to the
extent then known).
6. Whether such Note is an
Amortizing Note (by an
appropriate notation in
the comments field of
DTC's Participant
Terminal System).
D. The Company will instruct the
Issuing Agent by facsimile
transmission or other
acceptable written means to
complete and authenticate such
Global Certificate, and to
register such Global
Certificate in the name of
Cede & Co., as nominee of the
Depository.
E. The Issuing Agent will
complete and authenticate the
Global Certificate
representing such Book-Entry
Security and register such
Global Certificate in the name
of Cede & Co., as nominee of
the Depository. The Trustee
will take delivery thereof as
agent for the Depository.
F. The Depository will credit
such Book-Entry Security to
the participant account of the
Issuing Agent maintained by
the Depository.
G. The Issuing Agent will enter
an SDFS deliver order through
the Depository's Participant
Terminal System instructing
the Depository (i) to debit
such Book-Entry Security to
the Issuing Agent's
participant account and credit
such Book-Entry Security to
the participant account of the
Selling Agent or the
Purchasing Agent, as the case
may be, maintained by the
Depository and (ii) to debit
the settlement account of the
Selling Agent or the
Purchasing Agent, as the case
may be, and credit the
settlement account of the
Issuing Agent maintained by
the Depository, in an amount
equal to the price of such
Book-Entry Security less such
Agent's commission or
discount, as the case may be.
Any entry of such a deliver
order shall be deemed to
constitute a confirmation by
the Trustee and the Issuing
Agent to the Depository that
(i) the Global Certificate
representing such Book-Entry
Security has been issued and
authenticated and (ii) the
Issuing Agent is holding such
Global Certificate as agent of
the Depository pursuant to the
Certificate Agreement.
H. The Selling Agent or the
Purchasing Agent, as the case
may be, will enter an SDFS
deliver instruction through
the Depository's Participant
Terminal System instructing
the Depository (i) to debit
such Book-Entry Security to
the participant account of
such Agent and credit such
Book-Entry Security to the
participant accounts of the
Participants with respect to
such Book-Entry Security
maintained by the Depository
and (ii) to debit the
settlement accounts of such
Participants and credit the
settlement account of such
Agent maintained by the
Depository in an amount equal
to the price of such Book-
Entry Security.
I. Transfers of funds in
accordance with SDFS deliver
orders described in Settlement
Procedures G and H will be
settled in accordance with
SDFS operating procedures in
effect on the Settlement Date.
J. The Issuing Agent will credit
to an account of the Company
maintained at the Issuing
Agent funds available for
immediate use in the amount
transferred to the Issuing
Agent in accordance with
Settlement Procedure G.
K. The Issuing Agent will send a
report from time to time by
first-class mail to the
Company setting forth the
principal amount of Global
Certificates representing the
Book-Entry Securities
Outstanding as of the related
Settlement Date after giving
effect to such transaction and
all other offers to purchase
Securities of which the
Company has advised the
Issuing Agent but which have
not yet been settled.
L. The Selling Agent or the
Purchasing Agent, as the case
may be, will confirm the
purchase of such Book-Entry
Security to the purchaser
either by transmitting to the
Participants with respect to
such Book-Entry Security a
confirmation order through the
Depository's Participant
Terminal System or by mailing
a written confirmation to such
purchaser.
M. Notwithstanding the foregoing,
the Selling Agent shall in all
cases take the actions
described under the caption
"Delivery of Confirmation and
Prospectus to Purchaser by
Selling Agent" in Part I of
this Administrative Procedure,
at the time or times specified
under such caption for such
actions.
Settlement Procedures
Timetable: For orders of Book-Entry Securities
accepted by the Company, Settlement
Procedures "A" through "L" set
forth above shall be completed as
soon as possible, but not later
than the respective times (New York
City time) set forth below:
Settlement
Procedure Time
A 11:00 a.m. on the
trade date
B 12:00 Noon on the
trade date
C 2:00 p.m. on the
trade date
D 3:00 p.m. on the
Business Day before
Settlement Date
E 9:00 a.m. on
Settlement Date
F 10:00 a.m. on
Settlement Date
G-H 2:00 p.m. on
Settlement Date
I 4:45 p.m. on
Settlement Date
J-L 5:00 p.m. on
Settlement Date
If a sale is to be settled more
than one Business Day after the
trade date, Settlement Procedures
A, B, and C may, if necessary, be
completed at any time prior to the
specified times on the first
Business Day after the trade date.
In connection with a sale which is
to be settled more than one
Business Day after the trade date,
if the initial interest rate for a
Floating Rate Note is not known at
the time that Settlement Procedure
A is completed, Settlement
Procedures B and C shall be
completed as soon as such rates
have been determined, but no later
than 11:00 a.m. and 2:00 p.m., New
York City time, respectively, on
the second Business Day before the
Settlement Date. Settlement
Procedure I is subject to extension
of Fedwire closing deadlines and in
the other events specified in the
SDFS operating procedures in effect
on the settlement date.
If settlement of a Book-Entry
Security is rescheduled or
cancelled, the Company will as soon
as practicable give the Trustee
notice to such effect. The Trustee
will deliver to the Depository,
through the Depository's
Participant Terminal System, a
cancellation message (the form of
which has been previously furnished
to the Trustee by the Depository)
to such effect by no later than
2:00 p.m., New York City time, on
the Business Day immediately
preceding the scheduled Settlement
Date (provided the Issuing Agent
received such notice from the
Company by noon on the business day
immediately preceding the
Settlement Date) and in any case as
soon as practicable. A copy of
such message will be routed through
the facilities of the Depository to
the Selling Agent and Standard &
Poor's.
Failure to Settle: If the Issuing Agent fails to enter
in timely fashion an SDFS deliver
order with respect to any Book-
Entry Security or any portion of a
Global Certificate representing a
Book-Entry Security pursuant to
Settlement Procedure G, or if the
Selling Agent or the Purchasing
Agent, as the case may be, fails to
enter in timely fashion an SDFS
deliver order with respect to such
Book-Entry Security pursuant to
Settlement Procedure H, the Issuing
Agent may deliver to the
Depository, through the
Depository's Participant Terminal
System, as soon as practicable, a
withdrawal message (the form of
which has been previously furnished
to the Issuing Agent by the
Depository) instructing the
Depository to debit such Book-Entry
Security to the participant account
of the Issuing Agent maintained at
the Depository. A copy of such
message will be routed through the
facilities of the Depository to
such Agent. The Depository will
process the withdrawal message,
provided that such participant
account contains Book-Entry
Securities having the same Fixed
Rate Terms, Floating Rate Terms or
Zero Coupon Terms, as the case may
be, having an aggregate principal
amount that is at least equal to
the principal amount to be debited.
If withdrawal messages are
processed with respect to all the
Book-Entry Securities represented
by a particular Global Certificate,
the Issuing Agent will cancel
immediately such Global
Certificate, make appropriate
entries in its records and, unless
otherwise instructed by the
Company, destroy the Global
Certificate. The CUSIP number
assigned to such Global Certificate
shall, in accordance with CUSIP
Service Bureau procedures, be
retired and not reassigned. If
withdrawal messages are processed
with respect to only a portion of
the Book-Entry Securities
represented by a particular Global
Certificate, the Issuing Agent will
exchange such Global Certificate
for two Global Certificates
authenticated by the Trustee, one
of which shall represent the Book-
Entry Securities for which
withdrawal messages are processed
and shall be cancelled by the
Trustee and destroyed immediately
after issuance, and the other of
which shall represent the other
Book-Entry Securities previously
represented by the surrendered
Global Certificate and shall bear
the CUSIP number of the surrendered
Global Certificate. The Company
will reimburse such Agent on an
equitable basis for its loss of the
use of funds during any period when
the funds were credited to the
account of the Company in
connection with such attempted
settlement.
If the purchase price for any Book-
Entry Security is not timely paid
to the Participants with respect to
such Security by the beneficial
purchaser thereof or by a person,
including an indirect participant
in the Depository, acting on behalf
of such purchaser (other than the
Purchasing Agent, if any), such
Participants and, in turn, the
Selling Agent or the Purchasing
Agent, as the case may be, may
enter SDFS deliver orders through
the Depository's Participant
Terminal System reversing the
orders entered pursuant to
Settlement Procedures G and H,
respectively. Immediately
thereafter, the Issuing Agent will
deliver the withdrawal message and
take the related actions described
in the preceding paragraph. The
Company will reimburse such Agent
on an equitable basis for its loss
of the use of funds during any
period when the funds were credited
to the account of the Company in
connection with such attempted
settlement.
Notwithstanding the foregoing, upon
any failure to settle with respect
to any Book-Entry Security or any
portion of a Global Certificate
representing a Book-Entry Security,
the Depository may take any actions
in accordance with its SDFS
operating procedures then in
effect. In the event of a failure
to settle with respect to any Book-
Entry Security that was to have
been represented by a Global
Certificate also representing other
Book-Entry Securities, the Issuing
Agent will provide, in accordance
with Settlement Procedures D and E,
for the authentication and issuance
of a Global Certificate
representing the remaining
principal amount to have been
represented by such Global
Certificate and will make
appropriate entries in its records.
Issuing and Paying
Agents Not to Risk
Funds: Nothing herein will be deemed to
require the Issuing Agent or the
Paying Agent to risk or expend its
own funds in connection with any
payment to the Company, the Agents,
the Depository or any
securityholder, it being understood
by all parties that payments made
by the Issuing Agent or the Paying
Agent to any party will be made
only to the extent that funds are
provided to the Issuing Agent or
the Paying Agent, as the case may
be, for such purpose.
ANNEX III
Accountant's Letter
Pursuant to Section 4(k) and Section 6(e), as the case may
be, of the Distribution Agreement and in relation to a
purchase of a Security by a purchaser solicited by an Agent
(and not in relation to a purchase of a Security by an Agent
as principal) upon the receipt by the accountants of a
written opinion by the Agents' attorney stating that the
Agents have a due diligence defense under Section 11 of the
Act or of a representation letter from the Agents meeting
the requirements of paragraph 6 of SAS No. 72, "Letters for
Underwriters and Certain Other Requesting Parties", the
accountants shall furnish letters to the Agents to the
effect that:
(i) They are independent certified public
accountants with respect to the Company and its
subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
and any pro forma consolidated condensed financial
statements included or incorporated in the Registration
Statement or the Prospectus comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations thereunder;
(ii) In their opinion, the financial statements
and any supplementary financial information and
schedules audited by them and included or incorporated
by reference in the Registration Statement or the
Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act
and the related published rules and regulations
thereunder;
(iii) They performed the procedures specified by
the American Institute Certified Public Accountants for
a review of interim financial information as described
in SAS No. 71, "Interim Financial Information", on the
unaudited condensed statements of income, condensed
balance sheets and statements of cash flows included in
the Prospectus and/or included in the Company's
quarterly report on Form 10-Q incorporated by reference
into the Prospectus; and on the basis of specified
procedures including inquiries of officials of the
Company who have responsibility for financial and
accounting matters regarding whether the unaudited
condensed financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material
respects with the applicable accounting requirements of
the Act and the related published rules and
regulations, nothing came to their attention that
caused them to believe that the unaudited condensed
financial statements do not comply as to form in all
material respects with the applicable accounting
requirements of the Act and the related published rules
and regulations;
(iv) The unaudited selected financial information
with respect to the results of operations and financial
position of the Company for the five most recent fiscal
years included in the Prospectus and included or
incorporated by reference in Item 6 of the Company's
Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after
restatement where applicable) in the audited financial
statements for five such fiscal years which were
included or incorporated by reference in the Company's
Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the
Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of
limited procedures specified in such letter nothing
came to their attention as a result of the foregoing
procedures that caused them to believe that this
information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402
and 503(d), respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not
constituting an audit in accordance with generally
accepted auditing standards, consisting of a reading of
the unaudited financial statements and other
information referred to below, a reading of the latest
available interim financial statements of the Company,
inspection of the minute books of the Company since the
date of the latest audited financial statements
included or incorporated by reference in the
Prospectus, inquiries of officials of the Company
responsible for financial and accounting matters and
such other inquiries and procedures as may be specified
in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited statements of income,
condensed balance sheets and statements of cash
flows included in the Prospectus and/or included
or incorporated by reference in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Act and the related
published rules and regulations, or (ii) any
material modifications should be made to the
unaudited statements of income, condensed balance
sheets and statements of cash flows included in
the Prospectus or included in the Company's
Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus for them to be in
conformity with generally accepted accounting
principles;
(B) any other unaudited income statement
data and balance sheet items included in the
Prospectus do not agree with the corresponding
items in the unaudited financial statements from
which such data and items were derived, and any
such unaudited data and items were not determined
on a basis substantially consistent with the basis
for the corresponding amounts in the audited
financial statements included or incorporated by
reference in the Company's Annual Report on Form
10-K for the most recent fiscal year;
(C) any unaudited pro forma condensed
financial statements included or incorporated by
reference in the Prospectus do not comply as to
form in all material respects with the applicable
accounting requirements of the Act and the
published rules and regulations thereunder or the
pro forma adjustments, if any, have not been
properly applied to the historical amounts in the
compilation of those statements;
(D) as of a specified date not more than
five days prior to the date of such letter, there
have been any changes in the capital stock (other
than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-
outs of performance shares and upon conversions of
convertible securities, in each case which were
outstanding on the date of the latest balance
sheet included or incorporated by reference in the
Prospectus) or any increase in the long-term debt
of the Company, or any decreases in net current
assets or stockholders' equity or other items
specified by the Agents, or any increases in any
items specified by the Agents, in each case as
compared with amounts shown in the latest balance
sheet included or incorporated by reference in the
Prospectus, except in each case for changes,
increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(E) for the period from the date of the
latest financial statements included or
incorporated by reference in the Prospectus to the
specified date referred to in Clause (D) there
were any decreases in net sales, gross profit,
earnings from operations, earnings from continuing
operations or the total or per share amounts of
consolidated net earnings or other items specified
by the Agents, or any increases in any items
specified by the Agents, in each case as compared
with the comparable period of the preceding year
and with any other period of corresponding length
specified by the Agents, except in each case for
increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(vii) In addition to the audit referred to their
report(s) included or incorporated by reference in the
Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred
to in paragraphs (iii) and (vi) above, they have
carried out certain specified procedures, not
constituting an audit in accordance with generally
accepted auditing standards, with respect to certain
amounts, percentages and financial information
specified by the Agents which are derived from the
general accounting records of the Company, which appear
in the Prospectus (excluding documents incorporated by
reference), or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by
the Agents or in documents incorporated by reference in
the Prospectus specified by the Agents, and have
compared certain of such amounts, percentages and
financial information with the accounting records of
the Company and have found them to be in agreement.
All references in this Annex III to the Prospectus shall be
deemed to refer to the Prospectus (including the documents
incorporated by reference therein) as defined in the
Distribution Agreement as of the Commencement Date referred
to in Section 6(e) thereof and to the Prospectus as amended
or supplemented (including the documents incorporated by
reference therein) as of the date of the amendment,
supplement, incorporation or the Time of Delivery relating
to the Terms Agreement requiring the delivery of such letter
under Section 4(k) thereof in relation to the applicable
Securities for purposes of the letter delivered at the Time
of Delivery for such Securities.
THE MEAD CORPORATION
TO
CITIBANK, N.A.
Trustee
INDENTURE
Dated as of October 20, 1997
THE MEAD CORPORATION
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
Trust Indenture
Act Section Indenture Section
SECTION 310(a)(1) 609
(a)(2) 609
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 608
610
SECTION 311(a) 613
(b) 613
SECTION 312(a) 701
702(a)
(b) 702(b)
(c) 702(c)
SECTION 313(a) 703(a)
(b) 703(a)
(c) 703(a)
(d) 703(b)
SECTION 314(a) 704
(a)(4) 101
1004
(b) Not Applicable
(c)(1) 102
(c)(2) 102
(c)(3) Not Applicable
(d) Not Applicable
(e) 102
SECTION 315(a) 601
(b) 602
(c) 601
(d) 601
(e) 514
SECTION 316(a) 101
(a)(1)(A) 502
512
(a)(1)(B) 513
(a)(2) Not Applicable
(b) 508
(c) 104(c)
SECTION 317(a)(1) 503
(a)(2) 504
(b) 1003
SECTION 318(a) 107
------------------
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions . . . . . . . . . . . . . . . 1
Section 102. Compliance Certificates and Opinions . . 10
Section 103. Form of Documents Delivered to Trustee . 11
Section 104. Acts of Holders; Record Dates . . . . . . 11
Section 105. Notices, Etc., to Trustee and Company . . 14
Section 106. Notice to Holders; Waiver . . . . . . . . 14
Section 107. Conflict with Trust Indenture Act . . . . 15
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . 16
Section 109. Successors and Assigns . . . . . . . . . 16
Section 110. Separability Clause . . . . . . . . . . . 16
Section 111. Benefits of Indenture . . . . . . . . . . 16
Section 112. Governing Law . . . . . . . . . . . . . . 16
Section 113. Legal Holidays . . . . . . . . . . . . . 16
ARTICLE II
SECURITY FORMS
Section 201. Forms Generally . . . . . . . . . . . . . 17
Section 202. Form of Face of Security . . . . . . . . 17
Section 203. Form of Reverse of Security . . . . . . . 19
Section 204. Form of Trustee's Certificate of
Authentication . . . . . . . . . . . . . 23
ARTICLE III
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series . . 23
Section 302. Denominations . . . . . . . . . . . . . . 26
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . 27
Section 304. Temporary Securities . . . . . . . . . . 30
Section 305. Registration, Registration of Transfer
and Exchange . . . . . . . . . . . . . . 32
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . . . 36
Section 307. Payment of Interest; Interest Rights
Preserved . . . . . . . . . . . . . . . . 37
Section 308. Persons Deemed Owners . . . . . . . . . . 39
Section 309. Cancellation . . . . . . . . . . . . . . 40
Section 310. Computation of Interest . . . . . . . . . 41
Section 311. Certification by a Person Entitled
to Delivery of Bearer Security . . . . . 41
Section 312. Judgments . . . . . . . . . . . . . . . . 41
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture . 42
Section 402. Application of Trust Money . . . . . . . 43
ARTICLE V
REMEDIES
Section 501. Events of Default . . . . . . . . . . . . 43
Section 502. Acceleration of Maturity; Rescission
and Annulment . . . . . . . . . . . . . . 46
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . . 47
Section 504. Trustee May File Proofs of Claim . . . . 48
Section 505. Trustee May Enforce Claims Without
Possession of Securities . . . . . . . . 49
Section 506. Application of Money Collected . . . . . 49
Section 507. Limitation on Suits . . . . . . . . . . . 51
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest . 51
Section 509. Restoration of Rights and Remedies . . . 52
Section 510. Rights and Remedies Cumulative . . . . . 52
Section 511. Delay or Omission Not Waiver . . . . . . 52
Section 512. Control by Holders . . . . . . . . . . . 52
Section 513. Waiver of Past Defaults . . . . . . . . . 53
Section 514. Undertaking for Costs . . . . . . . . . . 54
Section 515. Waiver of Stay or Extension Laws . . . . 54
ARTICLE VI
THE TRUSTEE
Section 601. Certain Duties and Responsibilities . . . 54
Section 602. Notice of Defaults . . . . . . . . . . . 55
Section 603. Certain Rights of Trustee . . . . . . . . 55
Section 604. Not Responsible for Recitals or
Issuance of Securities . . . . . . . . . 56
Section 605. May Hold Securities . . . . . . . . . . . 56
Section 606. Money Held in Trust . . . . . . . . . . . 57
Section 607. Compensation and Reimbursement . . . . . 57
Section 608. Disqualification; Conflicting Interests . 57
Section 609. Corporate Trustee Required; Eligibility . 58
Section 610. Resignation and Removal; Appointment
of Successor . . . . . . . . . . . . . . 58
Section 611. Acceptance of Appointment by Successor . 60
Section 612. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 61
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . 61
Section 614. Appointment of Authenticating Agent . . . 62
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee
Names And Addresses of Holders . . . . . 63
Section 702. Preservation of Information; Communica-
tions to Holders . . . . . . . 64
Section 703 Reports by Trustee . . . . . . . . . . . 64
Section 704. Reports by Company . . . . . . . . . . . 65
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only
on Certain Terms . . . . . . . . . . . . 65
Section 802. Successor Substituted . . . . . . . . . . 67
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent
of Holders . . . . . . . . . . . . . . . 67
Section 902. Supplemental Indentures with Consent
of Holders . . . . . . . . . . . . . . . 69
Section 903. Execution of Supplemental Indentures. . . 70
Section 904. Effect Of Supplemental Indentures . . . . 71
Section 905. Conformity with Trust Indenture Act . . . 71
Section 906. Reference in Securities to
Supplemental Indentures . . . . . . . . . 71
ARTICLE X
COVENANTS
Section 1001. Payment of Principal, Premium and
Interest . . . . . . . . . . . . . . . . 71
Section 1002. Maintenance of Office or Agency . . . . . 71
Section 1003 Money for Securities Payments to
Be Held in Trust . . . . . . . . . . . . 73
Section 1004. Corporate Existence . . . . . . . . . . . 74
Section 1005. Maintenance of Properties . . . . . . . . 74
Section 1006. Limitation on Liens . . . . . . . . . . . 75
Section 1007. Limitation on Sale and Lease-Back . . . . 76
Section 1008. Statement by Officers as to Default . . . 77
Section 1009. Waiver of Certain Covenants . . . . . . . 77
Section 1010. Payment of Additional Amounts . . . . . . 78
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . . 79
Section 1102. Election to Redeem; Notice to Trustee . . 79
Section 1103. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . 79
Section 1104. Notice of Redemption . . . . . . . . . . 80
Section 1105. Deposit of Redemption Price . . . . . . . 81
Section 1106. Securities Payable on Redemption Date . . 81
Section 1107. Securities Redeemed in Part . . . . . . . 82
Section 1108. Repayment at the Option of Holders . . . 82
ARTICLE XII
SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . . 83
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . . . 83
Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . . 83
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . 84
Section 1302. Defeasance and Discharge . . . . . . . . 84
Section 1303. Covenant Defeasance . . . . . . . . . . . 85
Section 1304. Conditions to Defeasance or
Covenant Defeasance . . . . . . . . . . . 85
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions . . . . . 87
ARTICLE XIV
MEETINGS OF HOLDERS
Section 1401. Purposes of Which Meetings May
be Called . . . . . . . . . . . . . . . . 88
Section 1402. Call, Notice and Place of Meetings . . . 88
Section 1403. Persons Entitled to Vote at Meetings . . 89
Section 1404. Quorum; Action . . . . . . . . . . . . . 89
Section 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . . 90
Section 1406. Counting Votes and Recording
Action of Meetings . . . . . . . . . . . 91
________________
NOTE: This table of contents shall not, for any purpose, be
deemed to be a part of the Indenture.
