Exhibit (4)(s)
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AMENDED AND RESTATED TRUST AGREEMENT
WEYERHAEUSER CAPITAL TRUST I
Dated as of [Date]
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1
Exhibit (4)(s)
TABLE OF CONTENTS
Page
ARTICLE I INTERPRETATION AND DEFINITIONS......................................................................... 7
SECTION 1.1 Definitions..................................................................................... 7
ARTICLE II TRUST INDENTURE ACT................................................................................... 10
SECTION 2.1 Trust Indenture Act; Application................................................................ 10
SECTION 2.2 Lists of Holders of Securities.................................................................. 10
SECTION 2.3 Reports by the Property Trustee................................................................. 10
SECTION 2.4 Periodic Reports to Property Trustee............................................................ 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent................................................ 10
SECTION 2.6 Events of Default; Waiver....................................................................... 10
SECTION 2.7 Event of Default; Notice........................................................................ 10
ARTICLE III ORGANIZATION......................................................................................... 10
SECTION 3.1 Name and Organization........................................................................... 10
SECTION 3.2 Office.......................................................................................... 10
SECTION 3.3 Purpose......................................................................................... 10
SECTION 3.4 Authority....................................................................................... 10
SECTION 3.5 Title to Property of the Trust.................................................................. 10
SECTION 3.6 Powers and Duties of the Regular Trustees....................................................... 10
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees............................................ 10
SECTION 3.8 Powers and Duties of the Property Trustee....................................................... 10
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee..................................... 10
SECTION 3.10 Certain Rights of Property Trustee............................................................. 10
SECTION 3.11 Delaware Trustee............................................................................... 10
SECTION 3.12 Execution of Documents......................................................................... 10
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities......................................... 10
SECTION 3.14 Duration of Trust.............................................................................. 10
SECTION 3.15 Mergers........................................................................................ 10
ARTICLE IV SPONSOR............................................................................................... 10
SECTION 4.1 Responsibilities of the Sponsor................................................................. 10
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees........................................... 10
SECTION 4.3 Compensation of the Trustees.................................................................... 10
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Exhibit (4)(s)
ARTICLE V TRUST COMMON SECURITIES HOLDER......................................................................... 10
SECTION 5.1 Sponsor's Purchase of Common Securities......................................................... 10
SECTION 5.2 Covenants of the Common Securities Holder....................................................... 10
ARTICLE VI TRUSTEES.............................................................................................. 10
SECTION 6.1 Number of Trustees.............................................................................. 10
SECTION 6.2 Delaware Trustee; Eligibility................................................................... 10
SECTION 6.3 Property Trustee; Eligibility................................................................... 10
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee Generally............................... 10
SECTION 6.5 Initial Regular Trustees........................................................................ 10
SECTION 6.6 Appointment, Removal and Resignation of Trustees................................................ 10
SECTION 6.7 Vacancies among Trustees........................................................................ 10
SECTION 6.8 Effect of Vacancies............................................................................. 10
SECTION 6.9 Meetings........................................................................................ 10
SECTION 6.10 Delegation of Power............................................................................ 10
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.................................... 10
ARTICLE VII ISSUANCE OF SECURITIES............................................................................... 10
SECTION 7.1 General Provisions Regarding Securities......................................................... 10
SECTION 7.2 Distributions................................................................................... 10
SECTION 7.3 Redemption of Securities........................................................................ 10
SECTION 7.4 Redemption Procedures........................................................................... 10
SECTION 7.5 Voting Rights of Preferred Securities........................................................... 10
SECTION 7.6 Voting Rights of Common Securities.............................................................. 10
SECTION 7.7 Registrar, Paying Agent and Conversion Agent.................................................... 10
SECTION 7.8 Listing......................................................................................... 10
SECTION 7.9 Transfer of Securities.......................................................................... 10
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.............................................. 10
SECTION 7.11 Deemed Security Holders........................................................................ 10
SECTION 7.12 Global Securities.............................................................................. 10
ARTICLE VIII DISSOLUTION AND TERMINATION OF TRUST................................................................ 10
SECTION 8.1 Dissolution and Termination of Trust............................................................ 10
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.......................................... 10
ARTICLE IX LIMITATION OF LIABILITY OF HOLDERS OF SECURITIES, TRUSTEES OR OTHERS.................................. 10
SECTION 9.1 Liability....................................................................................... 10
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Exhibit (4)(s)
SECTION 9.2 Exculpation..................................................................................... 10
SECTION 9.3 Fiduciary Duty.................................................................................. 10
SECTION 9.4 Indemnification................................................................................. 10
SECTION 9.5 Outside Businesses.............................................................................. 10
ARTICLE X ACCOUNTING............................................................................................. 10
SECTION 10.1 Fiscal Year.................................................................................... 10
SECTION 10.2 Certain Accounting Matters..................................................................... 10
SECTION 10.3 Banking........................................................................................ 10
SECTION 10.4 Withholding.................................................................................... 10
ARTICLE XI AMENDMENTS AND MEETINGS............................................................................... 10
SECTION 11.1 Amendments..................................................................................... 10
SECTION 11.2 Meetings of the Holders of Securities; Action by Written Consent............................... 10
ARTICLE XII REPRESENTATIONS OF PROPERTY TRUSTEE AND DELAWARE TRUSTEE............................................ 10
SECTION 12.1 Representations and Warranties of Property Trustee............................................. 10
SECTION 12.2 Representations and Warranties of Delaware Trustee............................................. 10
ARTICLE XIII MISCELLANEOUS....................................................................................... 10
SECTION 13.1 Notices........................................................................................ 10
SECTION 13.2 Governing Law.................................................................................. 10
SECTION 13.3 Intention of the Parties....................................................................... 10
SECTION 13.4 Headings....................................................................................... 10
SECTION 13.5 Successors and Assigns......................................................................... 10
SECTION 13.6 Partial Enforceability......................................................................... 10
SECTION 13.7 Counterparts................................................................................... 10
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Exhibit (4)(s)
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Trust Agreement
Section of Trust Indenture Act of Section of 1939, as amended Agreement
310(a) .................................... 6.3
310(b) .................................... 6.3(c); 6.3(d)
310(c) .................................... Inapplicable
311(a) .................................... 2.2(b)
311(b) .................................... 2.2(b)
311(c) .................................... Inapplicable
312(a) .................................... 2.2(a)
312(b) .................................... 2.2(b)
312(c) .................................... Inapplicable
313(a) .................................... 2.3
313(b) .................................... 2.3
313(c) .................................... 2.3
313(d) .................................... 2.3
314(a) .................................... 2.4
314(b) .................................... Inapplicable
314(c) .................................... 2.5
314(d) .................................... Inapplicable
314(e) .................................... 2.5
314(f) .................................... Inapplicable
315(a) .................................... 3.9(b); 3.10(a)
315(b) .................................... 2.7(a)
315(c) .................................... 3.9(a)
315(d) .................................... 3.9(b)
316(a) .................................... 2.6; 7.5(b); 7.6(c)
316(b) .................................... Inapplicable
316(c) .................................... Inapplicable
317(a) .................................... 3.16
317(b) .................................... Inapplicable
318(a) .................................... 2.1(c)
* This Cross-Reference Table does not constitute part of the Trust Agreement and
shall not affect the interpretation of any of its terms or provisions.