INDENTURE, dated as of October 20, 1997, between THE
MEAD CORPORATION, a corporation duly organized and existing under
the laws of the State of Ohio (herein called the "Company"),
having its principal office at Courthouse Plaza Northeast,
Dayton, Ohio 45463, and CITIBANK, N.A., a national banking
association duly organized and existing under the laws of the
United States of America 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
agreed, for the equal and proportionate benefit of all Holders of
the securities or of series thereof, as follows:
ARTICLE I
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 in the
United States of America at the date of such computation;
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" means any Person, other than a Subsidiary,
in which the Company and/or any subsidiary at any time owns,
directly or indirectly, an aggregate of at least 50% of the
voting stock.
"Appraised Value" means the fair market value as
determined on the appraisal date or dates by an "expert"
acceptable to the Trustee and the Company. The term "Appraisal
Date" as used in this paragraph shall mean: (a) the date or dates
on which the appraisals conducted during 1994 were completed,
which appraisals were finalized on November 1, 1994; and (b)
thereafter, such later date or dates, if any, which is five years
after the last previous appraisal date under this Indenture,
provided that the Company may, at its option by thirty days'
written notice to the Trustee, fix any appraisal date at any date
which is not less than two and one-half years nor more than five
years after the last previous appraisal date under this
Indenture.
"Attributable Debt" means, as to any particular lease
entered into after the date hereof under which any Person is at
the time liable and at any date as of which the amount thereof is
to be determined, the total net amount of rent required to be
paid by such Person under such lease during the remaining term
thereof, discounted from the respective due dates thereof to such
date at a rate equal to the weighted average of the interest
rates borne by the Securities. The net amount of rent required
to be paid under any such lease for any such period shall be the
aggregate amount of the rent payable by the lessee with respect
to such period after excluding amounts required to be paid on
account of maintenance and repairs, insurance, taxes,
assessments, water and utility rates and similar charges. In the
case of any lease which is terminable by the lessee upon the
payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as
required to be paid under such lease subsequent to the first date
upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by
the Trustee to act on behalf of the Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper in an official
language of the country of publication or in the English
language, in either case customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which
the term is used or in the financial community of such place.
Where successive publications are required to be made in
Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form of
bearer securities established pursuant to Section 201 that is
payable to bearer.
"Board of Directors" means either the board of
directors of the Company or any duly authorized 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 or any other particular location referred to in the
Indenture or in the Securities, means, except as may otherwise be
provided in the form of Securities of any particular series
pursuant to the provisions of this Indenture, 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.
"CEDEL" means Cedel Societe Anonyme.
"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 at such time.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor Person
shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter "Company" shall mean such
successor Person.
"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 Vice Chairman of the Board, its
President, its Chief Financial Officer, its Controller or a Vice
President, and by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Shareholders' Equity" means the sum of
the consolidated shareholders' equity of the Company and its
consolidated subsidiaries, as shown on the most recent audited
consolidated balance sheet of the Company plus 75% of the excess
of the "Appraised Value" (as herein defined) of all timberlands
owned by the Company and its Subsidiaries over the book value
thereof.
"Corporate Trust office" means the principal corporate
trust office of the Trustee, which office on the date of
execution of this instrument is located at 111 Wall Street, 5th
Floor, New York, New York 10043.
"Corporation" includes corporations, associations,
companies, including, without limitation, limited liability
companies, joint-stock companies or business trusts.
The term "coupon" means any interest coupon
appertaining to a Bearer Security.
"Defaulted Interest" has the meaning specified in
Section 307.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in the form of
one or more Global Securities, the Person designated as
Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one
such Person, "Depositary" as used with respect to the Securities
of any such series shall mean the Depositary with respect to the
Securities of that series.
"Designated Currency" has the meaning specified in
Section 312.
"Dollar" or "$" means the coin or currency of the
United States of America as at the time of payment is legal
tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and
revised from time to time by the Council of the European
Communities.
"Euro-clear" means Morgan Guaranty Trust Company of New
York, Brussels office, or its successor as operator of the Euro-
clear System.
"European Communities" means the European Economic
Community, the European Coal and Steel Community and the European
Atomic Energy Community.
"Event of Default" has the meaning specified in Section
501.
"Exchange Rate" means the exchange rate set forth in
the Officers' Certificate or supplemental indenture establishing
a series of Securities pursuant to Section 301.
"Exempted Indebtedness" means, as of any particular
time, the sum of (i) the aggregate principal amount of all then
outstanding indebtedness for money borrowed of the Company and
Subsidiaries issued, assumed or guaranteed directly or indirectly
after the date of this Indenture and secured by any mortgage,
security interest, pledge, lien or other encumbrance other than
those permitted by paragraph (a) of Section 1006 and (ii) all
Attributable Debt in respect of Sale and Lease-Back Transactions
(as defined in Section 1007) incurred after the date of this
Indenture and at such time outstanding other than that permitted
pursuant to paragraph (a) of Section 1007.
"Experts," except as otherwise herein specifically
provided, the engineer, appraiser, accountant, counsel or other
person giving any opinion, certificate, audit or report provided
for herein shall be selected by the Board of Directors and shall
not be disqualified by reason of his regular employment or
retention by the Company, but in all cases such selection of the
Board of Directors must be acceptable to the Trustee. In any
case, more than one person of the designated class may join in
any such opinion, certificate, audit or report, each certifying
to a party of the required facts, opinions or conclusions. Each
certificate or opinion with respect to compliance with a
condition or covenant provided for herein shall conform to the
requirements of Section 102.
"Foreign currency" means a currency issued by the
government of any country other than the United States of
America.
"Global Security" means a Registered or Bearer Security
evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee in accordance with
Section 303, and bearing the legend prescribed in Section 303.
"Holder," with respect to a Registered Security, means
a Person in whose name such Registered Security is registered in
the Security Register and, with respect to a Bearer Security or a
coupon, means the bearer thereof.
"Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or
amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this instrument and any such
supplemental indenture, respectively. The term "Indenture" shall
also include the terms of 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 instalment 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
instalment 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.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, a Vice Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, the
Controller or an Assistant Controller, of the Company, and
delivered to the Trustee. One of the officers signing an
Officer's Certificate given pursuant to Section 1008 shall be the
principal executive, financial or accounting officer of the
Company.
"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.
"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 cancelled 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;
(iii) Securities for whose payment or redemption
money or U.S. Government Obligations as contemplated by
Section 1304 in the necessary amount have been theretofore
deposited with the Trustee (or another trustee satisfying
the requirements of Section 609) in trust for the Holders of
such Securities in accordance with Section 1305; and
(iv) 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, (i) the principal amount of an
original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that
would be due and payable as of the date of such determination
upon acceleration of the Maturity thereof pursuant to Section
502, (ii) the principal amount of a Security denominated in one
or more foreign currencies or currency units shall be the U.S.
dollar equivalent, determined in the manner provided as
contemplated by Section 301 on the date of original issuance of
such Security, of the principal amount (or, in the case of an
Original Issue Discount Security, the U.S. dollar equivalent on
the date of original issuance of such Security of the amount
determined as provided in (i) above) of such Security, and (iii)
Securities owned by the Company or any other obligor upon the
Securities or any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or with 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 any 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 such
Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or with
such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of or any premium or interest on any
Securities on behalf of the Company.
"Person" means any individual, corporation,
partnership, joint venture, trust, association, joint-stock
company, unincorporated organization or government or any agency
or political subdivision thereof.
"Place of Payment," when used with respect to the
Securities of any series payable in Dollars, means the Corporate
Trust Office of the Trustee, when used with respect to the
Securities of any series payable in a Foreign Currency, means the
place or places where such Foreign Currency is the legal tender,
and, when used with respect to the Securities of any series,
means such other place or places, if any, where the principal of
(and premium, if any) and any interest on the Securities of that
series are payable as specified as contemplated by Section 301,
in all cases subject to the provisions of Section 1002.
"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 (i) any paperboard, paper or
pulp mill or any paper converting plant or foundry or any other
manufacturing plant or facility located within the United States
of America or Canada of the Company or any Subsidiary except any
such plant or facility which the Board of Directors by resolution
declares is not of material importance to the total business
conducted by the Company and its Subsidiaries as an entirety and
(ii) any timber or timberlands of the Company or any Subsidiary.
"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.
"Registered Security" means any Security in the form of
registered securities established pursuant to Section 201 that is
registered in the Security Register.
"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.
"Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
Where appropriate in the context of this Indenture, the term
"Securities" includes any coupon appertaining to any Bearer
securities.
"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 instalment 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 instalment
of principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority
of the outstanding securities of which having ordinary voting
power to elect a majority of the board of directors of such
corporation (whether or not any other class of securities has or
might have voting power by reason of the happening of a
contingency) is at the time owned or controlled directly or
indirectly by the Company, or by one or more Subsidiaries, or by
the Company and one or more Subsidiaries.
"Trustee" means the Person named as the "Trustee" in
the first paragraph of this instrument until a successor Trustee
shall have become such 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; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America
(including the States thereof and the District of Columbia), and
its possessions, which include Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands.
"United States Alien" means any Person who, for United
States Federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of
a foreign estate or trust, or a foreign partnership one or more
of the members of which is, for United States Federal income tax
purposes, a foreign corporation, a non-resident alien individual
or a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified
in Section 1304.
"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".
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 precedent, 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 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 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
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; Record Dates.
(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. If Securities of a series
are issuable in whole or part as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by
Holders may, alternatively, be embodied in and evidenced by the
record of Holders of Securities voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting
of Holders of Securities duly called and held in accordance with
the provisions of Article Fourteen, or a combination of such
instruments and any such record. 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. The record of
any meeting of Holders of Securities shall be proved in the
manner provided in Section 1406.
(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 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 Registered Securities shall be
proved by the Security Register.
(d) The principal amount and serial numbers of Bearer
Securities held by any Person, and the date of holding the same,
may be proved by the production of such Bearer Securities or by a
certificate executed, as depositary, by any trust company, bank,
banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer
Securities in the amount and with the serial numbers therein
described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such
ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect
of the same Bearer Securities is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer outstanding.
(e) The fact and date of execution of any such
instrument or writing, the authority of the Person executing the
same and the principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or
writing and the date of holding the same may also be proved in
any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to
any of the matters referred to in this Section.
(f) If the Company shall solicit from the Holders of
Securities of any series any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, by Board Resolution, fix in advance a record date
for the determination of Holders of Registered Securities
entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have
no obligation to do so. Any such record date shall be fixed at
the Company's discretion. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent and
waiver or other Act may be sought or given before or after the
record date, but only the Holders of Registered Securities of
record at the close of business on such record date shall be
deemed to be Holders of Registered Securities for the purpose of
determining whether Holders of the requisite proportion of
Securities of such series Outstanding have authorized or agreed
or consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
Registered Securities of such series outstanding shall be
computed as of such record date.
(g) For purposes of determining the principal amount
of Outstanding Securities of any series the Holders of which are
required, requested or permitted to give any request, demand,
authorization, direction, notice, consent, waiver or take any
other Act under this Indenture and for purposes of determining
whether a quorum is present at a meeting of Holders of
Securities, (i) each Original Issue Discount Security shall be
deemed to have the principal amount determined by the Trustee
that would be due and payable upon acceleration of the Maturity
thereof pursuant to Section 502 and the terms of such Original
Issue Discount Security as of the date such Act is delivered to
the Trustee and, where it is hereby expressly required, the
Company and (ii) each Security denominated in a Foreign Currency
or composite currency shall be deemed to have the principal
amount determined by the exchange rate agent specified pursuant
to Section 301 by converting the principal amount of such
Security in the currency in which such Security is denominated
into Dollars at the Exchange Rate as of the date such Act is
delivered to the Trustee and, where it is hereby expressly
required, to the Company (or, if there is no such rate on such
date, such rate as determined by such exchange rate agent).
(h) 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 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.
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 the Trustee at its
Corporate Trust Office, Attention: Corporate Trust
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 or airmail postage prepaid if sent
from outside the United States, to the Company addressed to
it 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.
Any such Act or other document shall be in the English
language.
Section 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where
this Indenture provides for notice to Holders of any event, (1)
such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid,
to each Holder of a Registered Security affected by such event,
at his 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; and (2) such notice
shall be sufficiently given to Holders of Bearer Securities if
published in an Authorized Newspaper in The City of New York and,
if the Securities of such series are then listed on the London
Stock Exchange and such stock exchange shall so require, in
London and, if the Securities of such series are then listed on
the Luxembourg Stock Exchange and such stock exchange shall so
require, in Luxembourg and, if the Securities of such series are
then listed on any other stock exchange outside the United States
and such stock exchange shall so require, in any other required
city outside the United States or, if not practicable, in Europe
on a Business Day at least twice, the first such publication to
be not earlier than the earliest date and not later than the
latest 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 a 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, including publication, if
necessary, shall constitute a sufficient notification for every
purpose hereunder.
In case by reason of the suspension of publication of
any Authorized Newspaper or Authorized Newspapers or by reason of
any other cause it shall be impracticable to publish any notice
to Holders of Bearer Securities as provided above, then such
notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee, including publication in any
newspapers, shall constitute sufficient notice to such Holders
for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the
sufficiency of any notice so mailed to Holders of Registered
Securities as provided above.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act required or permitted
under this Indenture shall be in the English language, except
that any published notice may be in an official language of the
country of publication.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with a provision of the Trust Indenture Act that is required
under such Act to be a part of and govern this Indenture, the
latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so
modified or to be excluded, as the case may be.
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 and inure to the
benefit of their permitted 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 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.
ARTICLE II
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, and
may have such letters, numbers or other marks of identification
and 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.
[Insert any legend required by the Internal Revenue
Code and the regulations thereunder.]
THE MEAD CORPORATION
No. ________ $__________
THE MEAD CORPORATION, a corporation duly organized and
existing under the laws of the State of Ohio (herein called the
"Company," which term includes any successor Person 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 Interest
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 [if
applicable, insert -- , and (to the extent that the payment of
such interest shall be legally enforceable) at the rate of __%
per annum on any overdue principal and premium and on any overdue
instalment of interest]. 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 the 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 office or agency of the Company maintained
for that purpose in _____________ 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 mailed 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 by
manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
THE MEAD 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 November __, 1991 (herein called the "Indenture"),
between the Company and ____________, 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
aggregate 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 ________, 19__], 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 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 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 Dates 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, or 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 ("optional sinking
fund")] $__________ 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 inverse order
in which they become due].]
[If the Security is subject to redemption, insert -- In
the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the
unredeemed portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.]
[The Indenture contains provisions for defeasance at
any time of (a) the entire indebtedness of the Securities of this
series and (b) certain restrictive covenants and other
provisions, in each case upon compliance by the Company with
certain conditions set forth therein, which provisions apply to
the Securities of this series.]
[If the Security is not an Original Issue Discount
Security, insert -- 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, insert -- If an Event of Default with respect to
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 66 2/3% in principal amount of the
Securities at the time outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive 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 therefor 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 any premium 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
registerable 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
and of like tenor, 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 subject to certain limitations therein set forth, Securities
of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor 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.
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.
CITIBANK, N.A.,
As Trustee
By _______________________
Authorized Signatory
ARTICLE III
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.
There shall be established in or pursuant to a Board Resolution
and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in
one or more indentures supplemental hereto, prior to the issuance
of Securities of any series,
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from
Securities of any other series);
(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
and except for any Securities which, pursuant to Section
303, are deemed never to have been authenticated and
delivered hereunder);
(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 any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment
Date;
(5) the place or places 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, in whole or in
part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any sinking
fund or analogous provisions 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;
(8) the denominations in which Registered Securities
of the series, if any, shall be issuable, if other than
denominations of $1,000 and any integral multiple thereof,
and the denominations in which Bearer Securities of the
series, if any, shall be issuable if other than the
denomination of $5,000;
(9) 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;
(10) the application, if any, of either or both of
Section 1302 and Section 1303 to the Securities of the
series;
(11) whether Bearer Securities of the series are to be
issuable and, if so, whether Registered Securities of the
series are also to be issuable;
(12) if Bearer Securities of the series are to be
issuable, (x) whether interest in respect of any portion of
a temporary Security in global form (representing all of the
Outstanding Bearer Securities of the series) payable in
respect of any Interest Payment Date prior to the exchange
of such temporary security for definitive Securities of the
series shall be paid to any clearing organization with
respect to the portion of such temporary Security held for
its account and, in such event, the terms and conditions
(including any certification requirements) upon which any
such interest payment received by a clearing organization
will be credited to the Persons entitled to interest payable
on such Interest Payment Date, and (y) the terms upon which
interests in such temporary Security in global form may be
exchanged for interests in a permanent Global Security or
for definitive Securities of the series and the terms upon
which interests in a permanent Global Security, if any, may
be exchanged for definitive Securities of the series;
(13) whether the Securities of the series shall be
issued in whole or in part in the form of one or more Global
Securities and, in such case, the Depositary for such Global
Security or Securities;
(14) if other than Dollars, the currency of
denomination of the Securities of any series, which may be
in Dollars, any Foreign currency or any composite currency"
including but not limited to the ECU, and, if such currency
of denomination is a composite currency other than the ECU,
the agency or organization, if any, responsible for
overseeing such composite currency;
(15) if other than Dollars, the currency or currencies
in which payment of the principal of (and premium, if any)
and interest on the Securities of the series will be made,
and the currency or currencies, if any, in which payment of
the principal of (and premium, if any) or the interest on
Registered Securities of the series, at the election of each
of the Holders thereof, may also be payable, and the periods
within which and the terms and conditions upon which such
election is to be made, the manner in which the exchange
rate with respect to such payment shall be determined and
the agent appointed by the Company in connection with the
determination of the exchange rate, and whether Section 312
will be applicable to Securities of the Series, and the
manner of determining the equivalent thereof in Dollars for
purposes of the definition of "Outstanding" in Section 101;
(16) if the amount of payments of principal of (and
premium, if any) or interest on the Securities of the series
may be determined with reference to an index, the manner in
which such amounts shall be determined;
(17) whether and under what conditions additional
amounts shall be payable to Holders of Securities pursuant
to or in a manner different from Section 1010;
(18) any additional or different Events of Default or
restrictive covenants provided for with respect to the
Securities of the series; and
(19) any other terms of the series or covenants for the
benefit thereof (which terms or covenants shall not be
inconsistent with the provisions of this Indenture, except
as permitted by Section 901(5)).
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 the Board Resolution referred to
above and (subject to Section 303) set forth, or determined in
the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
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.
Securities of any particular series may be issued at
various times, with different dates on which the principal or any
installment of principal is payable, with different rates of
interest, if any, or different methods by which rates of interest
may be determined, with different dates on which such interest
may be payable, with different Redemption Dates and may be
denominated in different currencies or payable in different
currencies.
Section 302. Denominations.
Unless otherwise provided as contemplated by Section
301 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, except that Bearer Securities of
each series, if any, shall be issuable in the denomination of
$5,000.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the
Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon 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. Coupons
shall bear the facsimile signature of the Treasurer or any
Assistant Treasurer of the Company.
Securities bearing the manual or facsimile signatures
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 shall authenticate and
deliver such Securities; provided, however, that in connection
with its original issuance, no Bearer Security (including any
Security in global form that is either a Bearer Security or
exchangeable for Bearer Securities) or Security delivered in
exchange for an interest in the temporary Global Security shall
be mailed or otherwise delivered to any location in the United
States; and provided further that a Bearer Security (other than a
temporary Global Security) and any Security delivered in exchange
for an interest in the temporary Global Security may be
delivered, in connection with its original issuance, only if the
Person entitled to receive such Security shall have furnished a
certificate in the form set forth in Exhibit A to this Indenture,
dated no earlier than 15 days prior to (i) any Interest Payment
Date that occurs prior to the Exchange Date (as defined in
Section 304) with respect to a temporary Global Security for such
Security or (ii) the earlier of the date on which such Security
is delivered or the date on which any temporary Global Security
first becomes exchangeable for such Securities in accordance with
the terms of such temporary Security or this Indenture. If any
Security is represented by a permanent Global Security then, for
the purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary Global
Security shall be deemed to be delivery in connection with its
original issuance of such beneficial owner's interest in such
permanent Global Security. To the extent authorized in or
pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures
supplemental hereto, such Company Order may be given by any one
officer of the Company, may be electronically transmitted, and
may provide instructions as to registration of holders, principal
amounts, rates of interest, maturity dates and other matters
contemplated by such Board Resolution and Officers' Certificate
or supplemental indenture to be so instructed in respect thereof.