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Exhibit (4)(s)
AMENDED AND RESTATED
TRUST AGREEMENT
OF
WEYERHAEUSER CAPITAL TRUST I
[Date]
AMENDED AND RESTATED TRUST AGREEMENT("Trust Agreement") dated and
effective as of [Date], by the undersigned trustees (together with all other
Persons from time to time duly appointed and serving as trustees in accordance
with the provisions of this Trust Agreement, the "Trustees"), Weyerhaeuser
Company, a Washington corporation, as trust sponsor (the "Sponsor"), and by the
holders, from time to time, of undivided beneficial interests in the Trust
issued pursuant to this Trust Agreement;
WHEREAS, the Trustees and the Sponsor established a trust (the "Trust")
under the Delaware Business Trust Act pursuant to a Trust Agreement dated as of
[Date], (the "Original Trust Agreement") and a Certificate of Trust filed with
the Secretary of State of Delaware on [Date], for the sole purpose of issuing
and selling certain securities representing undivided beneficial interests in
the assets of the Trust and investing the proceeds thereof in certain Debentures
issued by the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have been
issued;
WHEREAS, all of the Trustees and the Sponsor, by this Trust Agreement,
amend and restate each and every term and provision of the Original Trust
Agreement; and
NOW, THEREFORE, it being the intention of the parties hereto to
continue the Trust as a business trust under the Business Trust Act and that
this Trust Agreement constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Trust Agreement.
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Exhibit (4)(s)
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Trust Agreement but not defined in
the preamble above have the respective meanings assigned to them in this Section
1.1;
(b) a term defined anywhere in this Trust Agreement has the same
meaning throughout;
(c) all references to "the Trust Agreement" or "this Trust Agreement"
are to this Trust Agreement as modified, supplemented or amended from time to
time;
(d) all references in this Trust Agreement to Articles and Sections and
Exhibits are to Articles and Sections of and Exhibits to this Trust Agreement
unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Trust Agreement unless otherwise defined in this Trust Agreement or
unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act or any successor rule thereunder.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Authorized Officer" of a Person means any Person that is authorized to
bind such Person.
"Beneficial Owners" means, for Preferred Securities represented by a
Global Security, the Person who acquires an interest in the Preferred Securities
which is reflected on the records of the Depositary through the Depositary
Participants.
"Business Day" means any day other than a day on which banking
institutions in New York, New York are authorized or required by law to close.
"Business Trust Act" means Chapter 38 of Title 12 of the Delaware Code,
12 Del. Code ss.3801 et seq., as it may be amended from time to time, or any
successor legislation.
"Certificate" means a Common Security Certificate or a Preferred
Security Certificate.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act. The Depository Trust
Company will be the initial Clearing Agency.
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Exhibit (4)(s)
"Closing Date" means [Date].
"Code" means the Internal Revenue Code of 1986 as amended from time to
time, or any successor legislation. A reference to a specific section of the
Code refers not only to such specific section but also to any corresponding
provision of any federal tax statute enacted after the date of this Trust
Agreement, as such specific section or corresponding provisions is in effect on
the date of application of the provisions of this Trust Agreement containing
such reference.
"Commission" means the Securities and Exchange Commission or any
successor thereto.
"Common Securities Holder" means Weyerhaeuser Company or any successor
thereto, in its capacity as purchase and holder of all of the Common Securities
issued by the Trust.
"Common Securities" has the meaning set forth in Section 7.1(a).
"Common Securities Guarantee" means the guarantee agreement to be dated
as of [Date], of the Sponsor in respect of the Common Securities.
"Common Security Certificate" means a definitive certificate in fully
registered form representing a Common Security, substantially in the form of
Exhibit B hereto.
"Covered Person" means: (a) any officer, director, shareholder,
partner, member, representative, employee or agent of (i) the Trust or (ii) the
Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means Weyerhaeuser Company or any successor thereto
under the Indenture in its capacity as issuer of the Securities.
"Debenture Issuer Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners. Employees, representatives or agents of any
Regular Trustee or any Affiliate thereof; or (d) any officer, employee or agent
of the Trust or its Affiliates.
"Debentures" means the series of Debentures to be issued by the
Debenture Issuer under the Indenture to be held by the Property Trustee.
"Delaware Trustee" has the meaning set forth in Section 5.2.
"Depositary" means The Depository Trust Company, the initial Clearing
Agency.
"Distribution" means a distribution payable to Holders of Securities in
accordance with Section 6.1.
"Event of Default" in respect of the Securities means an Event of
Default (as defined in the Indenture) has occurred and is continuing in respect
of the Debentures.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
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Exhibit (4)(s)
"Fiduciary Indemnified Person" has the meaning set forth in Section
4.2.