Before authorizing and delivering the first Securities of any
series (and upon reasonable request of the Trustee thereafter),
the Company shall deliver to the Trustee (i) the certificates
called for under Sections 201 and 301 hereof and (ii) an Opinion
of Counsel described in the next sentence. 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,
(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 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,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
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.
If the Company shall establish pursuant to Section 301
that the Securities of a series are to be issued in whole or in
part in the form of one or more Global Securities, then the
Company shall execute and the Trustee shall, in accordance with
this Section and the Company Order with respect to such series,
authenticate and deliver one or more Global Securities in
temporary or permanent form that (i) shall represent and shall be
denominated in an amount equal to the aggregate principal amount
of Outstanding Securities of such series to be represented by one
or more Global Securities; (ii) shall be registered, if in
registered form, in the name of the Depositary for such Global
Security or Securities or the nominee of such Depositary; (iii)
shall be delivered by the Trustee to such Depositary or pursuant
to such Depositary's instructions; and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive form
in accordance with the provisions of the Indenture and the terms
of the Securities, this Security may not be transferred except as
a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 301 for
a Global Security in registered form must, at the time of its
designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of
1934 and any other applicable statute or regulation.
Notwithstanding the provisions of Section 301 and of
the preceding paragraph, if all Securities of a series are not to
be originally issued at one time, it shall not be necessary to
deliver the Officers' Certificate otherwise required pursuant to
Section 301 or the Company Order and Opinion of Counsel otherwise
required pursuant to such preceding paragraph at or prior to the
time of authentication of each Security of such series if such
documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be
issued.
Each Registered Security shall be dated the date of its
authentication. Each Bearer Security shall be dated as of the
date specified as contemplated by Section 301.
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, and such certificate upon any
Security shall be conclusive evidence, and the only evidence,
that such Security has been duly authenticated and delivered
hereunder. Except as permitted by Section 306 or 307, the
Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have
been detached and cancelled. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the
Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be 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, in registered form or, if authorized, in bearer form
with one or more coupons or without coupons, 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.
In the case of any series issuable as Bearer securities, such
temporary Securities may be in global form and shall be delivered
only in compliance with the applicable conditions set forth in
Section 303.
Except in the case of temporary Securities in global
form (which shall be exchanged in accordance with the provisions
of the following paragraphs), if temporary Securities of any
series are issued, the Company will cause definitive Securities
of that series to be prepared without unreasonable delay. Except
as otherwise specified or contemplated in Section 301 with
respect to a series of Securities issuable as Bearer Securities,
after the preparation of definitive Securities of such series,
the temporary Securities of such series 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 maintained pursuant to Section 1002 in a Place of
Payment for such series for the purpose of exchanges of
Securities of such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons
appertaining thereto) the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like
aggregate principal amount of definitive Securities of the same
series and of like tenor of authorized denominations; provided,
however, that no definitive Bearer Security shall be issued in
exchanged for a temporary Registered Security.
If temporary Securities of any series are issued in
global form, any such temporary Global Security shall, unless
otherwise provided therein, be delivered to the London office of
a depositary or common depositary (the "Common Depositary"), for
the benefit of Euro@clear and CEDEL for credit to the respective
accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms
of, any such temporary Global Security of a series (the "Exchange
Date"), the Company shall deliver to the Trustee definitive
Securities of that series in aggregate principal amount equal to
the principal amount of such temporary Global Security, executed
by the Company. On or after the Exchange Date such temporary
Global Security shall be surrendered by the Common Depositary to
the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive
Securities of that series, without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such
temporary Global Security a like aggregate principal amount of
definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such temporary
Global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary Global Security, or unless
interest is payable on the temporary Global Security on an
Interest Payment Date occurring prior to the Exchange Date for
Securities of such series and the certifications described in the
second succeeding paragraph hereafter is provided, upon such
presentation by the Common Depositary, such temporary Global
Security is accompanied by a certificate dated the Exchange Date
or a subsequent date and signed by Euro-clear as to the portion
of such temporary Global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such
temporary Global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B to this
Indenture. The definitive Securities to be delivered in exchange
for any such temporary Global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is
so specified, as requested by the beneficial owner thereof,
provided, however that definitive Securities shall be delivered
in exchange for a portion of a temporary Global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary Global
Security, the interest of a beneficial owner of Securities of a
series in a temporary Global Security shall be exchanged for
definitive Securities of the same series and of like tenor
following the Exchange Date upon the receipt by Euro-clear or
CEDEL, as the case may be, of a certificate in the form set forth
in Exhibit A to this Indenture, dated no earlier than 15 days
prior to (i) any Interest Payment Date that occurs prior to the
Exchange Date or (ii) the Exchange Date, copies of which
certificate shall be available from the offices of Euro-clear and
CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise
specified in such temporary Global Security, any such exchange
shall be made free of charge to the beneficial owners of such
temporary Global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does
not take delivery of such definitive securities in person at the
offices of Euro-clear or CEDEL Definitive Securities to be
delivered in exchange for any portion of a temporary Global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that no interest shall be payable on
a temporary Global Security on any Interest Payment Date
occurring after the Exchange Date for Securities of such series.
Unless otherwise specified as contemplated by Section 301,
interest payable on a temporary Global Security on any Interest
Payment Date prior to the Exchange Date for Securities of such
series shall be payable to Euro-clear and CEDEL on such Interest
Payment Date only upon delivery by Euro-clear and CEDEL to the
Trustee of a certificate or certificates in the form set forth in
Exhibit B to this Indenture, dated no earlier than 15 days prior
to the Interest Payment Date, for credit without further interest
on or after such Interest Payment Date to the respective accounts
of the Persons for which Euro-clear or CEDEL, as the case may be,
holds such temporary Global Security on such Interest Payment
Date and who have each delivered to Euro-clear and CEDEL, as the
case may be, a certificate in the form set forth in Exhibit A to
this Indenture. Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph
shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304 and of the tenth paragraph of
Section 305. The delivery of such certification by Persons for
whom Euro-clear or CEDEL, as the case may be, holds such
temporary Global Security shall constitute irrevocable
instructions by such Person to Euro-clear or CEDEL to exchange
such Person's interest in the temporary Global Security for
definitive Securities of the same series and of like tenor on the
Exchange Date. Any interest so received by Euro-clear and CEDEL
and not paid as herein provided shall be returned to the Trustee
immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in
accordance with Section 1003.
Section 305. Registration, Registration of Transfer and
Exchange.
The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained
in such office and in any other office or agency of the Company
in a Place of Payment being herein sometimes collectively
referred to as the "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 appointed "Security Registrar"
for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any
Registered Security of any series at the office or agency of the
Company maintained for such purpose, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new
Registered Securities of the same series of any authorized
denomination or denominations, of like tenor and aggregate
principal amount.
Notwithstanding any other provision of this Section
unless and until it is exchanged in whole or in part for
Securities in definitive form, a Global Security representing all
or a portion of the Securities of a series may not be transferred
except as a whole by a Depositary for such series to a nominee
of-such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such
Depositary or any such nominee to a successor Depositary for such
series or a nominee of such successor Depositary.
At the option of the Holder, Registered Securities of
any series (except a Global Security) may be exchanged for other
Registered Securities of the same series of any authorized
denomination or denominations, of a like aggregate principal
amount, upon surrender of the Registered Securities to be
exchanged at such office or agency. Bearer Securities may not be
delivered by the Trustee in exchange for Registered Securities.
At the option of the Holder, except as otherwise
specified as contemplated by Section 301 with respect to a Global
Security issued in bearer form, Bearer Securities of any series
may be exchanged for Registered Securities (if the Securities of
such series are issuable as Registered Securities) or Bearer
Securities (if Bearer securities of such series are issuable in
more than one denomination) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount,
upon surrender of the Bearer Securities to be exchanged at any
such office or agency, with all unmatured coupons and all matured
coupons in default appertaining thereto; provided, however,
delivery of a Bearer Security shall occur only outside the United
States. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons in default, such exchange
may be effected if the Bearer Securities are accompanied by
payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been
made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable
only upon presentation and surrender of those coupons at an
office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at such office or agency in exchange for a
Registered Security of the same series after the close of
business at such office or agency on (i) any Regular Record Date
and before the opening of business at such office or agency on
the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency
on the related date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date of payment, as the
case may be. 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.
If at any time the Depositary for the Securities of a
series notifies the Company that it is unwilling or unable to
continue as Depositary for the Securities of such series or if at
any time the Depositary for the Securities of such series shall
no longer be eligible under Section 303, the Company shall
appoint a successor Depositary with respect to the Securities of
such series. If a successor Depositary for the Securities of
such series is not appointed by the Company within 90 days after
the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 301(13)
shall no longer be effective with respect to the Securities of
such series and the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of
definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive form in an
aggregate principal amount equal to the principal amount of the
Global Security of Securities representing such series in
exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of
one or more Global Security or Securities shall no longer be
represented by such Global Security or Securities. In such event
the Company will execute, and the Trustee, upon receipt of a
Company Order for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver,
Securities of such series in definitive form and in an aggregate
principal amount equal to the principal amount of the Global
Security or Securities representing such series in exchange for
such Global Security or Securities.
If (a) there shall have occurred and be continuing an
Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with
respect to a series of Securities issued in the form of one or
more Global Securities, or (b) if specified by the Company
pursuant to Section 301 with respect to a series of Securities,
the Depositary for such series of Securities may surrender a
Global Security for such series of Securities in exchange in
whole or in part for Securities of such series in definitive
form, then the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge:
(i) to each Person specified by such Depositary a new
Security or Securities of the same series, of any authorized
denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to
Holders thereof.
In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee will
authenticate and deliver securities (a) in definitive registered
form in authorized denominations, if the Securities of such
series are issuable as Registered Securities, (b) in definitive
bearer form in authorized denominations, with coupons attached,
if the Securities of such series are issuable as Bearer
Securities or (c) as either Registered or Bearer Securities, if
the Securities of such series are issuable in either form;
provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Global Security unless the
Company or its agent shall have received from the person entitled
to receive the definitive Bearer Security a certificate
substantially in the form set forth in Exhibit A hereto in
accordance with Section 303; and provided further that delivery
of a Bearer Security shall occur only outside the United States;
and provided further that no definitive Bearer Security will be
issued if the Company has reason to know that such certificate is
false.
Upon the exchange of a Global Security for Securities
in definitive form, such Global Security shall be cancelled by
the Trustee. Registered Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in
such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver Bearer Securities issued in
exchange for a Global Security pursuant to this Section to the
persons, and in such authorized denominations, as the Depositary
for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the
Trustee; provided, however, that no definitive Bearer Security
shall be delivered in exchange for a temporary Global Security
except in accordance with the delivery of a certificate required
by Section 304; and provided further that delivery of a Bearer
Security shall occur only outside the United States; and provided
further that no definitive Bearer Security will be issued if the
Company has reason to know that such certificate is false.
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 his attorney duly authorized in writing.
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 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, (i) to issue,
register the transfer of or exchange Securities of any series or
(ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, or (iii) to exchange
any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of
that series (if the Securities of such series are issuable as
Registered Securities), provided that such Registered Security
shall be simultaneously surrendered for redemption with written
instruction for payment consistent with the provisions of this
Indenture.
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 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; provided, however, that payment of principal
of (and premium, if any) and any interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable
only at an office or agency located outside the United States;
and provided, further, that, with respect to any such coupons,
interest represented thereby (but not any additional amounts
payable as provided in Section 1010), shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
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.
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 Registered 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. In case a Bearer Security of any series is surrendered
in exchange for a Registered Security of such series after the
close of business (at an office or agency in a Place of Payment
for such series) on any Regular Record Date and before the
opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment
Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this
Indenture.
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 Registered 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 Registered
Securities of such series at his 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 Registered
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). In case a Bearer Security
of any series is surrendered at the office or
agency in a Place of Payment for such series in
exchange for a Registered Security of such series
after the close of business at such office or
agency on any Special Record Date and before the
opening of business at such office or agency on
the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be
surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest
will not be payable on such proposed date of
payment in respect of the Registered Security
issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon
when due in accordance with the provisions of this
Indenture.
(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 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 Registered 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.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by delivery. The Company, the
Trustee and any agent of the Company or the Trustee may treat the
bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Bearer Security or coupon for the purpose
of receiving payment thereof or on account thereof and for all
other purposes whatsoever, whether or not such Bearer Security or
coupon 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.
Notwithstanding the foregoing, with respect to any
Global Security, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization
furnished by a Depositary or impair, as between a Depositary and
holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the
rights of the Depositary as Holder of such Global Security. None
of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 309. Cancellation.
All Securities surrendered 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 shall be
promptly cancelled 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 may deliver to the Trustee
(or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities
held by the Trustee shall be destroyed and a certificate of
destruction shall be provided to the Company.
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
year of twelve 30-day months.
Section 311. Certification by a Person Entitled to Delivery of
Bearer Security.
Whenever any provision of this Indenture or a Security
contemplates that certification be given by a Person entitled to
delivery of a Bearer Security, such certification shall be
provided substantially in the form of Exhibit A hereto, with only
such changes as shall be approved by the Company.
Section 312. Judgments.
The Company may provide, pursuant to Section 301, for
the Securities of any series that, to the fullest extent provided
under applicable law, (a) the obligation, if any, of the Company
to pay the principal of (and premium, if any) and interest on the
Securities of such series and any appurtenant coupons in a
Foreign Currency, composite currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 301 is of the
essence and agree that judgments in respect of such Securities
shall be given in the Designated Currency; (b) the obligation of
the Company to make payments in the Designated Currency of the
principal of (and premium, if any) and interest on such
securities and any appurtenant coupons shall, notwithstanding any
payment in any other currency (whether pursuant to a judgment or
otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may,
in accordance with normal banking procedures, purchase with the
sum paid in such other currency (after any premium and cost of
exchange) in the country of issue of the Designated Currency in
the case of Foreign Currency or Dollars or in the international
banking community in the case of a composite currency on the
Business Day immediately following the day on which such Holder
receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of
the amount originally due, the Company shall pay such additional
amounts as may be necessary to compensate for such shortfall; and
(d) any obligation of the Company not discharged by such payment
shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and
effect.
ARTICLE IV
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 any right to receive additional
amounts as provided in Section 1010), and the Trustee, 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,
(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, (iii) coupons
appertaining to Bearer Securities surrendered in
exchange for Registered Securities and maturing
after such exchange, surrender of which is not
required or has been waived as provided in Section
305, and (iv) coupons appertaining to Bearer
Securities called for redemption and maturing
after the relevant Redemption Date, surrender of
which has been waived as provided in Section 1106)
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) are to be called for
redemption within one year under
arrangements satisfactory to the 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 in 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.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under
Section 607, the obligations of the Trustee 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 Section 402 and the
last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section
401 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the
payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has
been deposited with the Trustee; but such money need not be
segregated from other funds except to the extent required by law.
ARTICLE V
Remedies
Section 501. Events of Default.
"Event of Default," wherever 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):
(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 default by the Company in the payment
of any indebtedness for borrowed money, the
outstanding principal amount of which at the time
of such default is equal to or in excess of
$25,000,000 (including a default with respect to
Securities of any series other than that series),
whether such indebtedness now exists or shall
hereafter be created, whether at maturity, by call
for redemption, by acceleration, declaration or
otherwise, and any period of grace with respect
thereto shall have expired, unless the time for
payment shall have been effectively extended;
provided, however, that, subject to the provisions
of Sections 601 and 602, the Trustee shall not be
charged with knowledge of any such default unless
written notice thereof shall have been given to
the Trustee at its Corporate Trust Office by the
Company, by the holder or an agent of a holder of
any such indebtedness, or by the trustee then
acting under any indenture or other instrument
under which such default shall have occurred, or
by the holders of not less than 25% in principal
amount of the Outstanding Securities of that
series; provided, however, that if, prior to a
declaration of acceleration of the maturity of the
Securities of that series or the entry of judgment
in favor of the Trustee in a suit pursuant to
Section 503, such default shall be remedied or
cured by the Company or waived by the holders of
such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or
waived without further action upon the part of
either the Trustee or any of the Securityholders;
or
(6) the entry by a court having jurisdiction
in the premises of (A) a decree or order for
relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking
reorganization, arrangement, adjustment or
composition of or in respect of the Company under
any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of
the Company or of any substantial part of its
property, or ordering the winding up or
liquidation of its affairs, and the continuance of
any such decree or order for relief or any such
other decree or order unstayed and in effect for a
period of 60 consecutive days; or
(7) the commencement by the Company of a
voluntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any
other case or proceeding to be adjudicated a
bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect
of the Company in an involuntary case or
proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any
bankruptcy or insolvency case or proceeding
against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the
consent by it to the filing of such petition or to
the appointment of or taking possession by a
custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of
the Company or of any substantial part of its
property, or the making by it of an assignment for
the benefit of creditors, or the admission by it
in writing of its inability to pay its debts
generally as they become due, or the taking of
corporate action by the Company in furtherance of
any such action; or
(8) any other Event of Default provided with
respect to Securities of that series.
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% in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities,
such portion of the principal amount of such Securities as may be
specified in the terms thereof) 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 any 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
waived 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
(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 any premium
and interest and, to the extent that payment of such interest
shall be legally enforceable, interest on any overdue principal
and premium 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 any judicial proceeding relative to the
Company (or any other obligor upon the Securities), its property
or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all
actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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.
No provision of this Indenture 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 any premium 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 any premium
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 any
premium and interest, respectively. Except to the
extent otherwise provided in Section 312 if such
Section is specified as applicable to Securities
of a particular series, the Holders of each series
of Securities denominated in ECU, any other
composite currency or a Foreign Currency and any
matured coupons relating thereto shall be entitled
to receive a ratable portion of the amount
determined by the exchange rate agent specified
pursuant to Section 301 by converting the
principal amount Outstanding of such series of
Securities and matured but unpaid interest on such
series of Securities in the currency in which such
series of Securities is denominated into Dollars
at the Exchange Rate as of the date of declaration
of acceleration of the Maturity of the Securities
(or, if there is no such rate on such date, such
rate as determined by such exchange rate agent).
Upon receipt by the Trustee of any declaration of
acceleration, or rescission and annulment thereof, with
respect to Securities, of a series all or part of which is
represented by a Global Security, the Trustee shall
establish a record date for determining Holders of
Outstanding Securities of such series entitled to join in
such declaration of acceleration, or rescission and
annulment, as the case may be, which record date shall be at
the close of business on the day the Trustee receives such
declaration of acceleration, or rescission and annulment, as
the case may be. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be
entitled to join in such declaration of acceleration, or
rescission and annulment, as the case may be, whether or not
such Holders remain Holders after such record date;
provided, that unless such declaration of acceleration, or
rescission and annulment, as the case may be, shall have
become effective by virtue of the requisite percentage
having been obtained prior to the day which is 90 days after
such record date, such declaration of acceleration, or
rescission and annulment, as the case may be shall
automatically and without further action by any Holder be
canceled and of no further effect. Nothing in this
paragraph shall prevent a Holder, or a proxy of a Holder,
from giving, after expiration of such 90-day period, a new
declaration of acceleration, or rescission or annulment
thereof, as the case may be, that is identical to a
declaration of acceleration, or rescission or annulment
thereof, which has been cancelled pursuant to the proviso to
the preceding sentence, in which event a new record date
shall be established pursuant to the provisions of this
Section 506.
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 reasonable 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
indemnity 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 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
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) any
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
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. 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 or 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
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with
such direction.
Upon receipt by the Trustee of any such direction with
respect to Securities of a series all or part of which is
represented by a Global Security, the Trustee shall establish a
record date for determining Holders of Outstanding Securities of
such series entitled to join in such direction, which record date
shall be at the close of business on the day the Trustee receives
such direction. The Holders on such record date, or their duly
designated proxies, and only such Persons, shall be entitled to
join in such direction, whether or not such Holders remain
Holders after such record date; provided, that unless such
majority in principal amount shall have been obtained prior to
the day which is 90 days after such record date, such direction
shall automatically and without further action by any Holder be
cancelled and of no further effect. Nothing in this paragraph
shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new direction identical
to a direction which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be
established pursuant to the provisions of this Section 512.
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 hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of or any
premium 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.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled
to waive any past default hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to waive any
default hereunder, whether or not such Holders remain Holders
after such record date; provided, that unless such majority in
principal amount shall have been obtained prior to the date which
is 90 days after such record date, any such waiver previously
given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Section 514. Undertaking for Costs.
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, a court may
require any party litigant in such suit to file an undertaking to
pay the costs of such suit, and may assess costs against any such
party litigant, in the manner and to the extent provided in the
Trust Indenture Act; provided that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any
suit instituted by the Company.
Section 515. Waiver of Usury, 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 usury, 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 execution of any
power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been
enacted.
ARTICLE VI
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be
as provided by the Trust Indenture Act. Notwithstanding the
foregoing, 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. 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.
If a default occurs hereunder with respect to
Securities of any series, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however,
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. 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 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 and any
resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(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, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and
the written advice of such counsel or any Opinion
of Counsel 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.
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.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time
reasonable compensation 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 for, and to
hold it harmless against, any loss, liability or
expense incurred 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 or liability
in connection with the exercise or performance of
any of its powers or duties hereunder.
Section 608. Disqualification; Conflicting Interests.
The Trustee shall comply with the provisions of Section
310(b) of the Trust Indenture Act. The Indenture dated as of
October 15, 1989 between the Company and the Trustee shall be
deemed to be specifically described herein for the purposes of
clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which
shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and
surplus of at least $50,000,000 and its Corporate Trust Office in
any State of the United States. If such Person 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 Person 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.
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 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 any
court of competent jurisdiction 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.
(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, 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 to all Holders of
Securities of such series in the manner provided in Section 106.
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
relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be
deemed necessary or desirable 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 and 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 other such
Trustee; 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 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 all 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) and
(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.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of claims against the Company (or
any such other obligor).
Section 614. Appointment of Authenticating Agent.
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 original issue
and upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, 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 a combined capital and surplus of
not less than $50,000,000 and subject to supervision or
examination by Federal or State authority. If such
Authenticating Agent 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 Authenticating
Agent 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 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 terminate the agency of an
Authenticating 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 Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under
this Section, and the Trustee shall be entitled to be reimbursed
for such payments, subject to the provisions of Section 607.
If an appointment with respect to one or more series is
made pursuant to this Section, the Securities of such series 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.
CITIBANK, N.A.,
As Trustee
By ___________________________
As Authenticating Agent
By ___________________________
Authorized Signatory
ARTICLE VII
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 be furnished to
the Trustee
(a) semi-annually, not later than January 15 and July
15 in each year, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as
of the preceding January 1 or July 1, as the case may be, 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.
The Trustee shall preserve for at least two years the
names and addresses of Holders of Bearer Securities filed with
the Trustee pursuant to Section 703(b).
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) The rights of the Holders to communicate with
other Holders with respect to their rights under this Indenture
or under the securities, and the corresponding rights and
privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
(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 any disclosure of
information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after each October 15, beginning in
1998, the Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as
may be required pursuant to the Trust Indenture Act to the extent
and in the manner provided pursuant thereto.
(b) Reports pursuant to this Section shall be
transmitted by mail:
(1) to all Holders of Registered Securities, as the
names and addresses of such Holders appear in the
Security Register;
(2) to such Holders of Bearer Securities as have,
within the two years preceding such transmission,
filed their names and addresses with the Trustee
for that purpose; and
(3) to each Holder of a Security whose name and
address is preserved at the time by the Trustee,
as provided in Section 702(a).
(c) A copy of each such report shall, at the time of
such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the
Commission and with the Company. The Company will notify the
Trustee when any securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, 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 such Act and, as applicable, Section
703(b); provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13
or 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.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.
The Company shall not, and will not permit any
Subsidiary to, consolidate with or merge into any other
corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge
into the Company or any subsidiary or convey, transfer or lease
its properties and assets substantially as an entirety to the
Company or any Subsidiary, unless:
(1) in case the Company shall consolidate
with or merge into another corporation or convey,
transfer or lease its properties and assets
substantially as an entirety to any Person, 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 (including all
additional amounts, if any, payable pursuant to
Section 1010) 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 and treating any indebtedness which
becomes an obligation of the Company or a
Subsidiary as a result of such transaction as
having been incurred by the Company or such
Subsidiary at the time of 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;
(3) if, as a result of any such
consolidation or merger or such conveyance,
transfer or lease, any Principal Property of the
Company or of any Subsidiary, or any indebtedness
of or equity securities of any Subsidiary or
Affiliate (but not including any such indebtedness
and equity securities or any other property not
owned by the Company or a Subsidiary immediately
prior to any such consolidation, merger,
conveyance, transfer or lease) would become
subject to a mortgage, pledge, lien, security
interest or other encumbrance which would not be
permitted by this Indenture, the Company or such
successor corporation or Person, as the case may
be, shall take such steps as shall be necessary
effectively to secure the Securities equally and
ratably with (or prior to) all indebtedness
secured thereby; and
(4) 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, if a
supplemental indenture is required in connection
with such transaction, such supplemental indenture
comply with this Article and that all conditions
precedent herein provided for relating to such
transactions have been complied with.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger
of the Company into, any other Person 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 Person 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 Person had
been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
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:
(1) to evidence the succession of another
Person 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 such 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 provide that
Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions
on the payment of principal (or premium, if any)
on Registered Securities or of principal (or
premium, if any) or any interest on Bearer
Securities, to permit Registered Securities to be
exchanged for Bearer Securities, provided any such
action shall not adversely affect the interests of
the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to add to, change or eliminate any of
the provisions of this Indenture in respect of one
or more series of Securities, provided that any
such addition, change or elimination (i) shall
neither (A) apply to any Security of any series
created prior to the execution of such
supplemental indenture and entitled to the benefit
of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such
provision or (ii) shall become effective only when
there is no such Security Outstanding; or
(6) to secure the Securities pursuant to the
requirements of Section 1006 or otherwise; 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 provision 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 that such action pursuant to this clause
(9) 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
66-2/3% in principal amount of the Outstanding Securities of each
series affected by such supplemental indenture voting separately,
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 or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of
Securities of such series 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 instalment 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
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 change any obligation of the
Company to pay additional amounts pursuant to
Section 1010 (except as contemplated by Sections
301 or 801(l) or permitted by Section 901(l)), or
(2) reduce the percentage in principal
amount of the Outstanding Securities of any
series, 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 reduce the requirements of section
1404 of quorum or voting, or
(3) modify any of the provisions of this
Section, Section 513 or Section 1009, 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 1009, 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.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled
to consent to any indenture supplemental hereto. If a record
date is fixed, the Holders on such record date or their duly
designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such
Holders remain Holders after such record date; provided, that
unless such consent shall have become effective by virtue of the
requisite percentage having been obtained prior to the date which
is 90 days after such record date, any such consent previously
given shall automatically and without further action by any
Holder be cancelled and of no further effect.
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 stating that the execution of such
supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but 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.
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 X
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. Any interest due on Bearer
Securities on or before Maturity, other than additional amounts,
if any, payable as provided in Section 1010 in respect of
principal of (or premium, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby
as they severally mature.
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. If Securities of a series are issuable
as Bearer Securities, the Company will maintain, subject to any
laws or regulations applicable thereto, (a) an office or agency
in a Place of Payment for such series that is located outside the
United States where Securities of such series and the related
coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of such
series pursuant to Section 1010); provided, however, that if the
Securities of such series are listed on the London Stock Exchange
or the Luxembourg Stock Exchange or any other stock exchange
located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent in London or
Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of such
series are listed on such exchange, and (B) an office or agency
in a Place of Payment for such series that is located outside the
United States where any Registered Securities of such series may
be surrendered for registration of transfer, where securities of
that series may be surrendered for exchange and where notices and
demands to or upon the Company in respect of the Securities of
that series and the 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 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;
provided that Bearer Securities of that series and the related
coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1010) at the place specified for
the purpose pursuant to Section 301 or, if no such place is
specified, at the main office of the Trustee in London.
No payment of principal of or premium or interest on
Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in
the United States or by transfer to an account maintained with a
bank located in the United States; provided, however, that, if
the Securities are denominated and payable in Dollars, payment of
principal of and any premium and interest (including any
additional amounts payable in respect thereof pursuant to Section
1010) on any Bearer Security shall be made in Dollars at the
Corporate Trust Office of the Trustee in New York, New York if
(but only if) payment of the full amount of such principal,
premium, interest or additional amounts at all offices outside
the United States maintained for the purpose by the Company in
accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
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.
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 such amount, such sum to be held as provided by
the Trust Indenture Act, 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 (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii)
during the continuance of any default by the Company (or any
other obligor upon the Securities of that series) in the making
of any payment in respect of the Securities of that series, and
upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment
in respect of the Securities of that series.
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.
Any money deposited with the Trustee or any Paying
Agent, or received by the Trustee (or another trustee satisfying
the requirements of Section 609) in respect of U.S. Government
Obligations deposited with the Trustee (or such other trustee)
pursuant to Section 1304, 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 two 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 an
Authorized Newspaper of general circulation in the Borough of
Manhattan, The City of New York, and each Place of Payment,
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. Corporate Existence.
Subject to Article Eight, the Company will do or cause
to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if
the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in
any material respect to the Holders.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in
the conduct of its business or the business of any Subsidiary to
be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment and will cause to
be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is,
in the judgment of the Company, desirable in the conduct of its
business or the business of any subsidiary and not
disadvantageous in any material respect to the Holders.
Section 1006. Limitation on Liens.
(a) The Company will not, nor will it permit any
Subsidiary to, issue, assume or guarantee directly or indirectly
any indebtedness for money borrowed (hereinafter in this Article
Ten referred to as "Debt"), if such Debt is secured by a
mortgage, pledge, security interest, lien or other encumbrance
(any such mortgage, pledge, security interest, lien or other
encumbrance being hereinafter in this Article Ten referred to as
a "mortgage" or "mortgages") upon any Principal Property or upon
any indebtedness of or equity securities of any Subsidiary or any
Affiliate, now owned or hereafter acquired, without in any such
case effectively providing, concurrently with the issuance,
assumption or guarantee of such Debt, that the Securities then
Outstanding (together with, if the Company shall so determine,
any other indebtedness of or guaranteed by the Company or such
Subsidiary ranking equally with the Securities and then existing
or thereafter created) shall be secured equally and ratably with
(or prior to) such Debt; provided, however, that the foregoing
restriction shall not apply to
(1) mortgages on any property acquired, constructed or
improved by the Company or any Subsidiary after the date of
this Indenture which are created or incurred
contemporaneously with or within one hundred twenty days
after such acquisition, construction or improvement to
secure or provide for the payment of any part of the
purchase price of such property or the cost of such
construction or improvement (the date of such construction
or improvement being, for the purpose of this clause (1),
deemed to be the date of completion of such construction or
improvement); provided that any such mortgage shall not
apply to any other property of the Company or any Subsidiary
except, in the case of any construction or improvement,
theretofore unimproved real property on which the property
so constructed, or the improvement, is located;
(2) mortgages on any property acquired from a
corporation which is merged with or into the Company or a
Subsidiary or mortgages outstanding on property at the time
it is acquired by the Company or a Subsidiary or mortgages
outstanding on property of a corporation at the time it
becomes a Subsidiary;
(3) mortgages to secure Debt of a Subsidiary to the
Company or to another Subsidiary;
(4) mortgages or other restrictions relating to equity
securities of any Affiliate under any agreement or
arrangement between the Company or any Subsidiary and such
Affiliate (or the other stockholder or stockholders of such
Affiliate) providing for the operations, financing or
purchase of products of such Affiliate or under any
agreement among any such parties imposing restrictions on
the disposition of or granting options to purchase the
equity securities of such Affiliate;
(5) mortgages upon property or assets of the Company
or any Subsidiary in favor of any governmental agency or
authority or guarantees given for the purpose of financing,
through industrial revenue bonds or notes the interest on
which is exempt from federal income taxation under Section
103 of the Internal Revenue Code of 1986, as amended, the
construction, acquisition or purchase of industrial plants,
machinery, equipment or other property or facilities; and
(6) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole
or in part, of any mortgage referred to in the foregoing
clauses (1) to (5), inclusive; 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) Notwithstanding the provisions of paragraph (a)
of this Section 1006, the Company or any Subsidiary may, without
equally and ratably securing the Securities, create or assume
mortgages which would otherwise be subject to the foregoing
restrictions if, at the time of such creation or assumption, and
after giving effect thereto, Exempted Indebtedness does not
exceed 5% of Consolidated Shareholders' Equity.
Section 1007. Limitation on Sale and Lease-Back.
(a) The Company will not, nor will it permit any
Subsidiary to, enter into any arrangement with any person
providing for the leasing to the Company or Subsidiary of any
Principal Property (except for temporary leases for a term of not
more than three years), which property has been owned more than
one hundred twenty days by the Company or such Subsidiary and has
been or is to be sold or transferred by the Company or such
Subsidiary to such person (herein referred to as a "Sale and
Lease-Back Transaction"), unless either (1) the Company or such
Subsidiary would be entitled to incur debt secured by a mortgage
on the property to be leased without equally and ratably securing
the Securities pursuant to clause (a) or (b) of Section 1006 or
(2) the Company shall, and in any such case the Company covenants
that it will, apply an amount equal to the fair value (as
determined by the Board of Directors) of the property so leased
to the retirement, within one hundred twenty days of the
effective date of any such Sale and Lease-Back Transaction, of
Securities (in the manner, subject to the restrictions and at the
redemption prices then applicable to redemption of Securities at
the option of the Company) or other indebtedness of the Company
with a maturity in excess of one year from the date of such Sale
and Lease-Back Transaction and which ranks on a parity with the
Securities.
(b) Notwithstanding the provisions of paragraph
(a) of this Section 1007, the Company or any Subsidiary may
enter into Sale and Lease-Back Transactions which would otherwise
be prohibited by the foregoing restrictions if, at the time such
transactions are entered into, and after giving effect thereto,
Exempted Indebtedness does not exceed 5% of Consolidated
Shareholders' Equity.
Section 1008. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120
days after the end of each fiscal year of the Company ending
after the date of issuance of Securities of any series and as
long as Securities of any series remain Outstanding, an Officers'
Certificate (which shall be signed by the principal executive
officer, the principal financial officer or principal accounting
officer of the Company), containing the information required by
Section 314(a)(4) of the Trust Indenture Act and stating whether
or not to the best knowledge of the signers thereof the Company
is in default in the performance and observance of any of the
terms, provisions and conditions of Section 1004 to 1007,
inclusive, and if the Company shall be in default, specifying all
such defaults and the nature and status thereof of which they may
have knowledge.
Section 1009. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with term, provision or condition set forth in Sections
1004 to 1007, inclusive, with respect to the Securities of any
series if before the time for such compliance the Holders of at
least 66 2/3% in principal amount of the Outstanding Securities
of such series 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 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 1010. Payment of Additional Amounts.
If the Securities of a series provide for the payment
of additional amounts, the Company will pay to the Holder of any
Security of any series or any coupon appertaining thereto
additional amounts upon the terms and subject to the conditions
provided therein. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of (or premium, if
any) or interest on, or in respect of, any Security of any series
or any related coupon or the net proceeds received on the sale or
exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts
provided for in the terms of such Securities and this Section to
the extent that, in such context, additional amounts are, were or
would be payable in respect thereof pursuant to the provisions of
this Section and express mention of the payment of additional
amounts (if applicable) in any provisions hereof shall not be
construed as excluding additional amounts in those provisions
hereof where such express mention is not made.
If the Securities of a series provide for the payment
of additional amounts, at least 10 days prior to the first
Interest Payment Date with respect to that series of Securities
(or if the Securities of that series will not bear interest prior
to the Maturity, the first day on which a payment of principal
(and premium, if any) is made), and at least 10 days prior to
each date of payment of principal (and premium, if any) or
interest if there has been any change with respect to the matters
set forth in the below mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Securities of that series
shall be made to Holders of Securities of that series or the
related coupons who are United States Aliens without withholding
for or on account of any tax, assessment or other governmental
charge described in the Securities of that series. If any such
withholding shall be required, then such Officers' Certificate
shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or
coupons and the Company will pay to the Trustee or such Paying
Agent the additional amounts, if any, required by the terms of
such Securities and the first paragraph of this Section. The
Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with Actions taken or
omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 1010.
ARTICLE XI
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, of the principal amount of
Securities of such series to be redeemed and, if applicable, of
the tenor of the Securities 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 (unless all of the Securities of such series and of a
specified tenor 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 such
method as the Trustee shall deem fair and appropriate 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 of a denomination larger than the
minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a
specified tenor 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 and specified tenor not previously called for
redemption in accordance with the preceding sentence.
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 in the manner
provided in Section 106, mailed not less than 30 nor more than 60
days prior to the Redemption Date, to each Holder of Securities
to be redeemed.
All notices of redemption shall state:
(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 of any Securities, the
principal amounts) of the particular Securities to be
redeemed,
(4) 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,
(5) the place or places where such Securities are to
be surrendered for payment of the Redemption Price, and
(6) 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.
Section 1105. Deposit of Redemption Price.
Prior to 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, and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. 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
on Bearer Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable only upon presentation and
surrender of coupons for such interest (at an office or agency
located outside the United States except as otherwise provided in
Section 1002), and provided 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 Bearer Security surrendered for redemption shall
not be accompanied by all appurtenant coupons maturing after the
Redemption Date, such Bearer Security may be paid after deducting
from the Redemption Price an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may
require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Bearer Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented
by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside of the
United States except as otherwise provided in Section 1002.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal and any
premium 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 and of like tenor, 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, except
that if a Global Security is so surrendered, the Company shall
execute, and the Trustee shall authenticate and deliver to the
Depositary for such Global Security, without service charge, a
new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global
Security so surrendered.
Section 1108. Repayment at the Option of Holders.
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. The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of
Securities before their Stated Maturity, for purposes of Section
309, shall not operate as a payment, redemption or satisfaction
of the indebtedness represented by such Securities unless and
until the Company, at its option, shall deliver or surrender the
same to the Trustee with a directive that such Securities be
cancelled. Notwithstanding anything to the contrary contained in
this Section 1108, in connection with any repayment of
Securities, the Company may arrange for the purchase of any
Securities by an agreement with one or more investment bankers or
other purchasers to purchase such Securities by paying to the
Trustee for the benefit of the Holders of such Securities on or
before 10:00 A.M. on the repayment date in immediately available
funds an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of
the Company to pay the repayment price of such Securities to such
Holders shall be satisfied and discharged to the extent such
payment is so paid by such purchasers.
ARTICLE XII
Sinking Funds
Section 1201. Applicability of Article.
The provisions 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 (1) may deliver Outstanding Securities of a
series (other than any previously called for redemption),
together in the case of any Bearer Securities of such series with
all unmatured coupons appertaining thereto, and (2) may apply as
a credit Securities of a 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 in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; 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
will also deliver to the Trustee any Securities to be so
delivered. Not less than 31 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
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 XIII
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's Option
to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either
or both of (a) defeasance of the Securities of a series under
Section 1302 or (b) covenant defeasance of the Securities of a
series under section 1303, then the provisions of such Section or
Sections, as the case may be, together with the other provisions
of this Article Thirteen, shall be applicable to the Securities
of such series, and the Company may at its option by Board
Resolution, at any time, with respect to the Securities of such
series, elect to have either Section 1302 (if applicable) or
Section 1303 (if applicable) be applied to the Outstanding
Securities of such series upon compliance with the conditions set
forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be deemed to have
been discharged from its obligations with respect to the
Outstanding Securities of such series on the date the conditions
set forth below are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series and to
have satisfied all its other obligations under Securities and
this Indenture insofar as such Securities are concerned (and the
Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of
such series to receive, solely from the trust fund described in
Section 1304 and as more fully set forth in such Section,
payments in respect of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the
Company's obligations with respect to such Securities under
Sections 304, 305, 306, 607, 1002, 1003 and 1010, (C) the rights,
powers, trusts, duties, and immunities of the Trustee hereunder
and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this
Section 1302 notwithstanding the prior exercise of its option
under Section 1303 with respect to the Securities of such series.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of the above option
applicable to this Section, the Company shall be released from
its obligations under Sections 801, 1005, 1006, 1007, 1008,
501(4) (as to Sections 801, 1005, 1006, 1007 and 1008), 501(5),
501(6), 501(7) and 501(8) (if Section 501(8) is specified as
applicable to the Securities of such series) with respect to the
Outstanding Securities of such series on and after the date the
conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means
that, with respect to the outstanding securities of such series,
the Company may omit to comply with and shall have no liability
in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any
reference elsewhere herein to any such Section or by reason of
any reference in any such section to any other provision herein
or in any other document, but the remainder of this Indenture and
such securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application of
either Section 1302 or Section 1303 to the Outstanding Securities
of such series:
(1) the Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with
the provisions of this Article Thirteen applicable to it) as
trust funds in trust for the purpose of making the following
payments, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of such Securities, (A)
money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, money in
an amount, or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay
and discharge, (i) the principal of (and premium, if any, on) and
each installment of principal of (and premium, if any) and
interest on the Outstanding Securities of such series on the
Stated Maturity of such principal or installment of principal or
interest and (ii) any mandatory sinking fund payments or
analogous payments applicable to the Outstanding Securities of
such series on the day on which such payments are due and payable
in accordance with the terms of this Indenture of such
Securities. For this purpose, "U.S. Government Obligations"
means securities that are (x) direct obligations of the United
States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S.
Government Obligation held by such custodian for the account of
the holder of such depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government obligation or the specific payment
of principal of or interest on the U.S. Government Obligation
evidenced by such depository receipt.
(2) No Event of Default or event with which notice or lapse
of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be
continuing on the date of such deposit or, insofar as subsections
501(6) and (7) are concerned, at any time during the period
ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied
until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause
the Trustee for the Securities of such series to have a
conflicting interest as defined in Section 608 and for purposes
of the Trust Indenture Act with respect to any securities of the
Company.
(4) Such defeasance or covenant defeasance shall not result
in a breach or violation of, or constitute a default under, this
Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause
any Securities of such series then listed on any registered
national securities exchange under the Securities Exchange Act of
1934, as amended, to be delisted.
(6) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) 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 shall confirm that, the
Holders of the Outstanding Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as
a result of such 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 defeasance had not occurred.
(7) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Outstanding Securities of
such 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.
(8) Such defeasance or covenant defeasance shall be
effected in compliance with any additional terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
(9) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent provided for in the Indenture
relating to either the defeasance under Section 1302 or the
covenant defeasance under Section 1303 (as the case may be) have
been complied with.
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of
Section 1003, all money and U.S. Government obligations
(including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee -- collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect
of the Outstanding Securities of such series shall be held in
trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the
company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and
to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from
other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the
U.S. Government Obligations deposited pursuant to Section 1304 or
the principal and interest received in respect thereof other than
any such tax, fee or other charge which by law is for the account
of the Holders of the Outstanding Securities of such series.
Anything in this Article Thirteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company
from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1304
which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of
the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
ARTICLE XIV
Meetings of Holders
Section 1401. Purposes of Which Meetings May be Called.