"Global Security" means a fully registered, global Preferred Security
Certificate.
"Guarantee" means the Guarantee Agreement dated the date hereof, of the
Sponsor in respect of the Securities.
"Holder" means a Person in whose name a Certificate representing a
Security is registered, such Person being a beneficial owner within the meaning
of the Business Trust Act.
"Indemnified Person" means a Debenture Issuer Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Indenture dated as of [Date], between the
Debenture Issuer and [Trustee], as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued.
"Indenture Event of Default" has the meaning given to the term "Event
of Default" in the Indenture.
"Investment Company" means an investment company as defined in the
Investment Company Act. "Investment Company Act" means the U.S. Investment
Company Act of 1940, as amended from time to time, or any successor legislation.
"Investment Company Event" means the receipt by the Sponsor and the
Trust of an opinion of an independent counsel experienced in matters relating to
investment companies, to the effect that, as a result of the occurrence of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority (a "Change in 1940 Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an "investment company" that is required
to be registered under the Investment Company Act, which Change in 1940 Act Law
becomes effective on or after the Closing Date.
"Legal Action" has the meaning set forth in Section 3.6(g).
"List of Holders" has the meaning specified in Section 2.2(a).
"Majority in Liquidation Amount" means, except as provided in the terms
of the Preferred Securities and by the Trust Indenture Act, Holder(s) of
outstanding Securities voting together as a single class or, as the context may
require, Holders of outstanding Preferred Securities or Holders of outstanding
Common Securities voting separately as a class, who are the record owners of
more than 50% of the aggregate liquidation amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class.
"New York Stock Exchange" means the New York Stock Exchange, Inc. or
any successor thereto.
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Exhibit (4)(s)
"Officers' Certificate" means, with respect to any Person, a
certificate signed on behalf of such Person by two Authorized Officers of such
Person. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition relating
thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer on behalf of such Person
in rendering the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
officer acting on behalf of such Person, such condition or covenant has been
complied with; provided, that the term "Officers' Certificate," when used with
reference to the Regular Trustees who are natural persons shall mean a
certificate signed by two or more of the Regular Trustees which otherwise
satisfies the foregoing requirements.
"Participant" means a broker, dealer, bank, other financial institution
or other Person for whom from time to time a Clearing Agency effects book-entry
transfers and pledges or securities deposited with the Clearing Agency.
"Paying Agent" has the meaning specified in Section 3.8(h).
"Payment Amount" has the meaning specified in Section 7.2(c).
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities Guarantee" means the guarantee agreement to be
dated as of [Date], of the Sponsor in respect of the Preferred Securities.
"Preferred Securities" has the meaning specified in Section 7.1(a).
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Depositary, or on the books of a
Person maintaining an account with such Depositary (directly as a Participant or
as an indirect participant, in each case in accordance with the rules of such
Depositary).
"Preferred Security Certificate" means a definitive certificate in
fully registered form representing a Preferred Security, substantially in form
of Exhibit A.
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Exhibit (4)(s)
"Property Account" has the meaning set forth in Section 3.8(c).
"Pro Rata" means pro rata to each Holder of Securities according to the
aggregate liquidation amount of the Securities held by the relevant Holder in
relation to the aggregate liquidation amount of all Securities outstanding.
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 6.3.
"Quorum" means a majority of the Regular Trustees or, if there are only
two Regular Trustees, both of them.
"Redemption Price" means the amount for which the Securities will be
redeemed, which amount will equal (i) the redemption price paid by the Debenture
Issuer to repay or redeem, in whole or in part, the Debentures held by the Trust
which shall include accumulated and unpaid Distributions on such Securities
through the date of their redemption or (ii) such lesser amount as will be
received by the Trust in respect of the Debentures so repaid or redeemed.
"Register" has the meaning set forth in Section 7.4.
"Regular Trustee" means any Trustee other than the Property Trustee and
the Delaware Trustee.
"Related Party" means, with respect to the Sponsor, any direct or
indirect wholly owned subsidiary of the Sponsor or any other Person that owns,
directly or indirectly, 100% of the outstanding voting securities of the
Sponsor.
"Responsible Officer" means, with respect to the Property Trustee, any
vice-president, any assistant vice-president, the treasurer, any assistant
treasurer, any trust officer or assistant trust officer or any other officer in
the corporate trust department of the Property Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of that officer's knowledge of
and familiarity with the particular subject.
"Securities" means the Common Securities and the Preferred Securities.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to the Global
Preferred Security and any other Preferred Security in global form.
"Sponsor" means Weyerhaeuser Company, a Washington corporation, or any
successor entity in a merger, consolidation or amalgamation, in its capacity as
Sponsor of the Trust.
"Successor Delaware Trustee" has the meaning set forth in Section
5.6(c).
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Exhibit (4)(s)
"Successor Entity" has the meaning specified in Section 3.15(b)(i).
"Successor Property Trustee" has the meaning set forth in Section
5.6(b).
"Successor Security" has the meaning specified in Section
3.15(b)(i)(b).
"Super Majority" has the meaning set forth in Section 2.6(a)(ii).
"Tax Event" means the receipt by the Sponsor or the Trust of an opinion
of tax counsel (which may be the Sponsor's counsel or counsel of an Affiliate
but not an employee and which must be reasonably acceptable to the Property
Trustee) experienced in such matters to the effect that, as a result of (a) any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any court,
governmental agency or regulatory authority interpreting or applying such laws
or regulations, there is more than an insubstantial risk that (i) the Trust is,
or will be within 90 days of the date of such opinion, subject to United States
federal income tax with respect to income accrued or received on the Debentures,
(ii) interest payable by the Debenture Issuer on the Debentures is not, or will
not within 90 days of the date of such opinion, be deductible, in whole or in
part, by the Debenture Issuer for United States federal income tax purposes, or
(iii) the Trust is, or will be within 90 days of the date of such opinion,
subject to more than a de minimis amount of other taxes, duties or other
governmental charges.
"10% in Liquidation Amount" means, except as provided in the terms of
the Preferred Securities or by the Trust Indenture Act, Holders of outstanding
Securities voting together as a single class or, as the context may require,
Holders of outstanding Preferred Securities or Holders of outstanding Common
Securities, voting separately as a class, representing 10% of the aggregate
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all outstanding
Securities of the relevant class.
"Treasury Regulations" means the income tax regulations, including
temporary and proposed regulations, promulgated under the Code by the United
States Treasury, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"Trust" has the meaning specified in the Recitals.
"Trust Indenture Act" means the U.S. Trust Indenture Act of 1939, as
amended.
"Trustee" or "Trustees" means each Person who has signed this Trust
Agreement as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
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Exhibit (4)(s)
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee that is a Trustee
for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this Trust Agreement
conflicts with the duties imposed by Sections 310 to 317, inclusive, of the
Trust Indenture Act, such imposed duties shall control.
(d) The application of the Trust Indenture Act to this Trust Agreement
shall not affect the Trust's classification as a grantor trust for United States
federal income tax purposes.
SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide the Property Trustee (i) except while the Preferred Securities are
represented by one or more Global Securities, at least five Business Days prior
to the date for payment of Distributions, a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the Holders of the
Securities ("List of Holders") as of the record date relating to the payment of
such Distributions, and (ii) at any other time, within 30 days of receipt by the
Trust of a written request from the Property Trustee for a List of Holders as of
a date no more than 15 days before such List of Holders is given to the Property
Trustee; provided, that neither the Sponsor nor the Regular Trustees on behalf
of the Trust shall be obligated to provide such List of Holders at any time the
List of Holders does not differ from the next most recent List of Holders given
to the Property Trustee by the Sponsor and the Regular Trustees on behalf of the
Trust. The Property Trustee shall preserve, in as current a form as is
reasonably practicable, all information contained in Lists of Holders given to
it or which it receives in the capacity as Paying Agent (if acting in such
capacity), provided that the Property Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations under, and
shall be entitled to the benefits of, Sections 311(a), 311(b) and 312(b) of the
Trust Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after ________ of each year (commencing with the year of
the first anniversary of the issuance of the Preferred Securities), the Property
Trustee shall provide to the Holders of the Preferred Securities such reports,
if any, as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust
13
Exhibit (4)(s)
Indenture Act. The Property Trustee shall also comply with the requirements of
Section. 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such documents, reports and information
(if any) as required by Section 314 of the Trust Indenture Act and the
compliance certificate required by Section 314 of the Trust Indenture Act in the
form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with any
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust Indenture Act.
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act may be given in the form of an
Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in Liquidation Amount of Preferred
Securities may, by vote or written consent, on behalf of the Holders of all of
the Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under the Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount the holders of the Debentures (a "Super Majority") to be
waived under the Indenture, the Event of Default under the Trust Agreement may
only be waived by the vote of the Holders of at least the proportion in
liquidation amount of the Preferred Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.6(a) shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of
the Trust Indenture Act is hereby expressly excluded from this Trust Agreement
and the Securities, as permitted by the Trust Indenture Act. Upon such waiver,
any such default shall cease to exist, and any Event of Default with respect to
the Preferred Securities arising therefrom shall be deemed to have been cured,
for every purpose of this Trust Agreement and the Preferred Securities, but no
such waiver shall extend to any subsequent or other default or an Event of
Default with respect to the Preferred Securities or impair any right consequent
thereon. Any waiver by the Holders of the Preferred Securities of an Event of
Default with respect to the Preferred Securities shall also be deemed to
constitute a waiver by the Holders of the Common Securities of any such Event of
Default with respect to the Common Securities for all purposes of this Trust
Agreement without any further act, vote, or consent of the Holders of the Common
Securities.
14
Exhibit (4)(s)
(b) The Holders of a Majority in Liquidation Amount of the Common
Securities may, by vote or written consent, on behalf of the Holders of all of
the Common Securities, waive any past Event of Default with respect to the
Common Securities and its consequences, provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Trust Agreement as provided below in this Section
2.6(b), the Event of Default under the Trust Agreement shall also not
be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under the Trust Agreement as provided
below in this Section 2.6(b), the Event of Default under the Trust
Agreement may only be waived by the vote or written consent of the
Holders of at least the proportion in liquidation amount of the Common
Securities that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding;
provided further, each Holder of Common Securities will be deemed to have waived
any such Event of Default and all Events of Default with respect to the Common
Securities and the consequences thereof until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated, and
until such Events of Default have been so cured, waived or otherwise eliminated,
the Property Trustee will be deemed to be acting solely on behalf of the Holders
of the Preferred Securities and only the Holders of the Preferred Securities
will have the right to direct the Property Trustee in accordance with the terms
of the Securities. The foregoing provisions of this Section 2.6(b) shall be in
lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act and
such Sections 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act are
hereby expressly excluded from this Trust Agreement and the Securities, as
permitted by the Trust Indenture Act. Subject to the foregoing provisions of
this Section 2.6(b), upon such cure, waiver or other elimination, any such
default shall cease to exist and any Event of Default with respect to the Common
Securities arising therefrom shall be deemed to have been cured for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property Trustee
at the direction of the Holders of the Preferred Securities constitutes a waiver
of the corresponding Event of Default under this Trust Agreement. The foregoing
provisions of this Section 2.6(c) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust Indenture Act
is hereby expressly excluded from this Trust Agreement and the Securities, as
permitted by the Trust Indenture Act.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the occurrence of
an Event of Default, transmit by mail, first class postage prepaid, to the
Holders of the Securities, notices of all defaults with respect to the
Securities known to the Property Trustee, unless such defaults
15
Exhibit (4)(s)
have been cured before the giving of such notice (the term "defaults" for the
purposes of this Section 2.7(a) being hereby defined to be an Indenture Event of
Default, not including any periods of grace provided for therein and
irrespective of the giving of any notice provided therein); provided that,
except for a default in the payment of principal of (or premium, if any) or
interest on any of the Debentures or in the payment of any sinking fund
installment established for the Debentures, the Property Trustee shall be
protected in withholding such notice if and so long as a Responsible Officer of
the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of the Securities.