A meeting of Holders of Securities of any series may be
called at any time and from time to time pursuant to this Article
to make, give or take any request, demand, authorization, notice,
consent, waiver or other Act provided by this Indenture to be
made, given or taken by Holders of Securities of such series.
Section 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of
Holders of Securities of any series for any purpose specified in
Section 1401, to be held at such time and at such place in the
Borough of Manhattan, The City of New York, or in London, as the
Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken
at such meeting, shall be given, in the manner provided in
Section 106, not less than 21 or more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a
Board Resolution, or the Holders of at least 10% in principal
amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of
Securities of such series for any purpose specified in section
1401, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting
within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such
series in the amount above specified, as the case may be, may
determine the time and the place in the Borough of Manhattan, The
City of New York, or in London for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
Section 1403. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of
Securities of any series, a person shall be (1) a Holder of one
or more Outstanding Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or
Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled
to be present or to speak at any meeting of Holders of Securities
of any series shall be the Persons entitled to vote at such
meeting and their counsel, any representatives of the Trustee and
its counsel and any representatives of the Company and its
counsel.
Section 1404. Quorum; Action.
The Persons entitled to vote a majority in principal
amount of the Outstanding Securities of a series shall constitute
a quorum for a meeting of Holders of Securities of such series;
provided, however, that if any action is to be taken at such
meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than
66 2/3% in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote 66 2/3% in principal amount
of the Outstanding Securities of such series constitute a quorum.
In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at
the request of Holders of Securities of such series, be
dissolved. In the absence of a quorum in any other case the
meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 1402(a), except
that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series
that shall constitute a quorum.
Except as limited by the first proviso to Section 902,
any resolution presented to a meeting or adjourned meeting duly
reconvened at which a quorum is present as aforesaid may be
adopted only by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by such first proviso
to Section 902, any resolution with respect to any consent or
waiver which this Indenture expressly provides may be given by
the Holders of not less than 66 2/3% in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders
of 66 2/3% in principal amount of the Outstanding Securities of
that series; and provided further that, except as limited by such
first proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent,
waiver or other Act which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding
Securities of that series.
Any resolution passed or decision taken at any meeting
of Holders of Securities of any series duly held in accordance
with this Section shall be binding on all the Holders of
Securities of such series and the related coupons, whether or not
present or represented at the meeting.
Section 1405. Determination of Voting Rights; Conduct
and Adjournment of Meetings.
(a) Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Holders of Securities of
such series in regard to proof of the holding of Securities of
such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission
and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct
of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 104
and the appointment of any proxy shall be proved in the manner
specified in Section 104 or, in the case of Bearer Securities, by
having the signature of the person executing the proxy witnessed
or guaranteed by any trust company, bank or banker authorized by
Section 104 to certify to holding of Bearer Securities. Such
regulations may provide that written instruments appointing
proxies, regular on their face, may be presumed valid and genuine
without the proof specified in section 104 or other proof.
(b) The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Holders of Securities
as provided in Section 1402(b), in which case the Company or the
Holders of Securities of the series calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting.
(c) At any meeting each Holder of a Security of such
series or proxy shall be entitled to one vote for each $1,000
principal amount (or the equivalent in ECU, any other composite
currency or a Foreign Currency) of Securities of such series held
or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall
have no right to vote, except as a Holder of a Security of such
series or proxy.
(d) Any meeting of Holders of Securities of any series
duly pursuant to Section 1402 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a
majority in principal amount of the Outstanding Securities of
such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
Section 1406. Counting Votes and Recording Action
of Meetings.
The vote upon any resolution submitted to any meeting
of Holders of Securities of any series shall be by written
ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives
by proxy and the principal amounts and serial numbers of the
Outstanding Securities of such series held or represented by
them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record, at least
in triplicate, of the proceedings of each meeting of Holders of
Securities of any series shall be prepared by the secretary of
the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was given as provided in
Section 1402 and, if applicable, Section 1404. Each copy shall
be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one such copy shall be
delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter of have attached thereto the
ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate
seals to be hereunto affixed and attested, all as of the day and
year first above written.
THE MEAD CORPORATION
By: /s/ William R. Graber
William R. Graber
Vice President and
Chief Financial Officer
[CORPORATE SEAL]
/s/ David L. Santez
David L. Santez
Assistant Secretary and
Associate General Counsel
CITIBANK, N.A.
By: /s/ P. DeFelice
Title: Vice President
[CORPORATE SEAL]
Attest:
/s/ Arthur W. Aslanian
Arthur W. Aslanian
Vice President
STATE OF OHIO
COUNTY OF MONTGOMERY ss.:
On this 20 day of October, 1997 before me appeared William R.
Graber to me personally known, who, being by me duly sworn, did
say that he is the Vice President and Chief Financial Officer of
THE MEAD CORPORATION, one of the corporations described in and
which executed the above instrument, and that the seal affixed to
said instrument is the corporate seal of said corporation, and
that said instrument was signed and sealed on behalf of said
corporation by authority of its Board of Directors, and said
person acknowledged said instrument to be the free act and deed
of said corporation.
/s/ David L. Santez
(NOTARIAL SEAL]
STATE OF NEW YORK )
) ss.:
CITY OF NEW YORK )
On this 20th day of October, 1997 before me appeared
Pat DeFelice to me personally known, who, being by me duly sworn,
did say that he is the VICE PRESIDENT of CITIBANK, N.A., one of
the corporations described in and which executed the above
instrument, and that the seal affixed to said instrument is the
corporate seal of said corporation, and that said instrument was
signed and sealed on behalf of said corporation by authority of
its Board of Directors, and said person acknowledged said
instrument to be the free act and deed of said corporation.
/s/ Jeffrey Berger
(NOTARIAL SEAL]
EXHIBIT A
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE]
CERTIFICATE
_________________________
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for
our account (i) are owned by persons(s) that are not citizens or
residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is
subject to United States federal income taxation regardless of
its source ("United States person(s)"), (ii) are owned by United
States person(s) that are (a) foreign branches of United States
financial institutions (as defined in United States Treasury
Regulations Section 1.165-12(c)(1)(v)) purchasing for their own
account or for resale, or (b) United States person(s) who
acquired the Securities through foreign branches of United States
financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its
agent, that you may advise the Issuer or its agent that such
financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign
financial institutions for purposes of resale during the
restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution
described in clause (iii) above (whether or note also described
in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the States and District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam,
American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex or by
electronic transmission on or prior to the date on which you
intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance
with your Operating Procedures if any applicable statement herein
is not correct on such date, and in the absence of any such
notification it may be assumed that this certification applies as
of such date.
This certificate excepts and does not relate to __________
of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an
exchange for an interest in a permanent Global Security or an
exchange for and delivery of definitive Securities (or, if
relevant, collection of any interest) cannot be made until we do
so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Date: ____________________, 19__
[To be dated no earlier
than the 15th day prior to
(i) the Exchange Date or (ii)
the relevant Interest Payment
Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making
Certification]
______________________________
(Authorized Signatory)
Name:
Title:
EXHIBIT B
[FORM OF CERTIFICATE TO BE GIVEN BY EURO-CLEAR
AND CEDEL IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY
GLOBAL SECURITY OR TO OBTAIN
INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE]
CERTIFICATE
_________________________
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that based solely on written
certifications that we have received in writing, by tested telex
or by electronic transmission from each of the persons appearing
in our records as persons entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, __________
principal amount of the above-captioned Securities (i) is owned
by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any
estate or trust the income of which is subject to United States
Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the
Securities through such United States financial institutions on
the date hereof (and in each case (a) or (b), each such financial
institution has agreed, on its own behalf or through its agent,
that we may advise the Issuer or its agent that such financial
institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by
United States or foreign financial institutions(s) for purposes
of resale during the restricted period (as defined in United
States Treasury Regulations (Section 1.163-5(c)(2)(i)(D)(7)), and
to the further effect, that financial institutions described in
clause (iii) above (whether or not also described in clause (i)
and (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or
its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its "possessions" include Puerto Rico, the U.S. Virgin Islands,
Guam, American Samoa, Wake Island and the Northern Mariana
Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any
interest) any portion of the temporary Global Security
representing the above-captioned Securities excepted in the
above-referenced certificates of Member Organizations and (ii) as
of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements
made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant,
collection of any interest) are no longer true and cannot be
relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened
in connection with which this certificate is or would be
relevant, we irrevocably authorize you to produce this
certificate or a copy thereof to any interested party in such
proceedings.
Date: ____________________, 19__
[To be dated no earlier
than the Exchange Date
or the relevant Interest
Payment Date occurring
prior to the Exchange
Date, as applicable)]
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
BRUSSELS OFFICE, as
operator of the
Euro-clear System]
[CEDEL]
By ______________________________
MISCO40
110191
[Form of Face of Security]
[Fixed Rate Medium-Term Note]
REGISTERED REGISTERED
No. FXR- PRINCIPAL AMOUNT:
CUSIP
THE MEAD CORPORATION
MEDIUM-TERM NOTE, SERIES A
[Insert if the Security is to be a Global
Security -- This Security is a Global Security within the
meaning of the Indenture referred to on the reverse
hereof and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable
for Securities registered in the name of a Person other
than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and this
Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of
the Depositary.
Unless this certificate is presented by an
authorized representative of The Depository Trust Company
(55 Water Street, New York, New York), a New York
corporation, to the Company or its agent for registration
of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative
of The Depository Trust Company (and any payment is made
to Cede & Co. or to such other entity as is requested by
an authorized representative of The Depository Trust
Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
SPECIFIED CURRENCY: EXCHANGE RATE
AGENT:[Citibank, N.A.]
(Only applicable if
PAYING AGENT: Specified Currency
INTEREST PAYMENT DATES: is other than U.S.
REGULAR RECORD DATES: dollars)
EXCHANGE RATE: U.S.$1.00= _______ AUTHORIZED
DENOMINATIONS:
(Only applicable if
TRUSTEE'S NAME: Specified Currency
[Citibank, N.A.] is other than U.S.
dollars)
ORIGINAL STATED MATURITY:
ISSUE DATE:
INTEREST RATE: % REDEMPTION
COMMENCEMENT
DATE:
REDEMPTION REDEMPTION
PERIODS: PRICES:
OID AMOUNT: MAKE-WHOLE
(Only applicable if PREMIUM
issued at Original Issue DEFAULT AMOUNT:
Discount)
ORIGINAL ISSUE DEFAULT RATE:
DISCOUNT SECURITY: (applicable only if
Security is an
Yes:___ No:___ Original Issue
Discount Security)
AMORTIZATION AMORTIZATION PAYMENT
FORMULA: DATE(S):
OPTIONAL REPAYMENT
DATE(S):
REPAYMENT DATE:
REPAYMENT PRICE:
OTHER PROVISIONS:
The Mead Corporation, a corporation duly
organized and existing under the laws of the State of
Ohio (herein called the "Company," which term includes
any successor corporation under the Indenture referred to
on the reverse hereof), for value received, hereby
promises to pay to
_______________________________________________
___________________________________, or registered
assigns, the principal sum of
_____________________________ on the Stated Maturity
specified above [If the Security is to bear interest
prior to Stated Maturity, insert --, and to pay interest
thereon from the Original Issue Date specified above or
from the most recent Interest Payment Date to which
interest has been paid or duly provided for, on the
Interest Payment Dates specified above in each year and
at Stated Maturity, commencing on the first such Interest
Payment Date next succeeding the Original Issue Date (or,
if the Original Issue Date is after a Regular Record Date
and before the Interest Payment Date immediately
following such Regular Record Date, on the second such
Interest Payment Date next succeeding the Original Issue
Date), at the Interest Rate per annum specified above,
until the principal hereof is paid or made available for
payment, and (to the extent that the payment of such
interest shall be legally enforceable) at the Interest
Rate per annum on any overdue principal and premium
(including any overdue sinking fund or redemption
payment) and on any overdue installment of interest. 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 15th calendar
day (whether or not a Business Day), next preceding the
Interest Payment Date; provided, however, that interest
payable at Stated Maturity will be payable to the Person
to whom principal shall be payable. If this Security is
designated above as an Amortizing Security, then payments
of principal and interest will be made in installments
over the life of this Security on each Interest Payment
Date set forth above, and at Stated Maturity or upon
earlier redemption or repayment or otherwise in
accordance with any Amortization Formula or on any
Amortization Date set forth above. Any such interest not
so punctually paid or duly provided for shall 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 of which 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 Stated 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, repayment or at Stated Maturity and in such
case the overdue principal of this Security shall bear
interest at the Default Rate per annum specified above
(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 Default Rate
per annum specified above (to the extent that the 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 principal of (and premium, if any)
and any such interest on this Security will be made in
the Specified Currency specified above; provided,
however, that, if this Security is denominated in other
than U.S. dollars, payments of principal (and premium, if
any) and interest on this Security will nevertheless be
made in U.S. dollars: (a) at the option of the Holder of
this Security under the procedures described in the two
next succeeding paragraphs and (b) at the Company's
option in the case of imposition of exchange controls or
other circumstances beyond the Company's control as
described in the fourth succeeding paragraph. The
Company will at all times appoint and maintain a Paying
Agent (which may be the Trustee) authorized by the
Company to pay the principal of (and premium, if any) or
interest on any Securities of this series on behalf of
the Company and having an office or agency (the "Paying
Agent Office") in The City of New York (the "Place of
Payment"), where Securities of this series may be
presented or surrendered for payment and where notices,
designations or requests in respect of payments with
respect to Securities of this series may be served. The
Company has initially appointed Citibank, N.A. as such
Paying Agent. The Company will give prompt written
notice to the Trustee of any change in such appointment.
Except as provided in the next paragraph,
payments of interest and principal (and premium, if any)
on this Security, if denominated in a Specified Currency
other than U.S. dollars, will be made in U.S. dollars if
the registered Holder of this Security on the relevant
Regular Record Date, or at the Stated Maturity,
redemption or repayment of such Security, as the case may
be, has transmitted a written request for such payment in
U.S. dollars to the Paying Agent at the Paying Agent
Office in the Place of Payment on or before such Regular
Record Date, or the date 16 days before such Stated
Maturity, redemption or repayment, as the case may be.
Such request may be in writing (mailed or hand delivered)
or by cable, telex or other form of facsimile
transmission. Any such request made for any Security by
a registered Holder will remain in effect for any further
payments of interest and principal (and premium, if any)
on such Security payable to such Holder, unless such
request is revoked on or before the relevant Regular
Record Date or the date 16 days before the Stated
Maturity, redemption or repayment of such Security, as
the case may be.
The U.S. dollar amount to be received by a
Holder of this Security, if denominated in a Specified
Currency other than U.S. dollars, who elects to receive
payment in U.S. dollars will be based on the highest bid
quotation in The City of New York received by the
Exchange Rate Agent as of 11:00 a.m., New York City time
on the second Business Day next preceding the applicable
payment date from three recognized foreign exchange
dealers (one of which may be the Exchange Rate Agent) for
the purchase by the quoting dealer of such Specified
Currency for U.S. dollars for settlement on such payment
date in the aggregate amount of such Specified Currency
payable to all Holders of Securities of this series, if
denominated in such Specified Currency, electing to
receive U.S. dollar payments on such payment date and at
which the applicable dealer commits to execute a
contract. If three such bid quotations are not available
on the second Business Day preceding the payment of
principal (and premium, if any) or interest for any such
Security, such payment will be made in the Specified
Currency. The Holder by his or her acceptance of this
Security hereby agrees that all currency exchange costs
associated with any payment in U.S. dollars on this
Security will be borne by the Holder hereof by deductions
from such payment. If this Security is denominated in a
Specified Currency other than U.S. dollars, (i) the
Company will at all times appoint and maintain a banking
institution that is not an Affiliate of the Company as
Exchange Rate Agent hereunder; and (ii) the Company has
initially appointed the Exchange Rate Agent specified
above as such Exchange Rate Agent and will give prompt
written notice to the Trustee of any change in such
appointment.
Payment of the principal of (and premium, if
any) and interest on any Security of this series due at
the Stated Maturity, redemption or repayment of such
Security will be made in immediately available funds upon
surrender of such Security to the Paying Agent at the
Paying Agent Office in the Place of Payment; provided
that such Security is presented to the Paying Agent in
time for the Paying Agent to make such payment in
accordance with its normal procedures. Payments of
interest on any Security of this series (other than at
the Stated Maturity, redemption or repayment of such
Security) will be made by check mailed to the address of
the Person entitled thereto as it appears in the Security
Register or by wire transfer to such account as may have
been appropriately designated to the Paying Agent by such
Person.
If the principal of (and premium, if any) or
interest on any Security of this series is payable in
other than U.S. dollars and such Specified Currency is
not available, due to the imposition of exchange controls
or other circumstances beyond the control of the Company,
the Company will be entitled to satisfy its obligations
to the Holder of such Security by making such payments in
U.S. dollars on the basis of the most recently available
Exchange Rate (as defined on the reverse hereof) and the
payment in U.S. dollars shall not be an event of Default
hereunder.
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 or its Authenticating Agent by manual
signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: THE MEAD CORPORATION
[SEAL] By ________________________
Name:
Title:
Attest:
_______________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the
within-mentioned Indenture.
CITIBANK, N.A.
As Trustee
By _______________________
Authorized Signatory
[Form of Reverse of Security]
[Fixed Rate Medium-Term Note]
THE MEAD CORPORATION
MEDIUM-TERM NOTE, SERIES A
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 October 20, 1997
(the "Indenture"), between the Company and Citibank,
N.A., 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. The Securities of this series may be
issued upon original issuance under the Indenture from
time to time at an aggregate initial public offering
price not to exceed $154,000,000 or its equivalent in
foreign currencies, currency units or composite
currencies. The aggregate principal amount of Securities
of this series which may be issued under the Indenture
will be limited to the aggregate of the principal amounts
of the Securities of this series so issued upon original
issuance in accordance with such limit.
Payments of interest hereon with respect to any
Interest Payment Date will include interest accrued from
and including the immediately preceding Interest Payment
Date (or from and including the Original Issue Date, if
no interest has been paid or duly made available for
payment) to but excluding the applicable Interest Payment
Date or Stated Maturity Date, as the case may be.
Interest hereon shall be computed on the basis of a 360-
day year of twelve 30-day months.
Any payment on this Security due on any day
which is not a Market Day (and, if the Specified Currency
specified on the face hereof is other than U.S. dollars,
a Business Day in the country issuing such Specified
Currency (or, for ECUs, Brussels)) need not be made on
such day, but may be made on the next succeeding day that
is a Market Day with respect to this Security (and, if
the Specified Currency of this Security is other than
U.S. dollars, a Business Day in the country issuing the
Specified Currency (or, for ECUs, Brussels)) with the
same force and effect as if made on such due date, and no
interest shall accrue for the period from and after such
date. "Business Day," for any particular location, means
each Monday, Tuesday, Wednesday, Thursday, and Friday
that is not a day on which banking institutions in such
location are authorized or obligated by law or executive
order to close. "Market Day" means any Business Day in
the City of New York.
This Security may be subject to repayment at
the option of the Holder prior to the Stated Maturity
specified on the face of this Security on the Optional
Repayment Date(s), if any, specified on the face of this
Security. If no Repayment Dates are specified on the
face of this Security, this Security may not be so repaid
at the option of the Holder hereof prior to the Stated
Maturity. On any Repayment Date, this Security shall be
repayable in whole or in part in increments of $1,000 or
such other minimum denomination specified on the face
hereof (provided that any remaining principal amount
shall be at least $1,000 or such other minimum
denomination) at the option of the Holder hereof at a
repayment price equal to 100% of the principal amount to
be repaid (or, if this Security is an Original Issue
Discount Security, such lesser amount as is provided
herein), together with accrued but unpaid interest hereon
to the date of repayment. For this Security to be repaid
in whole or in part at the option of the Holder hereof,
this Security must be received, together with the form
entitled "Option to Elect Repayment" (set forth below)
duly completed, by the Trustee at its Corporate Trust
Office (or such other address of which the Company shall
from time to time notify the Holders), not more than 60
nor less than 30 days prior to the date of repayment.
Exercise of such repayment option by the Holder hereof
shall be irrevocable. In the event of repayment of this
Security in part only, a new Security for the unpaid
portion hereof shall be issued in the name of the Holder
hereof.
If so designated on the face of this Security,
this Security may be redeemed prior to its Stated
Maturity by the Company on any date on or after the
Redemption Commencement Date indicated on the face
hereof. If a Redemption Commencement Date is not
designated on the face hereof, then this Security may not
be redeemed by the Company prior to its Stated Maturity.
If a Redemption Commencement Date is specified
on the face of this Security, this Security may be
redeemed prior to its Stated Maturity at the option of
the Company in whole or in part in increments of $1,000
or such other minimum denomination specified on the face
hereof (provided that any remaining principal amount of
this Security shall be at least $1,000 or such other
minimum denomination specified on the face hereof), at
the Redemption Price, together with accrued interest to
the Redemption Date and a Make-Whole Premium, if any, on
notice given not more than 60 nor less than 30 days prior
to the Redemption Date. Interest installments whose
Stated Maturity is on or prior to such Redemption Date
will be payable to the Holder of this Security, or one or
more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the
face hereof, all as provided in the Indenture. If less
than all of the Securities of this series are to be
redeemed, the Securities of this series to be redeemed
shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate. In the event of
redemption of this Security in part only, a new Security
for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon surrender hereof.
The Company shall mail to each Security Holder
whose Security is to be redeemed in whole or in part a
notice setting forth the portion of such Security to be
redeemed and such notice shall be mailed to such Holder
at his address as it appears in the Security Register.