(b) The Property Trustee shall not be deemed to have knowledge of any
default except: (i) a default under Sections 5.1(a), 5.1(b) and 5.1(c) of the
Indenture; or (ii) any default as to which the Property Trustee shall have
received written notice or of which a Responsible Officer of the Property
Trustee charged with administration of this Trust Agreement shall have actual
knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name and Organization.
The Trust is named "Weyerhaeuser Capital Trust I," as such name may be
modified from time to time by the Regular Trustees following written notice to
the Holders of Securities, the Property Trustee and the Delaware Trustee. The
Trust's activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o Weyerhaeuser
Company, 00000 Xxxxxxxxxxxx Xxx Xxxxx, Xxxxxxx Xxx, Xxxxxxxxxx, 00000,
Attention: Vice President and Treasurer. On ten Business Days written notice to
the Holders of Securities, the Regular Trustees may designate another principal
office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to issue and
sell Securities and use the proceeds from such sale to acquire the Debentures,
and (b) except as otherwise limited herein, to engage in only those other
activities necessary, or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, pledge any of its
assets, or otherwise undertake (or permit to be undertaken) any activity that
would cause the Trust not to be classified for United States federal income tax
purposes as a grantor trust.
By acceptance of this trust, the Trustees, the Sponsor, the Holders of
the Securities and the Preferred Securities Beneficial Owners agree to treat the
Trust as a grantor trust for United States federal income tax purposes and not
to take any position which is contrary to such classification.
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Exhibit (4)(s)
SECTION 3.4 Authority.
Subject to the limitations provided in this Trust Agreement and to the
specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee in accordance with its powers shall constitute the act of and
serve to bind the Trust. In dealing with the Trustees acting on behalf of the
Trust, no Person shall be required to inquire into the authority of the Trustees
to bind the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Trustees as set forth in this
Trust Agreement.
(a) Except as expressly set forth in this Trust Agreement and except if
a meeting of the Regular Trustees is called with respect to any matter over
which the Regular Trustees have power to act, any power of the Regular Trustees
may be exercised by, or with the consent of, any one such Regular Trustee.
(b) Except as otherwise required by the Business Trust Act or
applicable law, any Regular Trustee is authorized to execute on behalf of the
Trust any documents which the Regular Trustees have the power and authority to
cause the Trust to execute pursuant to Section 3.6(b).
(c) A Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purposes of signing any documents which the Regular Trustees
have power and authority to cause the Trust to execute pursuant to Section 3.6.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the Debentures and
the Property Account or as otherwise provided in this Trust Agreement, legal
title to all assets of the Trust shall be vested in the Trust. The Holders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial ownership interest in the assets of the Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority, and are hereby authorized and directed, to cause the Trust to engage
in the following activities:
(a) to establish the terms and form of the Preferred Securities and
Common Securities in the manner specified in Section 7.1 and issue and sell the
Preferred Securities and the Common Securities in accordance with this Trust
Agreement; provided, however, that the Trust may issue no more than one series
of Preferred Securities and no more than one series of Common Securities, and,
provided further, that there shall be no interests in the Trust other than the
Securities, and the issuance of Securities shall be limited to a one-time,
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date;
(b) in connection with the issue and sale of the Preferred Securities,
at the direction of the Sponsor, to:
17
Exhibit (4)(s)
(i) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement filed on Form S-3 prepared
by the Sponsor, including any amendments thereto in relation to the Preferred
Securities;
(ii) execute and file any documents prepared by the Sponsor,
or take any acts as determined by the Sponsor to be necessary in order to
qualify or register all or part of the Preferred Securities in any State or
foreign jurisdiction in which the Sponsor has determined to qualify or register
such Preferred Securities for sale;
(iii) execute and file an application, prepared by or on
behalf of the Sponsor, at such time as determined by the Sponsor, to the New
York Stock Exchange or any other national stock exchange or the Nasdaq National
Market for listing or quotation of the Preferred Securities;
(iv) to execute and deliver letters, documents, or instruments
with The Depository Trust Company relating the Preferred Securities;
(v) execute and file with the Commission, at such time as
determined by the Sponsor, a registration statement on Form 8-A, including any
amendments thereto, prepared by the Sponsor relating to the registration of the
Preferred Securities under Section 12(b) of the Exchange Act; and
(vi) execute and enter into the underwriting agreement and
other related agreements providing for the sale of the Preferred Securities;
(c) to acquire the Debentures with the proceeds of the sale of the
Preferred Securities and the Common Securities; provided, however, that the
Regular Trustees shall cause legal title to the Debentures to be held of record
in the name of the Property Trustee for the benefit of the Holders of the
Preferred Securities and the Holders of the Common Securities;
(d) to give the Sponsor and the Property Trustee prompt written notice
of the occurrence of a Tax Event or Investment Company Event; provided that the
Regular Trustees shall consult with the Sponsor and the Property Trustee before
taking or refraining from taking any action in relation to a Tax Event or
Investment Company Event;
(e) to establish a record date with respect to all actions to be taken
hereunder that require a record date be established, including and with respect
to, for the purposes of Section 316(c) of the Trust Indenture Act,
Distributions, voting rights, redemptions and exchanges, and to issue relevant
notices to the Holders of Preferred Securities and Holders of Common Securities
as to such actions and applicable record dates;
(f) to take all actions and perform such duties as may be required of
the Regular Trustees pursuant to the terms of this Trust Agreement and the
Securities;
(g) to bring or defend, pay, collect, compromise, arbitrate, resort to
legal action, or otherwise adjust claims or demands of or against the Trust
("Legal Action"), unless pursuant to Section 3.8(e), the Property Trustee has
the exclusive power to bring such Legal Action;
18
Exhibit (4)(s)
(h) to employ or otherwise engage employees and agents (who may be
designated as officers with titles) and managers, contractors, advisors, and
consultants to conduct only those services that the Regular Trustees have
authority to conduct directly and to pay reasonable compensation for such
services;
(i) to cause the Trust to comply with the Trust's obligations under the
Trust Indenture Act;
(j) to give the certificate required by Section 314(a)(4) of the Trust
Indenture Act to the Property Trustee, which certificate may be executed by any
Regular Trustee;
(k) to incur expenses that are necessary or incidental to carry out any
of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar and
transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the Securities of
any notice received from the Debenture Issuer of its election to defer payments
of interest on the Debentures by extending the interest payment period under the
Indenture as authorized by the Indenture;
(n) to take all action that may be necessary or appropriate for the
preservation and the continuation of the Trust's valid existence, rights,
franchises and privileges as a statutory business trust under the laws of the
State of Delaware and of each other jurisdiction in which such existence is
necessary to protect the limited liability of the Holders of the Preferred
Securities and the Holders of the Common Securities or to enable the Trust to
effect the purposes for which the Trust was created;
(o) to take any action, not inconsistent with this Trust Agreement or
with applicable law, that the Regular Trustees determine in their discretion to
be necessary or desirable in carrying out the purposes and functions of the
Trust as set out in Section 3.3 or the activities of the Trust as set out in
this Section 3.6, including, but not limited to:
(i) causing the Trust not to be deemed to be an Investment
Company required to be registered under the Investment Company Act;
(ii) causing the Trust to be classified for United States
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Debenture Issuer to ensure that the
Debentures will be treated as indebtedness of the Debenture Issuer for
United States federal income tax purposes; and
(p) to take all action necessary to cause all applicable tax returns
and tax information reports that are required to be filed with respect to the
Trust to be duly prepared and filed by the Regular Trustees, on behalf of the
Trust and
19
Exhibit (4)(s)
(q) to execute all documents or instruments, perform all duties and
powers, and do all things for and on behalf of the Trust in all matters
necessary or incidental to the foregoing.
The Regular Trustees shall exercise the powers set forth in this
Section 3.6 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Regular Trustees shall have no power
to, and shall not, take any action that is inconsistent with the purposes and
functions of the Trust set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have none of
the powers or the authority of the Property Trustee set forth in Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this Section
3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and none of the Trustees (including the
Property Trustee) shall cause the Trust to, engage in any activity other than as
required or authorized by this Trust Agreement. In particular, the Trust shall
not and the Trustees (including the Property Trustee) shall cause the Trust not
to:
(i) invest any proceeds received by the Trust from holding the
Debentures, but shall distribute all such proceeds to Holders of
Securities pursuant to the terms of this Trust Agreement and of the
Securities;
(ii) acquire any assets other than as expressly provided
herein;
(iii) possess Trust property for other than a Trust purpose;
(iv) make any loans or incur any indebtedness other than loans
represented by the Debentures;
(v) possess any power or otherwise act in such a way as to
vary the Trust assets;
(vi) possess any power or otherwise act in such a way as to
vary the terms of the Securities in any way whatsoever (except to the
extent expressly authorized in this Trust Agreement or by the terms of
the Securities);
(vii) issue any securities or other evidences of beneficial
ownership of, or beneficial interest in, the Trust other than the
Securities;
(viii) other than as provided in this Trust Agreement or by
the terms of the Securities, (A) direct the time, method and place of
exercising any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past default that is waivable
under the Indenture, (C) exercise any right to rescind or annul any
declaration that the principal of all the Debentures shall be due and
payable, or (D) consent to any amendment, modification or termination
of the Indenture or the Debentures where such consent shall be required
unless the Trust shall have received an
20
Exhibit (4)(s)
opinion of counsel to the effect that such modification will not cause
more than an insubstantial risk that the Trust will be deemed an
Investment Company required to be registered under the Investment
Company Act, or the Trust will be classified as other than a grantor
trust for United States Federal income tax purposes;
(ix) take any action inconsistent with the status of the Trust
as a grantor trust for United States federal income tax purposes;
(x) revoke any action previously authorized or approved by
vote of the Holders of the Preferred Securities.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and held of
record in the name of the Property Trustee for the benefit of the Trust and the
Holders of the Securities. The right, title and interest of the Property Trustee
to the Debentures shall vest automatically in each Person who may hereafter be
appointed as Property Trustee in accordance with Section 6.6. Such vesting and
cessation of title shall be effective whether or not conveyancing documents with
regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title and
interest in the Debentures to the Regular Trustees or to the Delaware Trustee
(if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust account (the "Property Account") in the name of and under the
exclusive control of the Property Trustee on behalf of the Holders of
the Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Account and make payments to the Holders of the
Preferred Securities and Holders of the Common Securities from the
Property Account in accordance with Section 7.2. Funds in the Property
Account shall be held uninvested until disbursed in accordance with
this Trust Agreement;
(ii) engage in such ministerial activities as so directed and
as shall be necessary or appropriate to effect the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature; and
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Securities, engage in such
ministerial activities as so directed as shall be necessary or
appropriate to effect the distribution of the Debentures to Holders of
Securities upon the occurrence of a Tax Event or Investment Company
Event.
(d) The Property Trustee shall take all actions and perform such duties
as may be specifically required of the Property Trustee pursuant to the terms of
this Trust Agreement and the Securities.
21
Exhibit (4)(s)
(e) The Property Trustee shall take any Legal Action which arises out
of or in connection with an Event of Default or the Property Trustee's duties
and obligations under this Trust Agreement or the Trust Indenture Act, provided,
however, that if an Event of Default has occurred and is continuing and such
event is attributable to the failure of the Debenture Issuer to pay interest,
principal or other required payments on the Debentures on the date such
interest, principal or other required payments are otherwise payable (or in the
case of redemption, on the redemption date), then a Holder of Preferred
Securities may directly institute a proceeding against the Debenture Issuer for
enforcement of payment to such Holder of the principal of or interest on
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such Holder (a "Direct Action") on or after the
respective due date specified in the Debentures. Notwithstanding any payments
made to such Holder by the Sponsor, in connection with such Direct Action, the
Sponsor shall remain obligated to pay the principal of, premium, if any, or
interest on such Debentures, and the Sponsor shall be subrogated to the rights
of such Holder of Preferred Securities to the extent of any payment made by the
Sponsor to such Holder of Preferred Securities in such Direct Action. Except as
provided in the preceding sentences of this paragraph, the Holders of Preferred
Securities shall have no right or power to exercise directly any other remedy
available to the holders of the Debentures.