The amount of the "Make-Whole Premium" in
respect of the principal amount of this Security to be
redeemed will be the excess, if any, of (i) the sum of
the present values, as of the Redemption Date of this
Security, of (A) the respective interest payments
(exclusive of the amount of accrued interest to the
Redemption Date) on this Security that, but for such
redemption, would have been payable on their respective
Interest Payment Dates after such Redemption Date, and
(B) the payment of such principal amount that, but for
such redemption, would have been payable on the Stated
Maturity over (ii) the amount of such principal to be
redeemed. Such present values will be determined in
accordance with generally accepted principles of
financial analysis by discounting the amounts of such
payments of interest and principal from their respective
Stated Maturities to such Redemption Date at a discount
rate equal to the Treasury Yield.
The "Treasury Yield" in respect of this
Security shall be determined as of the date on which
notice of redemption of this Security is sent to the
Holder hereof by reference to the most recent Board of
Governors of the Federal Reserve System "Statistical
Release H.15 (519)" (or any successor publication of the
Federal Reserve System) which has become publicly
available not more than two Business Days prior to such
date (or, if such Statistical Release (or successor
publication) is no longer published or no longer contains
the applicable data, to the most recently published issue
of The Wall Street Journal (Eastern Edition) published
not more than two Business Days prior to such date that
contains such data or, if The Wall Street Journal
(Eastern Edition) is no longer published or no longer
contains such data, to any publicly available source of
similar market data), and shall be the most recent weekly
average yield on actively traded U.S. Treasury Securities
adjusted to a constant maturity equal to the Remaining
Life of this Security and, if applicable, converted to a
bond equivalent yield basis as described below. The
"Remaining Life of this Security" shall equal the number
of years from the Redemption Date to the Stated Maturity
of this Security; provided that if the Remaining Life of
this Security is not equal to the constant maturity of a
U.S. Treasury security for which a weekly average yield
is specified in the applicable source, then the Remaining
Life of this Security shall be rounded to the nearest
one-twelfth of one year and the Treasury Yield shall be
obtained by linear interpolation computed to the fifth
decimal place (one thousandth of a percentage point) and
then rounded to the fourth decimal place (one hundredth
of a percentage point)), after rounding to the nearest
one-twelfth of one year, from the weekly average yields
of (a) the actively traded U.S. Treasury security with a
maturity closest to and less than the Remaining Life of
this Security and (b) the actively traded U.S. Treasury
security with a maturity closest to and greater than the
Remaining Life of this Security, except that if the
Remaining Life of this Security is less than three
months, the weekly average yield on actively traded U.S.
Treasury securities adjusted to a constant maturity of
three months shall be used. The Treasury Yield shall, if
expressed on a yield basis other than that equivalent to
a bond equivalent yield basis, be converted to a bond
equivalent yield basis and shall be computed to the fifth
decimal place (one thousandth of a percentage point) and
then rounded to the fourth decimal place (one hundredth
of a percentage point).
If an Event of Default with respect to the
Securities of this series shall occur and be continuing,
the principal of the Securities of this series (or, in
the case of any Securities of this series that are
Original Issue Discount Securities, an amount of
principal thereof determined in accordance with the
provisions of this Security set out in the next paragraph
(the "Default Amount")) may be declared due and payable
in the manner and with the effect provided in the
Indenture.
If this Security is an Original Issue Discount
Security and if an Event of Default with respect to the
Securities of this series shall have occurred and be
continuing, the Default Amount of principal of this
Security may be declared due and payable in the manner
and with the effect provided in the Indenture. Such
Default Amount shall be equal to the adjusted issue price
as at the first day of the accrual period as determined
under the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder (the
"Code"), in which the date of acceleration occurs
increased by the daily portion of the original issue
discount for each day in such accrual period ending on
the date of acceleration, as determined under the Code.
Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue
principal and overdue interest, all of the Company's
obligations in respect of the payment of the principal of
and interest, if any, on this Security shall terminate.
The Indenture contains provisions for
defeasance at any time of (i) the entire indebtedness of
this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each
case upon compliance with certain conditions set forth
therein.
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 at least 66-2/3% in principal amount of the
Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions
permitting the Holders of specified percentages in
principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. The principal amount of an Original Issue
Discount Security or a Security denominated in a
Specified Currency other than U.S. dollars that shall be
deemed to be Outstanding for purposes of the foregoing
shall be determined as provided in the Indenture. 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
or Securities 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.
As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have
the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of
a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than
25% in principal amount of the Securities of this series
at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal
amount of Securities of this series at the time
Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding,
for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due
dates expressed herein.
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, places and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to
certain limitations (including, in the case of any Global
Security, certain additional 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 the Place of Payment, 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 and of like tenor, 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
(i) if denominated in U.S. dollars, $1,000 and any
integral multiples thereof or (ii) if denominated in a
Specified Currency other than U.S. dollars, the
equivalent amount of such Specified Currency, at the noon
buying rate in The City of New York for cable transfers
for such Specified Currency (the "Exchange Rate") on or
prior to the sixth Business Day in The City of New York
and in the country issuing such currency (or, for ECUs,
Brussels) next preceding the Original Issue Date, to U.S.
$1,000 (rounded to the nearest 1,000 units of such
Specified Currency) and any greater amount that is an
integral multiple of such amount unless otherwise
specified on the face hereof. As provided in the
Indenture and subject to certain limitations (including,
in the case of any Global Security, certain additional
limitations) therein set forth, Securities of this series
are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor 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.
THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
All terms used in this Security that are
otherwise not defined herein but are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of the within Security, shall be
construed as though they were written out in full
according to applicable laws or regulations
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - _________ Custodian _______
(Cust) (Minor)
under Uniform Gifts to Minors Act
__________________________
(State)
Additional abbreviations may also be used
though not in the above list.
________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfers) unto __________________
_________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________
/_______________________/
_________________________________________________________
_________________________________________________________
(Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee)
_________________________________________________________
the within Security and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________
_________________________________________________________
to transfer said Security on the books of the Company,
with full power of substitution in the premises.
If less than the entire principal amount of the
within Security is to be sold, transferred or assigned,
specify the portion thereof which the Holder elects to
have sold, transferred or assigned: __________; and
specify the denomination or denominations (which shall
not be less than the minimum-authorized denomination) of
the Securities to be issued to the Holder for the portion
of the within Security not being sold, transferred or
assigned (in the absence of any such specification, one
such Security will be issued for the portion not being
sold, transferred or assigned):________.
Dated: _______________
Signature Guaranteed
___________________________ _________________________
NOTICE: Signature must be NOTICE: The signature to
guaranteed by a member firm this assignment must
of the New York Stock Ex- correspond with the name
change or a commercial bank as written upon the face
or trust company. of the within Security in
every particular, without
alteration or enlargement
or any change whatever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Company to repay the within Security (or
portion thereof specified below) pursuant to its terms at
a price equal to the principal amount thereof, together
with interest to the Repayment Date, to the undersigned
at
_________________________________________________________
_________________________________________________________
_________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the
within Security is to be repaid, specify the portion
thereof which the Holder elects to have repaid:
________; and specify the denomination or denominations
(which shall not be less than the minimum-authorized
denomination) of the Securities to be issued to the
Holder for the portion of the within Security not being
repaid (in the absence of any such specification, one
such Security will be issued for the portion not being
repaid): ______.
Dated: _________________ _________________________
NOTICE: The signature in
this Option to Elect
Payment must correspond
with the name as written
upon the face of the
within Security in every
particular, without
alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED
[Form of Face of Security]
[Floating Rate (Resetting Daily, Weekly,
Monthly, Quarterly, Semi-Annually or Annually)
Non-Original Issue Discount
Medium-Term Note]
REGISTERED REGISTERED
No. FLR- PRINCIPAL AMOUNT:
CUSIP
THE MEAD CORPORATION
MEDIUM-TERM NOTE, SERIES A
[Insert if the Security is to be a Global
Security, -- This Security is a Global Security within
the meaning of the Indenture referred to on the reverse
hereof and is registered in the name of a Depositary or a
nominee of a Depositary. This Security is exchangeable
for Securities registered in the name of a Person other
than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and this
Security may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee
of the Depositary to the Depositary or another nominee of
the Depositary.
Unless this certificate is presented by an
authorized representative of The Depository Trust Company
(55 Water Street, New York, New York), a New York
corporation, to the Company or its agent for registration
of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such
other name as requested by an authorized representative
of The Depository Trust Company (and any payment is made
to Cede & Co. or to such other entity as is requested by
an authorized representative of The Depository Trust
Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has
an interest herein.]
ORIGINAL ISSUE DATE: STATED MATURITY:
INITIAL INTEREST RATE %:
AUTHORIZED EXCHANGE RATE
DENOMINATIONS: AGENT:
(only applicable if (Only applicable
Specified Currency is if Specified
other than U.S. Currency is other
Dollars) than U.S. Dollars)
INTEREST RATE BASIS:
INDEX MATURITY:
CALCULATION DATES:
OID AMOUNT: EXCHANGE RATE:
(Only applicable if U.S. $1.00= ____
issued at Original
issue discount)
ORIGINAL ISSUE DEFAULT INTEREST
DISCOUNT SECURITY: RATE:
SPREAD: SPREAD MULTIPLIER:
SPECIFIED CURRENCY:
MINIMUM INTEREST MAXIMUM INTEREST
RATE: RATE:
INTEREST PAYMENT
DATES:
Third Wednesday of: ___ March
___ June
___ September
___ December
_______________
_______________
INTEREST RESET DATES: INTEREST RESET
PERIOD:
INTEREST
DETERMINATION
DATES:
Third Wednesday of:
CALCULATION AGENT: REDEMPTION
COMMENCEMENT DATE:
REDEMPTION PERIODS: REDEMPTION PRICES:
PREMIUM REDEMPTION
AMOUNT:
MAKE-WHOLE PREMIUM
AMORTIZATION AMORTIZATION
FORMULA: PAYMENT DATE(S):
REPAYMENT DATES:
OTHER PROVISIONS:
The Mead Corporation, a corporation duly
organized and existing under the laws of the State of
Ohio (herein called the "Company", which term includes
any successor corporation under the Indenture referred to
on the reverse hereof), for value received, hereby
promises to pay to
_________________________________________, or registered
assigns, the principal sum of ________________ on the
Stated Maturity specified above [If the Security is to
bear interest prior to Stated Maturity, insert -- and to
pay interest thereon from the Original Issue Date
specified above or from the most recent Interest Payment
Date to which interest has been paid or duly provided
for, on the Interest Payment Dates in each year specified
above and at Stated Maturity, commencing on the first
such Interest Payment Date next succeeding the Original
Issue Date (or, if the Original Issue Date is after a
Regular Record Date and before the Interest Payment Date
immediately following such Regular Record Date, on the
second such Interest Payment Date next succeeding the
Original Issue Date), at a rate per annum equal to the
Initial Interest Rate specified above until the first
Interest Reset Date following the Original Issue Date and
on and after such Interest Reset Date at the rate
determined in accordance with the provisions set forth on
the reverse hereof, until the principal hereof is paid or
made available for payment, and at the rate of ...% per
annum on any overdue principal and premium (including any
overdue sinking fund or redemption payment) and on any
overdue installment of interest. 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 15th calendar
day (whether or not a Business Day) immediately preceding
such Interest Payment Date; provided, however, that
interest payable at Stated Maturity will be payable to
the Person to whom principal shall be payable. If this
Security is designated above as an Amortizing Security,
then payments of principal and interest will be made in
installments over the life of this Security on each
Interest Payment Date set forth above, and at Stated
Maturity or upon earlier redemption or repayment or
otherwise in accordance with any Amortization Formula or
on any Amortization Date set forth above. Any such
interest not so punctually paid or duly provided for
shall 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 of which
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.]
Payment of principal of (and premium, if any)
and any such interest on this Security will be made in
the Specified Currency specified above; provided,
however, that, if this Security is denominated in other
than U.S. dollars, payments of principal (and premium, if
any) and interest on this Security will nevertheless be
made in U.S. dollars: (a) at the option of the Holder of
this Security under the procedures described in the two
next succeeding paragraphs and (b) at the Company's
option in the case of imposition of exchange controls or
other circumstances beyond the Company's control as
described in the fourth succeeding paragraph. The
Company will at all times appoint and maintain a Paying
Agent (which may be the Trustee) authorized by the
Company to pay the principal of (and premium, if any) or
interest on any Securities of this series on behalf of
the Company and having an office or agency (the "Paying
Agent Office") in The City of New York (the "Place of
Payment"), where Securities of this series may be
presented or surrendered for payment and where notices,
designations or requests in respect of payments with
respect to Securities of this series may be served. The
Company has initially appointed Citibank, N.A. as such
Paying Agent. The Company will give prompt written
notice to the Trustee of any change in such appointment.
Except as provided in the next paragraph,
payments of interest and principal (and premium, if any)
on this Security if, denominated in a Specified Currency
other than U.S. dollars, will be made in U.S. dollars if
the registered Holder of this Security on the relevant
Regular Record Date, or at the Stated Maturity,
redemption or repayment of such Security, as the case may
be, has transmitted a written request for such payment in
U.S. dollars to the Paying Agent at the Paying Agent
Office in the Place of Payment on or before such Regular
Record Date, or the date 16 days before such Stated
Maturity, redemption or repayment, as the case may be.
Such request may be in writing (mailed or hand delivered)
or by cable, telex or other form of facsimile
transmission. Any such request made for any Security by
a registered Holder will remain in effect for any further
payments of interest and principal (and premium, if any)
on such Security payable to such Holder, unless such
request is revoked on or before the relevant Regular
Record Date or the date 16 days before the Stated
Maturity, redemption or repayment of such Security, as
the case may be.
The U.S. dollar amount to be received by a
Holder of this Security, if denominated in a Specified
Currency other than U.S. dollars, who elects to receive
payment in U.S. dollars will be based on the highest bid
quotation in The City of New York received by the
Exchange Rate Agent as of 11:00 a.m., New York City time
on the second Business Day next preceding the applicable
payment date from three recognized foreign exchange
dealers (one of which may be the Exchange Rate Agent) for
the purchase by the quoting dealer of such Specified
Currency for U.S. dollars for settlement on such payment
date in the aggregate amount of such Specified Currency
payable to all Holders of Securities of this series, if
denominated in such Specified Currency, electing to
receive U.S. dollar payments on such payment date and at
which the applicable dealer commits to execute a
contract. If three such bid quotations are not available
on the second Business Day preceding the payment of
principal (and premium, if any) or interest for any such
Security, such payment will be made in the Specified
Currency. The Holder by his or her acceptance of this
Security hereby agrees that all currency exchange costs
associated with any payment in U.S. dollars on this
Security will be borne by the Holder hereof by deductions
from such payment. If this Security is denominated in a
Specified Currency other than U.S. dollars, (i) the
Company will at all times appoint and maintain a banking
institution that is not an Affiliate of the Company as
Exchange Rate Agent hereunder; and (ii) the Company has
initially appointed the Exchange Rate Agent specified
above as such Exchange Rate Agent and will give prompt
written notice to the Trustee of any change in such
appointment.
Payment of the principal of (and premium, if
any) and interest on any Security of this series due at
the Stated Maturity, redemption or repayment of such
Security will be made in immediately available funds upon
surrender of such Security to the Paying Agent at the
Paying Agent Office in the Place of Payment; provided
that such Security is presented to the Paying Agent in
time for the Paying Agent to make such payment in
accordance with its normal procedures. Payments of
interest on any Security of this series (other than at
the Stated Maturity, redemption or repayment of such
Security) will be made by check mailed to the address of
the Person entitled thereto as it appears in the Security
Register or by wire transfer to such account as may have
been appropriately designated to the Paying Agent by such
Person.
If the principal of (and premium, if any) or
interest on any Security of this series is payable in
other than U.S. dollars and such Specified Currency is
not available, due to the imposition of exchange controls
or other circumstances beyond the control of the Company,
the Company will be entitled to satisfy its obligations
to the Holder of such Security by making such payments in
U.S. dollars on the basis of the most recently available
Exchange Rate (as defined on the reverse hereof) and the
payment in U.S. dollars shall not be an Event of Default
hereunder.
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 or its Authenticating Agent by manual
signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for
any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated: THE MEAD CORPORATION
By_________________________
[SEAL] Name:
Title:
Attest:
__________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities issued under the
within-mentioned Indenture.
CITIBANK, N.A.
As Trustee
By __________________________
Authorized Signatory
[Form of Reverse of Security]
[Floating Rate (Resetting Daily, Weekly,
Monthly, Quarterly, Semi-Annually or Annually)
Non-Original Issue Discount
Medium-Term Note]
THE MEAD CORPORATION
MEDIUM-TERM NOTE, SERIES A
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 October 20, 1997
(the "Indenture"), between the Company and Citibank,
N.A., 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. The Securities of this series may be
issued upon original issuance under the Indenture from
time to time at an aggregate initial public offering
price not to exceed $154,000,000 or its equivalent in
foreign currencies, currency units or composite
currencies. The aggregate principal amount of Securities
of this series which may be issued under the Indenture
will be limited to the aggregate of the principal amounts
of the Securities of this series so issued upon original
issuance in accordance with such limit.
The rate of interest on this Security will be
reset daily, weekly, monthly, quarterly, semi-annually or
annually (such period being the "Interest Reset Period",
and the first date of each Interest Reset Period being an
"Interest Reset Date"), depending on the Interest Reset
Period specified on the face hereof; provided, however,
that the interest rate in effect from the Original Issue
Date to the first Interest Reset Date will be the Initial
Interest Rate specified on the face hereof. Except as
provided in the next sentence and in the seventh
succeeding paragraph (i.e., under the caption "Treasury
Rate"), the Interest Reset Date will be, if this Security
resets daily (unless the Interest Rate Basis for this
Security is the Treasury Rate), each Business Day; if
this Security resets weekly (unless the Interest Rate
Basis for this Security is the Treasury Rate), the
Wednesday of each week; if this Security resets weekly
and the Interest Rate Basis for this Security is the
Treasury Rate, the Tuesday of each week; if this Security
resets monthly, the third Wednesday of each month; if
this Security resets quarterly, the third Wednesday of
each March, June, September and December; if this
Security resets semi-annually, the third Wednesday of two
months of each year, as specified on the face hereof; if
this Security resets annually, the third Wednesday of one
month of each year, as specified on the face hereof; and
if this security resets at intervals other than those
described above, the date(s) specified on the face
hereof. If any Interest Reset Date would otherwise be a
day that is not a Market Day for this Security, the
Interest Reset Date shall be postponed to the next day
that is a Market Day for this Security, except that if
the Interest Rate Basis specified on the face hereof is
LIBOR and such next succeeding Market Day is in the next
succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Market Day for this
Security.
"Market Day" means, (i) for any Security other
than a Security whose Interest Rate Basis is LIBOR, any
Business Day in The City of New York, and, (ii) for any
Security whose Interest Rate Basis is LIBOR, any Business
Day in The City of New York which is also a day on which
dealings in deposits in U.S. dollars are transacted in
the London interbank market (each day on which dealings
in deposits in U.S. dollars are transacted in the London
interbank market, a "London Business Day"). "Business
Day" means, with respect to any particular location, each
Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in such location
are authorized or obligated by law or executive order to
close.
If any Interest Payment Date (other than an
Interest Payment Date that is the maturity date or
earlier redemption or repayment date for this Security)
would fall on a day that is not a Market Day with respect
to this Security, such Interest Payment Date will be the
following day that is a Market Day with respect to this
Security, except that if the Interest Rate Basis for this
Security is LIBOR and such Market Day is in the next
succeeding calendar month, then such Interest Payment
Date will instead be the immediately preceding day that
is a Market Day (and interest shall accrue to, but
excluding, such Interest Payment Date as rescheduled).
If the maturity date or any earlier redemption or
repayment date of this Security would fall on a day that
is not a Market Day, the payment of principal, premium,
if any, and interest otherwise due on such day will be
made on the next succeeding Market Day, and no interest
on such payment shall accrue for the period from and
after such maturity, redemption or repayment date, as the
case may be.
Except as otherwise specified, the rate of
interest on this Security for each Interest Reset Date
shall be the rate determined in accordance with the
provisions below corresponding to the Interest Rate Basis
specified on the face hereof:
Commercial Paper Rate. If the Interest Rate
Basis of this Security is the Commercial Paper Rate,
the interest rate hereon for any Interest Reset Date
shall equal (a) the Money Market Yield (calculated
as described below) of the per annum rate (quoted on
a bank discount basis) on the relevant Commercial
Paper Interest Determination Date for commercial
paper having the Index Maturity specified on the
face hereof, (i) as such rate is published by the
Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of
Governors of the Federal Reserve System
("H.15(519)") under the heading "Commercial Paper"
or (ii) if such rate is not published before 9:00
a.m., New York City time, on the relevant
Calculation Date, then as such rate is published by
the Federal Reserve Bank of New York in its daily
statistical release, "Composite 3:30 p.m. Quotations
for U.S. Government Securities" or any successor
publication published by the Federal Reserve Bank of
New York ("Composite Quotations") under the heading
"Commercial Paper" or (b) if by 3:30 p.m. New York
City time, on such Calculation Date, such rate is
not yet published in either H.15(519) or Composite
Quotations, the Money Market Yield of the arithmetic
mean of the offered per annum rates (quoted on a
bank discount basis), as of 11:00 a.m., New York
City time, on such Commercial Paper Interest
Determination Date, of three leading dealers of
commercial paper in The City of New York selected by
the Calculation Agent for commercial paper of the
Index Maturity specified on the face hereof placed
for an industrial issuer whose bond rating is "AA",
or the equivalent, from a nationally recognized
rating agency, in any of the above cases (a) or (b)
as adjusted (x) by the addition or subtraction of
the Spread, if any, specified on the face hereof,
and (y) by the multiplication by the Spread
Multiplier, if any, specified on the face hereof;
provided, however, that, if fewer than three dealers
selected as provided above by the Calculation Agent
are quoting as mentioned in this sentence, the
interest rate hereon for such Interest Reset Date
will be the interest rate hereon in effect on such
Commercial Paper Interest Determination Date (or, if
the Initial Interest Rate is then in effect, the
Commercial Paper Rate will be the Initial Interest
Rate and will not be adjusted by any Spread or
Spread Multiplier.