(f) The Property Trustee shall not resign as a Trustee unless either:
(i) the Trust has been completely liquidated and the proceeds
of the liquidation have been distributed to the Holders of Securities
pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been appointed and has
accepted that appointment in accordance with Section 6.6.
(g) The Property Trustee shall have the legal power to exercise all of
the rights, powers and privileges of a holder of Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Property Trustee may authorize one or more Persons (each, a
"Paying Agent") to pay Distributions, redemption payments or liquidation
payments on behalf of the Trust with respect to all Securities and any such
Paying Agent shall comply with Section 317(b) of the Trust Indenture Act. Any
Paying Agent may be removed by the Property Trustee at any time and a successor
Paying Agent or additional Paying Agents may be appointed at any time by the
Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee shall have none
of the duties, liabilities, powers or the authority of the Regular Trustees set
forth in Section 3.6.
The Property Trustee shall exercise the powers set forth in this
Section 3.8 in a manner that is consistent with the purposes and functions of
the Trust set out in Section 3.3, and the Property Trustee shall have no power
to, and shall not take, any action that is inconsistent with the purposes and
functions of the Trust set out in Section 3.3.
22
Exhibit (4)(s)
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any Event of Default
and after the curing of all Events of Default that may have occurred, shall
undertake to perform only such duties as are specifically set forth in this
Trust Agreement and no implied covenants shall be read into this Trust Agreement
against the Property Trustee. In case an Event of Default has occurred (that has
not been cured or waived pursuant to Section 2.6), the Property Trustee shall
exercise such of the rights and powers vested in it by this Trust Agreement, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) No provision of this Trust Agreement shall be construed to relieve
the Property Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Trust Agreement and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Trust
Agreement, and no implied covenants or obligations shall be
read into this Trust Agreement against the Property Trustee;
and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Trust Agreement; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Property Trustee,
the Property Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements
of this Trust Agreement;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a
Majority in Liquidation Amount of the Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Trust Agreement;
(iv) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall
23
Exhibit (4)(s)
have reasonable grounds for believing that the repayment of such funds
or liability is not reasonably assured to it under the terms of this
Trust Agreement or adequate indemnity against such risk or liability is
not reasonably assured to it;
(v) the Property Trustee's sole duty with respect to the
custody, safe keeping and physical preservation of the Debentures and
the Property Account shall be to deal with such property in a similar
manner as the Property Trustee deals with similar property for its own
account, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the
Trust Indenture Act;
(vi) the Property Trustee shall have no duty or liability for
or with respect to the value, genuineness, existence or sufficiency of
the Debentures or the payment of any taxes or assessments levied
thereon or in connection therewith;
(vii) the Property Trustee shall not be liable for any
interest on any money received by it except as it may otherwise agree
with the Sponsor. Money held by the Property Trustee need not be
segregated from other funds held by it except in relation to the
Property Account maintained by the Property Trustee pursuant to Section
3.8(c)(i) and except to the extent otherwise required by law; and
(viii) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the Regular
Trustees or the Sponsor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely and shall be
fully 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, sent or presented by the
proper party or parties;
(ii) any direction or act of the Sponsor or the Regular
Trustees contemplated by this Trust Agreement shall be sufficiently
evidenced by an Officers' Certificate;
(iii) whenever in the administration of this Trust Agreement,
the Property Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action hereunder,
the Property Trustee (unless other evidence is herein specifically
prescribed) may, in the absence of bad faith on its part, request and
rely upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Sponsor or the Regular Trustees;
(iv) the Property Trustee shall have no duty to see to any
recording, filing or registration of any instrument (including any
financing or continuation statement or any filing under tax or
securities laws) or any rerecording, refiling or registration thereof;
24
Exhibit (4)(s)
(v) the Property Trustee may consult with counsel or other
experts and the advice or opinion of such counsel and experts with
respect to legal matters or advice within the scope of such experts'
area of expertise 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 accordance with such advice or opinion,
such counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees. The Property Trustee shall have
the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent
jurisdiction;
(vi) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust
Agreement at the request or direction of any Holder, unless such Holder
shall have provided to the Property Trustee adequate security and
indemnity reasonably satisfactory to the Property Trustee, against the
costs, expenses (including attorneys' fees and expenses) and
liabilities that might be incurred by it in complying with such request
or direction, including such reasonable advances as may be requested by
the Property Trustee provided, that, nothing contained in this Section
3.10(a) shall be taken to relieve the Property Trustee, upon the
occurrence of an Event of Default, of its obligation to exercise the
rights and powers vested in it by this Trust Agreement;
(vii) the Property 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, security, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Property
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit;
(viii) the Property Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents, custodians, nominees or attorneys and the Property
Trustee shall not be responsible for any misconduct or negligence on
the part of any agent, custodian, nominee or attorney appointed with
due care by it hereunder;
(ix) any action taken by the Property Trustee or its agents
hereunder shall bind the Trust and the Holders of the Securities, and
the signature of the Property Trustee or its agents alone shall be
sufficient and effective to perform any such action and no third party
shall be required to inquire as to the authority of the Property
Trustee to so act or as to its compliance with any of the terms and
provisions of this Trust Agreement, both of which shall be conclusively
evidenced by the Property Trustee's or its agent's taking such action;
(x) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with
respect to enforcing any remedy or right or taking any other action
hereunder the Property Trustee (i) may request instructions from the
Holders of the Securities which instructions may only be given by the
Holders of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under the terms of
the Securities in respect of such
25
Exhibit (4)(s)
remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received,
and (iii) shall be protected in conclusively relying on or acting in
accordance with such instructions; and
(xi) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to
take any action that is discretionary under the provisions of this
Trust Agreement.