"Money Market Yield" shall be a yield (expressed as
a percentage) calculated in accordance with the
following formula:
Money Market Yield = 100 x 360 x D
-------------
360 - (D x M)
where "D" refers to the per annum rate for
commercial paper quoted on a bank discount basis and
expressed as a decimal and "M" refers to the actual
number of days in the period for which interest is
being calculated.
Prime Rate. If the Interest Rate Basis of this
Security is the Prime Rate, the interest rate hereon
for any Interest Reset Date shall equal (a)(i) the
rate for the relevant Prime Rate Interest
Determination Date set forth in H.15(519) under the
heading "Bank Prime Loan", or (ii) if such rate is
not published before 9:00 a.m., New York City time,
on the relevant Calculation Date, then the
arithmetic mean of the rates of interest publicly
announced by each bank that appears on the display
designated as page "USPRIME1" on the Reuters Monitor
Money Rates Service (or such other page as may
replace the USPRIME1 page on that service for the
purpose of displaying prime rates or base lending
rates of major United States banks) ("Reuters Screen
USPRIME1 Page") as such bank's prime rate or base
lending rate as in effect for such Prime Rate
Interest Determination Date as quoted on the Reuters
Screen USPRIME1 Page on such Prime Rate Interest
Determination Date or (b) if fewer than four such
rates appear on the Reuters Screen USPRIME1 Page on
such Prime Rate Interest Determination Date, the
arithmetic mean of the prime rates or base lending
rates (quoted on the basis of the actual number of
days in the year divided by a 360-day year) as of
the close of business on such Prime Rate Interest
Determination Date by three major money center banks
in The City of New York selected by the Calculation
Agent, in any of the above cases (a) or (b) as
adjusted (x) by the addition or subtraction of the
Spread, if any, specified on the face hereof, and
then (y) by the multiplication by the Spread
Multiplier, if any, specified on the face hereof;
provided, however, that, if fewer than three banks
selected as provided above by the Calculation Agent
are quoting as mentioned in this sentence, the
interest rate hereon for such Interest Reset Date
will be the interest rate hereon in effect on such
Prime Rate Interest Determination Date (or, if the
Initial Interest Rate is then in effect, the Prime
Rate will be the Initial Interest Rate and will not
be adjusted by any Spread or Spread Multiplier).
LIBOR. If the Interest Rate Basis of this
Security is LIBOR, the interest rate hereon for any
Interest Reset Date shall be determined by the
Calculation Agent in accordance with the following
provisions:
(a) The Calculation Agent will
determine either (i) the arithmetic mean
of the offered rates for deposits in U.S.
dollars for the period of the applicable
Index Maturity which appear on the Reuters
Screen LIBO Page at approximately 11:00
a.m., London time, on such LIBOR Interest
Determination Date if at least two such
offered rates appear on the Reuters Screen
LIBO Page ("LIBOR Reuters"), or (ii) the
rate for deposits in U.S. dollars for the
period of the applicable Index Maturity
that appears on the Telerate Page 3750 as
of 11:00 a.m., London time, on such LIBOR
Interest Determination Date ("LIBOR
Telerate"). "Reuters Screen LIBO Page"
means the display designated as Page
"LIBO" on the Reuters Monitor Money Rate
Service (or such other page as may replace
the LIBO page on the service for the
purpose of displaying London interbank
offered rates of major banks). "Telerate
Page 3750" means the display designated as
page "3750" on the Telerate Service (or
such other page as may replace the 3750
page on that service for the purpose of
displaying London interbank offered rates
of major banks). If neither LIBOR Reuters
nor LIBOR Telerate is specified on the
face hereof, LIBOR will be determined as
if LIBOR Telerate had been specified. If
fewer than two offered rates appear on the
Reuters Screen LIBO Page, or if no rate
appears on the Telerate Page 3750, as
applicable, LIBOR in respect of that LIBOR
Interest Determination Date will be
determined as described in (b) below.
(b) If fewer than two offered
rates appear on the Reuters Screen
LIBO Page or no rate appears on
Telerate Page 3750, as applicable,
the Calculation Agent will request
the principal London offices of four
major banks in the London interbank
market, as selected by the
Calculation Agent, to provide the
Calculation Agent with its offered
quotations for deposits in U.S.
dollars for the period of the
applicable Index Maturity to prime
banks in the London interbank market
at approximately 11:00 a.m., London
time, commencing on the second London
Business day immediately following
such LIBOR Interest Determination
Date and in a principal amount equal
to an amount of not less than U.S. $l
million that is representative of a
single transaction in such market at
such time. If at least two
quotations are provided, LIBOR with
respect to such LIBOR Interest
Determination Date will be the
arithmetic mean of such quotations.
If fewer than two quotations are
provided, LIBOR in respect of that
LIBOR Interest Determination Date
will be the arithmetic mean of rates
quoted by three major banks in The
City of New York selected by the
Calculation Agent at approximately
11:00 a.m., New York City time,
commencing on the second London
Business Day immediately following
such LIBOR Interest Determination
Date for loans in U.S. dollars to
leading European banks, for the
period of the applicable Index
Maturity and in a principal amount
equal to an amount of not less than
U.S. $1 million that is
representative for a single
transaction in such market at such
time; provided, however, that if
fewer than three banks selected as
aforesaid by the Calculation Agent
are quoting rates as mentioned in
this sentence, the rate of interest
in effect for the applicable period
will be the LIBOR in effect on such
LIBOR Interest Determination Date (or
if the Initial Interest Rate is then
in effect, LIBOR will be the Initial
Interest Rate and will not be
adjusted by any Spread or Spread
Multiplier).
In any of the above cases, LIBOR will be adjusted by
the addition or subtraction of a Spread, if any,
specified on the face hereof and by multiplication
by the Spread Multiplier, if any, specified on the
face hereof.
Treasury Rate. If the Interest Rate Basis of
this Security is the Treasury Rate, the interest
rate hereon for any Interest Reset Date shall equal
(a) the rate for the auction on the relevant
Treasury Interest Determination Date of direct
obligations of the United States ("Treasury Bills")
having the Index Maturity specified on the face
hereof, (i) as such rate is published in H.15(519)
under the heading "U.S. Government
Securities/Treasury Bills/Auction Average
(Investment)" or (ii) if such rate is not so
published by 9:00 a.m., New York City time, on the
relevant Calculation Date, then the auction average
rate (expressed as a bond equivalent, on the basis
of a year of 365 or 366 days, as applicable, and
applied on a daily basis) for such auction as
otherwise announced by the United States Department
of the Treasury or (b) if the results of such
auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or
reported as provided above by 9:00 a.m., New York
City time, on such Calculation Date, or if no such
auction is held during such week, then the rate set
forth in H.15(519) for the relevant Treasury
Interest Determination Date for the Index Maturity
specified on the face hereof under the heading "U.S.
Government Securities/Treasury Bills/Secondary
Market" or (c) if such rate is not so published by
3:00 p.m., New York City time, on the relevant
Calculation Date, then the yield to maturity
(expressed as a bond equivalent, on the basis of a
year of 365 or 366 days, as applicable, and applied
on a daily basis) of the arithmetic mean of the
secondary market bid rates as of approximately 3:30
p.m., New York City time, on such Treasury Interest
Determination Date, of three primary United States
government securities dealers in The City of New
York selected by the Calculation Agent for the issue
of Treasury Bills with a remaining maturity closest
to the Index Maturity specified on the face hereof,
in any of the above cases (a), (b) or (c) as
adjusted (x) by the addition or subtraction of the
Spread, if any, specified on the face hereof, and
(y) by the multiplication by the Spread Multiplier,
if any, specified on the face hereof; provided,
however, that, if fewer than three dealers selected
as provided above by the Calculation Agent are
quoting as mentioned in this sentence, the Treasury
Rate hereon for such Interest Reset Date will be the
interest rate hereon in effect on such Treasury
Interest Determination Date (or, if the Initial
Interest Rate is then in effect, the Treasury Rate
will be the Initial Interest Rate and will not be
adjusted by any Spread or Spread Multiplier).
CD Rate. If the Interest Rate Basis of this
Security is the CD Rate, the interest rate hereon
for any Interest Reset Date shall equal (a) the rate
for the relevant CD Rate Interest Determination Date
for negotiable certificates of deposit having the
Index Maturity specified on the face hereof (i) as
published in H.15(519) under the heading "CDs
(Secondary Market)" or (ii) if such rate is not
published before 9:00 a.m., New York City time, on
the relevant Calculation Date, then the rate on such
CD Rate Interest Determination Date for negotiable
certificates of deposit having the Index Maturity
specified on the face hereof as published in
Composite Quotations under the heading "Certificates
of Deposit" or (b) if by 3:00 p.m., New York City
time, on such Calculation Date such rate is not
published in either H.15(519) or Composite
Quotations, the arithmetic mean of the secondary
market offered rates, as of 10:00 a.m., New York
City time, on such CD Rate Interest Determination
Date, of three leading nonbank dealers of negotiable
U.S. dollar certificates of deposit in The City of
New York selected by the Calculation Agent for
negotiable certificates of deposit of major United
States money market banks with a remaining maturity
closest to the Index Maturity specified on the face
hereof in a denomination of U.S. $5,000,000, in
either of the above cases (a) or (b) as adjusted (x)
by the addition or subtraction of the Spread, if
any, specified on the face hereof, and (y) by the
multiplication by the Spread Multiplier, if any,
specified on the face hereof; provided, however,
that, if fewer than three dealers selected as
provided above by the Calculation Agent are quoting
as mentioned in this sentence, the interest rate
hereon for such Interest Reset Date will be the
interest rate hereon in effect on such CD Rate
Interest Determination Date (or, if the Initial
Interest Rate is then in effect, the CD Rate will be
the Initial Interest Rate and will not be adjusted
by any Spread or Spread Multiplier).
CMT Rate. If the Interest Rate Basis of this
Security is the CMT Rate, the interest rate hereon
for any Interest Reset Date will equal (a) the
treasury constant maturity rate for direct
obligations of the United States ("Treasury Notes")
on the relevant CMT Rate Interest Determination Date
for the Index Maturity specified on the face hereof
as published in H.15(519) under the heading "U.S.
Government Securities/Treasury Constant Maturities"
or (b) in the event that such rate is not published
by 3:00 P.M., New York City time, on the relevant
Calculation Date, the bond equivalent yield of the
arithmetic mean of the secondary market bid rates as
of approximately 3:30 P.M., New York City time, on
such CMT Rate Interest Determination Date of three
primary United States government securities dealers
in The City of New York selected by the Calculation
Agent for the issue of Treasury Notes with a
remaining maturity closest to the Index Maturity, in
either of the above cases (a) or (b) as adjusted (x)
by the addition or subtraction of the Spread, if
any, specified on the face hereof and (y) by the
multiplication of the Spread Multiplier, if any,
specified on the face hereof; provided, however,
that if fewer than three dealers selected as
aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the interest rate with
respect to such Interest Reset Date will be the CMT
Rate in effect on the day prior to such CMT Rate
Interest Determination Date (or, if the Initial
Interest Rate is then in effect, the interest rate
will be the Initial Interest Rate and will not be
adjusted by any Spread or Spread Multiplier).
Federal Funds Rate. If the Interest Rate Basis
of this Security is the Federal Funds Rate, the
interest rate hereon for any Interest Reset Date
shall equal (a) the rate on the relevant Federal
Funds Interest Determination Date for Federal Funds
(i) as published in H.15(519) under the heading
"Federal Funds (Effective)" or (ii) if such rate is
not published before 9:00 a.m., New York City time,
on the relevant Calculation Date, then the rate on
such Federal Funds Interest Determination Date as
published in Composite Quotations under the heading
"Federal Funds/Effective Rate" or (b) if by 3:00
p.m., New York City time, on such Calculation Date
such rate is not published in either H.15(519) or
Composite Quotations, the arithmetic mean of the
rates, as of 9:00 a.m., New York City time, on such
Federal Funds Interest Determination Date, for the
last transaction in overnight Federal Funds arranged
by three leading brokers of Federal Funds
transactions in The City of New York selected by the
Calculation Agent, in any of the above cases (a) or
(b) as adjusted (x) by the addition or subtraction
of the Spread, if any, specified on the face hereof,
and (y) by the multiplication by the Spread
Multiplier, if any, specified on the face hereof;
provided, however, that, if fewer than three brokers
selected as provided above by the Calculation Agent
are quoting as mentioned in this sentence, the
interest rate hereon for such Interest Reset Date
will be the interest rate hereon in effect on such
Federal Funds Interest Determination Date (or if the
Initial Interest Rate is then in effect, the Federal
Funds Rate will be the Initial Interest Rate and
will not be adjusted by any Spread or Spread
Multiplier).
Notwithstanding the foregoing the interest rate
hereon shall not be greater than the Maximum Interest
Rate, if any, specified on the face hereof or less than
the Minimum Interest Rate, if any, specified on the face
hereof. In addition, the interest rate hereon will in no
event be higher than the maximum rate permitted by New
York law, as the same may be modified by United States
law of general application.
The Company will at all times appoint and
maintain a banking institution that is not an Affiliate
of the Company as Calculation Agent hereunder. The
Company has initially appointed Citibank, N.A. as such
Calculation Agent and will give prompt written notice to
the Trustee of any change in such appointment. The
Company will cause the Calculation Agent to calculate the
interest rate on this Security for any Interest Reset
Date in accordance with the foregoing on or before the
Calculation Date pertaining to the related Interest
Determination Date. Except as otherwise provided herein,
all percentages resulting from any calculations will be
rounded, if necessary, to the nearest one hundred-
thousandth of a percentage point with five one-millionths
of a percentage point rounded upward (e.g., 9.876545% (or
.09876545) being rounded to 9.87655% (or .0987655)), and
all U.S. dollar amounts used in or resulting from such
calculations will be rounded to the nearest cent (with
one-half cent being rounded upwards). The "Calculation
Date," if applicable, pertaining to any Interest
Determination Date will be the earlier of (i) the tenth
calendar day after such Interest Determination Date, or,
if such day is not a Business Day, the next succeeding
Business Day or (ii) the Business Day immediately
preceding the applicable Interest Payment Date or the
Stated Maturity, redemption date or repayment date, as
the case may be. The Calculation Agent's determination
of any interest rate will be final and binding in the
absence of manifest error.
Upon the request of the Holder of this
Security, the Calculation Agent will provide to such
Holder the interest rate hereon then in effect and, if
determined, the interest rate hereon which will become
effective on the next Interest Reset Date.
The Interest Determination Date pertaining to
an Interest Reset Date if the rate of interest hereon
shall be determined in accordance with the provisions
under the headings above entitled "Commercial Paper Rate"
(the "Commercial Paper Interest Determination Date"),
"Prime Rate" (the "Prime Rate Interest Determination
Date"), "CD Rate" (the "CD Rate Interest Determination
Date"), "CMT Rate" (the "CMT Rate Interest Determination
Date") and "Federal Funds Rate" (the "Federal Funds Rate
Interest Determination Date") will be the second Market
Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date
if the rate of interest hereon shall be determined in
accordance with the provisions under the heading above
entitled "LIBOR" (the "LIBOR Interest Determination
Date") will be the second London Business Day preceding
such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date if the rate of
interest hereon shall be determined in accordance with
the provisions under the heading above entitled "Treasury
Rate" (the "Treasury Interest Determination Date") will
be the day of the week in which such Interest Reset Date
falls (which will be the day on which Treasury bills
would normally be auctioned). If, as the result of a
legal holiday, an auction is held on the preceding
Friday, such Friday will be the Treasury Interest
Determination Date pertaining to the Interest Reset Date
occurring in the next succeeding week. If an auction
date shall fall on any Interest Reset Date for a Treasury
Rate Security, then such Interest Reset Date shall
instead be the first Market Day immediately following
such auction date.
Payments of interest hereon with respect to any
Interest Payment Date will equal the amount of interest
accrued from and including the immediately preceding
Interest Payment Date in respect of which interest has
been paid or duly made available for payment (or from and
including the Original Issue Date, if no interest has
been paid or duly made available for payment) to but
excluding the applicable Interest Payment Date or the
Stated Maturity, as the case may be.
Accrued interest hereon from (and including)
the Original Issue Date or from (and including) the last
date to which interest has been paid or duly provided for
is calculated by multiplying the principal amount of this
Security by an accrued interest factor. Such accrued
interest factor is computed by adding the interest factor
calculated for each day from (and including) the Original
Issue Date, or from (and including) the last date to
which interest has been paid or duly provided for, to but
excluding the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal)
for each such day is computed by dividing the interest
rate (expressed as a decimal rounded to the nearest one-
hundred thousandth, as herein before specified)
applicable to such day by 360 or, if the Interest Rate
Basis for this Security is the Treasury Rate or CMT Rate,
by the actual number of days in the year.
This Security may be subject to repayment at
the option of the Holder prior to the Stated Maturity
specified on the face of this Security on the Repayment
Date(s), if any, specified on the face of this Security.
If no Repayment Dates are specified on the face of this
Security, this Security may not be so repaid at the
option of the Holder hereof prior to the Stated Maturity.
On any Repayment Date, this Security shall be repayable
in whole or in part in increments of $1,000 or such other
minimum denomination specified on the face hereof
(provided that any remaining principal amount shall be at
least $1,000 or such other minimum denomination) at the
option of the Holder hereof at a repayment price equal to
100% of the principal amount to be repaid (or, if this
Security is an Original Issue Discount Security, such
lesser amount as is provided herein), together with
accrued but unpaid interest hereon to the date of
repayment. For this Security to be repaid in whole or in
part at the option of the Holder hereof, this Security
must be received, together with the form entitled "Option
to Elect Repayment" (set forth below) duly completed, by
the Trustee at its Corporate Trust Office (or such other
address of which the Company shall from time to time
notify the Holders), not more than 60 nor less than 30
days prior to the date of repayment. Exercise of such
repayment option by the Holder hereof shall be
irrevocable. In the event of repayment of this Security
in part only, a new Security for the unpaid portion
hereof shall be issued in the name of the Holder hereof.
If so designated on the face of this Security,
this Security may be redeemed prior to its Stated
Maturity by the Company on any date on or after the
Redemption Commencement Date indicated on the face
hereof. If a Redemption Commencement Date is not
designated on the face hereof, then this Security may not
be redeemed by the Company prior to its Stated Maturity.
If a Redemption Commencement Date is specified
on the face of this Security, this Security may be
redeemed prior to its stated maturity at the option of
the Company in whole or in part in increments of $1,000
or such other minimum denomination specified on the face
hereof (provided that any remaining principal amount of
this Security shall be at least $1,000 or such other
minimum denomination specified on the face hereof) at the
Redemption Price, together with accrued interest to the
Redemption Date, on notice given not more than 60 nor
less than 30 days prior to the Redemption Date. Interest
installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of this
Security, or one or more Predecessor Securities, of
record at the close of business on the relevant Record
Dates referred to on the face hereof, all as provided in
the Indenture. If less than all of the Securities of
this series are to be redeemed, the Securities of this
series to be redeemed shall be selected by the Trustee by
such method as the Trustee shall deem fair and
appropriate. In the event of redemption of this Security
in part only, a new Security for the unredeemed portion
hereof shall be issued in the name of the Holder hereof.
The Company shall mail to each Security Holder
whose Security is to be redeemed in whole or in part a
notice setting forth the portion of such Security to be
redeemed and such notice shall be mailed to such Holder
at his address as it appears in the Security Register.
The amount of the "Make-Whole Premium" in
respect of the principal amount of this Security to be
redeemed will be the excess, if any, of (i) the sum of
the present values, as of the Redemption Date of this
Security, of (A) the respective interest payments
(exclusive of the amount of accrued interest to the
Redemption Date) on this Security that, but for such
redemption, would have been payable on their respective
Interest Payment Dates after such Redemption Date, and
(B) the payment of such principal amount that, but for
such redemption, would have been payable on the Stated
Maturity over (ii) the amount of such principal to be
redeemed. Such present values will be determined in
accordance with generally accepted principles of
financial analysis by discounting the amounts of such
payments of interest and principal from their respective
Stated Maturities to such Redemption Date at a discount
rate equal to the Treasury Yield.
The "Treasury Yield" in respect of this
Security shall be determined as of the date on which
notice of redemption of this Security is sent to the
Holder hereof by reference to the most recent Board of
Governors of the Federal Reserve System "Statistical
Release H.15 (519)" (or any successor publication of the
Federal Reserve System) which has become publicly
available not more than two Business Days prior to such
date (or, if such Statistical Release (or successor
publication) is no longer published or no longer contains
the applicable data, to the most recently published issue
of The Wall Street Journal (Eastern Edition) published
not more than two Business Days prior to such date that
contains such data or, if The Wall Street Journal
(Eastern Edition) is no longer published or no longer
contains such data, to any publicly available source of
similar market data), and shall be the most recent weekly
average yield on actively traded U.S. Treasury Securities
adjusted to a constant maturity equal to the Remaining
Life of this Security and, if applicable, converted to a
bond equivalent yield basis as described below. The
"Remaining Life of this Security" shall equal the number
of years from the Redemption Date to the Stated Maturity
of this Security; provided that if the Remaining Life of
this Security is not equal to the constant maturity of a
U.S. Treasury security for which a weekly average yield
is specified in the applicable source, then the Remaining
Life of this Security shall be rounded to the nearest
one-twelfth of one year and the Treasury Yield shall be
obtained by linear interpolation computed to the fifth
decimal place (one thousandth of a percentage point) and
then rounded to the fourth decimal place (one hundredth
of a percentage point)), after rounding to the nearest
one-twelfth of one year, from the weekly average yields
of (a) the actively traded U.S. Treasury security with a
maturity closest to and less than the Remaining Life of
this Security and (b) the actively traded U.S. Treasury
security with a maturity closest to and greater than the
Remaining Life of this Security, except that if the
Remaining Life of this Security is less than three
months, the weekly average yield on actively traded U.S.
Treasury securities adjusted to a constant maturity of
three months shall be used. The Treasury Yield shall, if
expressed on a yield basis other than that equivalent to
a bond equivalent yield basis, be converted to a bond
equivalent yield basis and shall be computed to the fifth
decimal place (one thousandth of a percentage point) and
then rounded to the fourth decimal place (one hundredth
of a percentage point).
If an Event of Default with respect to the
Securities of this series shall occur and be continuing,
the principal of the Securities of this series (or, in
the case of any Securities of this series that are
Original Issue Discount Securities, an amount of
principal thereof determined in accordance with the
provisions of this Security set out in the next paragraph
(the "Default Amount")) may be declared due and payable
in the manner and with the effect provided in the
Indenture.
If this Security is an Original Issue Discount
Security and if an Event of Default with respect to the
Securities of this series shall have occurred and be
continuing, the Default Amount of principal of this
Security may be declared due and payable in the manner
and with the effect provided in the Indenture. Such
Default Amount shall be equal to the adjusted issue price
as at the first day of the accrual period as determined
under the United States Internal Revenue Code of 1986, as
amended, and the Treasury regulations thereunder (the
"Code"), in which the date of acceleration occurs
increased by the daily portion of the original issue
discount for each day in such accrual period ending on
the date of acceleration, as determined under the Code.
Upon payment (i) of the amount of principal so declared
due and payable and (ii) of interest on any overdue
principal and overdue interest all of the Company's
obligations in respect of the payment of the principal of
and interest, if any, on this Security shall terminate.
The Indenture contains provisions for
defeasance at any time of (i) the entire indebtedness of
this Security or (ii) certain restrictive covenants and
Events of Default with respect to this Security, in each
case upon compliance with certain conditions set forth
therein.
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 at least 66-2/3% in principal amount of the
Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions
permitting the Holders of specified percentages in
principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all
Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their
consequences. The principal amount of an Original Issue
Discount Security or a Security denominated in a
Specified Currency other than U.S. dollars that shall be
deemed to be Outstanding for purposes of the foregoing
shall be determined as provided in the Indenture. 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
or Securities 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.
As provided in and subject to the provisions of
the Indenture, the Holder of this Security shall not have
the right to institute any proceeding with respect to the
Indenture or for the appointment of a receiver or trustee
or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of
a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than
25% in principal amount of the Securities of this series
at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee
reasonable indemnity, and the Trustee shall not have
received from the Holders of a majority in principal
amount of Securities of this series at the time
Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding,
for 60 days after receipt of such notice, request and
offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due
dates expressed herein.
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, places and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to
certain limitations (including, in the case of any Global
Security, certain additional 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 the Place of Payment, 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 and of like tenor, 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
(i) if denominated in U.S. dollars, $1,000 and integral
multiples thereof or (ii) if denominated in a Specified
Currency other than U.S. dollars, the equivalent amount
of such Specified Currency, at the noon buying rate in
The City of New York for cable transfers for such
Specified Currency (the "Exchange Rate") on or prior to
the sixth Business Day in The City of New York and in the
country issuing such currency (or, for ECUs, Brussels)
next preceding the Original Issue Date, to U.S. $1,000
(rounded to the nearest 1,000 units of such Specified
Currency) and any greater amount that is an integral
multiple of such amount unless otherwise specified on the
face hereof. As provided in the Indenture and subject to
certain limitations (including, in the case of any Global
Security, certain additional limitations) therein set
forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this
series and of like tenor 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.
THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
All terms used in this Security that are
otherwise not defined herein but are defined in the
Indenture shall have the meanings assigned to them in the
Indenture.
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of the within Security, shall be
construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in
common
UNIF GIFT MIN ACT - __________Custodian______
(Cust) (Minor)
under Uniform Gifts to Minors Act
-----------------------------------
(State)
Additional abbreviations may also be used
though not in the above list.
---------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby
sell(s), assign(s) and transfer(s) unto ________________
________________________________________________________
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
____________________________
/___________________________/
________________________________________________________
________________________________________________________
(Please Print or Typewrite Name and Address,
Including Postal Zip Code, of Assignee)
________________________________________________________
the within Security and all rights thereunder, and hereby
irrevocably constitutes and appoints ____________________
---------------------------------------------------------
to transfer said Security on the books of the Company,
with full power of substitution in the premises.
If less than the entire principal amount of the
within Security is to be sold, transferred or assigned,
specify the portion thereof which the Holder elects to
have sold, transferred or assigned: __________; and
specify the denomination or denominations (which shall
not be less than the minimum-authorized denomination) of
the Securities to be issued to the Holder for the portion
of the within Security not being sold, transferred or
assigned (in the absence of any such specification, one
such Security will be issued for the portion not being
sold, transferred or assigned):________.
Dated:___________________
Signature Guaranteed
NOTICE: Signature must be NOTICE: The signature of
guaranteed by a member firm this assignment must
of the New York Stock correspond with the
Exchange or a commercial name as written upon the
bank or trust company. face of the within Security
in every particular, without
alteration or enlargement or
any change whatever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and
instructs the Company to repay the within Security (or
portion thereof specified below) pursuant to its terms at
a price equal to the principal amount thereof, together
with interest to the Repayment Date, to the undersigned
at
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Please print or typewrite name and address of
the undersigned)
If less than the entire principal amount of the
within Security is to be repaid, specify the portion
thereof which the Holder elects to have repaid: --------;
and specify the denomination or denominations (which
shall not be less than the minimum authorized
denomination) of the Securities to be issued to the
Holder for the portion of the within Security not being
repaid (in the absence of any such specification, one
such Security will be issued for the portion not being
repaid): -----------.
Dated:----------------- ---------------------------
NOTICE: The signature on
this Option to Elect
Payment must correspond
with the name as written
upon the face of the within
Security in every
particular, without
alteration or enlargement
or any change whatever.
SIGNATURE GUARANTEED
Exhibit 5(a)
October 20, 1997
The Mead Corporation
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
Ladies and Gentlemen:
I am Associate General Counsel and Assistant
Secretary of The Mead Corporation, an Ohio corporation
(the "Company"), and, as such, I have acted as counsel to
the Company in connection with the Distribution
Agreement, dated October 20, 1997 (the "Distribution
Agreement"), among the Company and Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(each, an "Agent" and collectively, the "Agents"),
relating to the sale by the Company through the Agents
from time to time of up to $154,000,000 aggregate
offering price of the Company's Medium-Term Notes, Series
A Due Nine Months to Thirty Years From Date of Issue (the
"Notes"). The Notes are to be issued under the
Indenture, dated as of October 20, 1997, between the
Company and Citibank, N.A., as Trustee (the "Trustee"),
and as supplemented by the Officers' Certificate, dated
October 20, 1997 (the "Officers' Certificate"),
establishing the terms of the Notes (such Indenture, as
so supplemented, being hereinafter referred to as the
"Indenture").
This opinion is delivered in accordance with
the requirements of Items 601(b)(5) of Regulation S-K
under the Securities Act of 1933, as amended (the
"Securities Act").
I have examined and am familiar with originals
or copies of such documents, corporate records and other
instruments as I have deemed necessary or appropriate in
connection with this opinion, including (i) the
registration statement on Form S-3 (File No. 333-16135)
relating to debt securities of the Company with an
aggregate offering price of $850,000,000 filed with the
Securities and Exchange Commission (the "Commission") on
November 14, 1996 under the Securities Act, and Amendment
No. 1 thereto filed January 10, 1997 (such registration
statement, as so amended as of its effective date and
including all information incorporated by reference
therein, being hereinafter referred to as the
"Registration Statement"), in accordance with procedures
of the Commission permitting a delayed or continuous
offering of securities pursuant to the Registration
Statement; (ii) the Prospectus, dated January 22, 1997,
and the Prospectus Supplement relating to the Notes,
dated October 20, 1997, in the respective forms thereof
filed with the Commission pursuant to Rule 424(b) of the
General Rules and Regulations promulgated under the
Securities Act; (iii) an executed copy of the Indenture;
(iv) the forms of the Fixed Rate Notes and the Floating
Rate Notes (as such terms are defined in the Prospectus
Supplement); (v) an executed copy of the Distribution
Agreement; (vi) the form of the Terms Agreement attached
as Annex I to the Distribution Agreement; (vii) the
Administrative Procedure attached as Annex II to the
Distribution Agreement (the "Administrative Procedure");
(viii) the Articles of Incorporation of the Corporation,
as amended and presently in effect; (ix) the Regulations
of the Corporation, as presently in effect; (x)
resolutions of the Board of Directors of the Company (the
"Board"); and (xi) an executed copy of the Officers'
Certificate.
In my examination, I have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to me as originals, the conformity to original documents
of all documents submitted to me as certified, conformed
or photostatic copies and the authenticity of the
originals of such latter documents. In making my
examination of documents executed or to be executed by
parties other than the Company, I have assumed that the
parties thereto had or will have the power, corporate or
other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by
all requisite action, corporate or other, and execution
and delivery by such parties of such documents and the
validity and binding effect thereof on such parties. I
have assumed that the Indenture has been duly authorized,
executed and delivered by the Trustee and that any Notes
that may be issued will be manually signed or
countersigned, as the case may be, by duly authorized
officers of the Trustee.
I am a member of the Bar in the State of Ohio
and I do not express any opinion as to the laws of any
other jurisdiction other than the laws of the United
States to the extent referred to specifically herein.
Insofar as the opinions set forth below relate to the
Indenture and the Notes as valid, binding and enforceable
obligations of the Company, I have relied solely upon an
opinion letter of even date herewith from Skadden, Arps,
Slate, Meagher & Flom LLP, New York, New York, with
respect to all matters of New York law related thereto.
This opinion is limited to the laws, including the rules
and regulations as in effect on the date hereof.
Based upon and subject to the foregoing, I am
of the opinion that:
1. The Company has been duly incorporated and
is validly existing as a corporation in good standing
under the laws of the State of Ohio.
2. The issuance and sale of the Notes by the
Company as contemplated by the Distribution Agreement
have been duly authorized by the Company; the Notes, when
the terms thereof have been fixed by an authorized
representative of the Company in conformity with the
Indenture and the resolutions of the Board, and when
issued by the Company in accordance with the
Administrative Procedure and the Officers' Certificate,
and duly executed and authenticated in accordance with
the terms of the Indenture, and delivered to and paid for
in accordance with the terms of the Distribution
Agreement, will be duly authorized, executed and
delivered and will constitute valid and binding
obligations of the Company enforceable in accordance with
their terms and entitled to the benefits of the
Indenture, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles
of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (b) that
I express no opinion as to Section 515 of the Indenture,
(c) as to any requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a
judgment denominated other than in U.S. dollars in
respect of such claim) be converted into U.S. dollars at
a rate of exchange prevailing on a date determined
pursuant to applicable law and (d) to the extent of any
governmental authority to limit, delay or prohibit the
making of payments in foreign currency, currency units or
composite currencies, outside the United States. In
rendering the opinion set forth in this paragraph 2, I
have, with your approval, assumed that at the time of the
issuance, sale and delivery of each particular Note, the
authorization of the Notes will not have been modified or
rescinded and, with respect to each Note, that such Note
will conform to the forms of the Notes examined by me. I
have, also with your approval, assumed that at the time
of the issuance, sale and delivery of each particular
Note there will not have occurred any change in law
affecting the validity, legally binding character or
enforceability of such Note and that the issuance, sale
and delivery of such Note, all of the terms of such Note
and the performance by the Company of its obligations
thereunder will comply with applicable law and with each
requirement or restriction imposed by any court or
governmental body having jurisdiction over the Company
and will not result in a default under or a breach of any
agreement or instrument then binding upon the Company or
its properties.
3. The Indenture has been duly authorized,
executed and delivered by the Company and is a valid and
binding agreement of the Company, enforceable against the
Company in accordance with its terms, except (a) to the
extent that enforcement thereof may be limited by (i)
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws now or
hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity
(regardless of whether enforceability is considered in a
proceeding at law or in equity), (b) I express no opinion
as to Section 515 of the Indenture; (c) as to any
requirements that a claim with respect to any Notes
denominated other than in U.S. dollars (or a judgment
denominated other than in U.S. dollars in respect of such
claim) be converted into U.S. dollars at a rate of
exchange prevailing on a date determined pursuant to
applicable law and (d) to the extent of any governmental
authority to limit, delay or prohibit the making of
payments in foreign currency, currency units or composite
currencies, outside the United States; and the Indenture
has been qualified under the Trust Indenture Act.
I hereby consent to the filing of this opinion
with the Commission as Exhibit 5(a)to the Company's
Current Report on Form 8-K dated the date hereof. In
giving this consent, I do not thereby admit that I am in
the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the
Commission promulgated thereunder. This opinion is
expressed as of the date hereof unless otherwise
expressly stated, and I disclaim any undertaking to
advise you of any subsequent changes of the facts stated
or assumed herein or any subsequent changes in applicable
law.
Very truly yours,
/s/ David L. Santez
Exhibit 5(b)
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
919 THIRD AVENUE
NEW YORK, NEW YORK 10022-3897
TEL: (212) 735-3000
FAX: (212) 735-2000
October 20, 1997
The Mead Corporation
Mead World Headquarters
Courthouse Plaza Northeast
Dayton, Ohio 45463
Re: The Mead Corporation
Registration Statement on Form S-3
Dear Ladies and Gentlemen:
This opinion is furnished by us as special
counsel for Mead Corporation, an Ohio corporation (the
"Company"), in connection with the Distribution
Agreement, dated October 20, 1997 (the "Distribution
Agreement"), among the Company and Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(each, an "Agent" and collectively, the "Agents"),
relating to the sale by the Company through the Agents
from time to time of up to $154,000,000 aggregate
offering price of the Company's Medium-Term Notes, Series
A Due Nine Months to Thirty Years from Date of Issue (the
"Notes"). The Notes are to be issued under the
Indenture, dated as of October 20, 1997, between the
Company and Citibank, N.A., as trustee (the "Trustee"),
and as supplemented by the Officers' Certificate, dated
October 20, 1997, establishing the terms of the Notes
(such Indenture, as so supplemented, being hereinafter
referred to as the "Indenture").
This opinion is delivered in accordance with
the requirements of Items 601(b)(5) of Regulation S-K
under the Securities Act of 1933, as amended (the
"Securities Act").
We have examined (i) the registration
statement, on Form S-3 (File No. 333-16135) relating to
debt securities of the Company with an aggregate offering
price of $850,000,000 filed with the Securities and
Exchange Commission (the "Commission") on November 14,
1996 under the Securities Act, and Amendment No. 1
thereto filed on January 10, 1997 (such registration
statement, as so amended as of its effective date and
including all information incorporated by reference
therein as of such effective date, being hereinafter
referred to as the "Registration Statement"), in
accordance with procedures of the Commission permitting a
delayed or continuous offering of securities pursuant to
such registration statement; (ii) the order of the
Commission declaring the Registration Statement effective
under the Securities Act at 5:30 p.m. on January 22,
1997; (iii) the Prospectus, dated January 22, 1997 (the
"Base Prospectus"), and the Prospectus Supplement
relating to the Notes, dated October 20, 1997 (the
"Prospectus Supplement"), in the respective forms thereof
filed with the Commission pursuant to Rule 424(b) of the
General Rules and Regulations promulgated under the
Securities Act (such Base Prospectus, as so supplemented
by the Prospectus Supplement, being hereinafter referred
to as the "Prospectus"); (iv) an executed copy of the
Indenture; (v) the forms of the Fixed Rate Notes and the
Floating Rate Notes (as such terms are defined in the
Prospectus Supplement); (vi) an executed copy of the
Distribution Agreement; (vii) the form of the Terms
Agreement attached as Annex I to the Distribution
Agreement; and (viii) the Administrative Procedure
attached as Annex II to the Distribution Agreement (the
Administrative Procedure). We also have examined
originals or copies, certified or otherwise identified to
our satisfaction, of all such records of the Company and
others, and such other documents, certificates and
corporate or other records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal
capacity of all natural persons, the genuineness of all
signatures, the authenticity of all documents submitted
to us as originals, the conformity to original documents
of all documents submitted to us as certified or
photostatic or facsimile copies and the authenticity of
the originals of such latter documents. In making our
examination of documents executed or to be executed, we
have assumed that the parties thereto (including the
Company) had the power, corporate or other, to enter into
and perform all obligations thereunder and have also
assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such
parties of such documents and (except to the extent set
forth in paragraphs 1 and 2 below) the validity,
enforceability and binding effect thereof. As to any
facts material to the opinions expressed herein which we
did not independently establish or verify, we have relied
upon oral or written statements and representations of
officers and other representatives of the Company and
others.
Members of our firm are admitted to the bar in
the State of New York, and we do not express any opinion
as to the laws of any other jurisdiction other than the
laws of the United States of America to the extent
referred to specifically herein. We have assumed that
(i) the Company has been duly incorporated and is validly
existing under Ohio law; (ii) the choice of New York law
in the Indenture and is legal and valid under the laws of
Ohio; and (iii) the execution and delivery by the Company
of the Indenture and the Notes (collectively, the
"Operative Documents") and the performance by the Company
of its obligations thereunder do not and will not
violate, conflict with or constitute a default under (A)
any agreement or instrument to which the Company or its
property is subject (except that we do not make the
assumption set forth in this clause (A) with respect to
the Operative Documents), (B) any law, rule or regulation
to which the Company is subject (except that we do not
make the assumption set forth in this clause (B) with
respect to those laws, rules and regulations (other than
securities and antifraud laws) of the State of New York
and the United States of America which, in our
experience, are normally applicable to transactions of
the type contemplated by the Operative Documents, but
without our having made any special investigation with
respect to other laws, rules or regulations), (C) any
judicial or regulatory order or decree of any
governmental authority or (D) any consent, approval,
license, authorization or validation of, or filing,
recording or registration with, any governmental
authority (except that we do not make the assumption set
forth in this clause (D) with respect to the Registration
Statement or the Prospectus).
Based upon and subject to the limitations,
qualifications, exceptions and assumptions set forth
herein, we are of the opinion that:
1. The Notes, when the terms thereof have been
fixed by an authorized representative of the Company, in
conformity with the Indenture and when issued by the
Company in accordance with the Administrative Procedure,
and duly executed and authenticated in accordance with
the terms of the Indenture, and delivered to and paid for
in accordance with the terms of the Distribution
Agreement, will be valid and binding obligations of the
Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the
Indenture, except (a) to the extent that enforcement
thereof may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles
of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity), (b) we
express no opinion as to Section 515 of the Indenture,
(c) as to any requirements that a claim with respect to
any Notes denominated other than in U.S. dollars (or a
judgment denominated other than in U.S. dollars in
respect of such claim) be converted into U.S. dollars at
a rate of exchange prevailing on a date determined
pursuant to applicable law and (d) to the extent of any
governmental authority to limit, delay or prohibit the
making of payments in foreign currency, currency units or
composite currencies, outside the United States. In
rendering the opinion set forth in this paragraph 1, we
have, with your approval, assumed that at the time of the
issuance, sale and delivery of each particular Note the
authorization of the Notes will not have been modified or
rescinded and, with respect to each Note, that such Note
will conform to the forms of the Notes examined by us.
We have, also with your approval, assumed that at the
time of issuance, sale and delivery of each particular
Note there will not have occurred any change in law
affecting the validity, legally binding character or
enforceability of such Note and that (a) the issuance,
sale and delivery of such Note, (b) all of the terms of
such Note and (c) the performance by the Company of its
obligations thereunder will, in each case, comply with
applicable law and with each requirement or restriction
imposed by any court or governmental body having
jurisdiction over the Company and will not result in a
default under or a breach of any agreement or instrument
then binding upon the Company or its properties.
2. The Indenture is a valid and binding agreement
of the Company, enforceable against the Company in
accordance with its terms, except (a) to the extent that
enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general
principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in
equity), (b) we express no opinion as to Section 515 of
the Indenture, (c) as to any requirements that a claim
with respect to any Notes denominated other than in U.S.
dollars (or a judgment denominated other than in U.S.
dollars in respect of such claim) be converted into U.S.
dollars at a rate of exchange prevailing on a date
determined pursuant to applicable law and (d)
governmental authority to limit, delay or prohibit the
making of payments in foreign currency, currency units or
composite currencies, outside the United States.
David L. Santez, Assistant Secretary and
Associate General Counsel of the Company, is permitted to
rely upon this opinion for the purpose of delivering his
opinion to the Company in its capacity as counsel to the
Company in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the Securities Act. We
hereby consent to the filing of this opinion with the
Commission as Exhibit 5(b) to the Company's Current
Report on Form 8-K dated the date hereof. We also
consent to the reference to us under the heading
"Validity of Securities" in the Registration Statement.
In giving this consent, we do not thereby admit that we
are in the category of persons whose consent is required
under Section 7 of the Securities Act or the Rules and
Regulations of the Commission promulgated thereunder.
This opinion is expressed as of the date hereof unless
otherwise expressly stated, and we disclaim any
undertaking to advise you of any subsequent changes of
the facts stated or assumed herein or any subsequent
changes in applicable law.
Very truly yours,
/s/ SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