(b) No provision of this Trust Agreement shall be deemed to impose any
duty or obligation on the Property Trustee to perform any act or acts or
exercise any right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Trust Agreement other than
Section 6.2, the Delaware Trustee shall not be entitled to exercise any powers,
nor shall the Delaware Trustee have any of the duties and responsibilities of
the Regular Trustees or the Property Trustee described in this Trust Agreement.
Except as set forth in Section 6.2, the Delaware Trustee shall be a Trustee for
the sole and limited purpose of fulfilling the requirements of Section 3807 of
the Business Trust Act.
SECTION 3.12 Execution of Documents.
Except as otherwise required by the Business Trust Act or applicable
law, any Regular Trustee is authorized to execute on behalf of the Trust any
documents that the Regular Trustees have the power and authority to execute
pursuant to Section 3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Trust Agreement and the Securities shall
be taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. The Trustees make no representations as to
the value or condition of the property of the Trust or any part thereof. The
Trustees make no representations as to the validity or sufficiency of this Trust
Agreement or the Securities.
SECTION 3.14 Duration of Trust.
The Trust shall exist until dissolved and terminated pursuant to the
provisions of Article VIII hereof.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with or into, or
be replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except as described in Section
3.15(b) and (c) or Section 8.2.
26
Exhibit (4)(s)
(b) The Trust may, at the request of the Sponsor, and with the consent
of a majority of the Regular Trustees and without the consent of the Holders of
the Securities, the Delaware Trustee or the Property Trustee, consolidate,
amalgamate, merge with or into, or be replaced by or convey, transfer or lease
its properties substantially as an entirety to a trust organized as such under
the laws of any State; provided that:
(i) if the Trust is not the surviving entity, the successor entity (the
"Successor Entity") either:
(A) expressly assumes all of the obligations of the Trust with
respect to the Securities; or
(B) substitutes for the Securities other securities having
substantially the same terms as the Securities (the "Successor
Securities") as long as the Successor Securities rank the same
as the Securities rank in priority with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Debenture Issuer expressly appoints a trustee of such
Successor Entity that possesses the same powers and duties as the Property
Trustee as the holder of the Debentures;
(iii) the Preferred Securities or any Successor Securities are listed,
or any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or with any other organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Preferred Securities (including any
Successor Securities) to be downgraded by any nationally recognized statistical
rating organization;
(v) such merger, consolidation, amalgamation, replacement. conveyance,
transfer or lease does not adversely affect the powers, preferences and other
special rights of the Holders of the Preferred Securities (including any
Successor Securities) in any material respect;
(vi) such Successor Entity has a purpose substantially identical to
that of the Trust;
(vii) prior to such merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Sponsor has received an opinion of
independent counsel to the Trust experienced in such matters to the effect that:
(A) the Successor Entity will be treated as a grantor
trust for United States Federal income tax purposes;
(B) following such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
neither the Sponsor nor the Successor Entity will be required
to register as an Investment Company; and
(C) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease will not adversely
affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor
Securities) in any
27
Exhibit (4)(s)
material respect (other than with respect to any dilution of
the Holder's interests in the Successor Entity); and
(viii) the Sponsor or any permitted successor or assignee owns all of
the Common Securities and provides a guarantee to the Holders of the Successor
Securities with respect to the Successor Entity having substantially the same
terms as the Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not, except with
the consent of Holders of 100% in aggregate liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to, any Person or permit any Person to
consolidate, amalgamate, merge with or into or replace it, if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or Successor Entity to be classified as other than a
grantor trust for United States Federal income tax purposes and each Holder of
the Securities not to be treated as owning an undivided interest in the
Debentures.
SECTION 3.16. Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relative to the Trust, or any other obligor upon the
Securities or the property of the trust or of such other obligor or their
creditors, the Property Trustee (irrespective of whether any Distributions on
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities
(ir, if the Securities are original issue discount Securities,
such portion of the liquidation amount as may be specified in
the terms of such Securities) and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Property Trustee (including any claim for
the reasonable compensation, expenses, disbursements and
advances of the Property Trustee, its agents and its counsel)
and of the Holders allowed in such judicial proceeding, and
(b) 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 Property Trustee and, in the event the
Property Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property Trustee, its
agents and its counsel), and any other amounts due the Property Trustee.
28
Exhibit (4)(s)
Nothing herein contained shall be deemed to authorize the Property
trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or compensation affecting
the Securities or the rights of any Holder thereof or to authorize the Property
Trustee to vote in respect of the claim of any Holder in any such proceeding.
ARTICLE IV
SPONSOR
SECTION 4.1 Responsibilities of the Sponsor.
In connection with the issue and sale of the Preferred Securities, the
Sponsor shall have the exclusive right and responsibility to engage in the
following activities:
(a) to prepare for filing by the Trust with the Commission the
registration statement on Form S-3, including any amendments thereto;
(b) to determine the States and foreign jurisdictions in which to take
appropriate action to qualify or register for sale all or part of the Preferred
Securities and to do any and all such acts, other than actions which must be
taken by the Trust, and advise the Trust of actions it must take, and prepare
for execution and filing any documents to be executed and filed by the Trust, as
the Sponsor deems necessary or advisable in order to comply with the applicable
laws of any such States and foreign jurisdictions;
(c) to prepare for filing by the Trust an application to PORTAL and to
the New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing or quotation of the Preferred Securities;
(d) to prepare for filing by the Trust with the Commission a
registration statement on Form 8-A relating to the registration of the Preferred
Securities under Section 12(b) of the Exchange Act, including any amendments
thereto; and
(e) to negotiate the terms of the underwriting agreement and other
related agreements providing for the sale of the Preferred Securities.
SECTION 4.2 Indemnification and Fees and Expenses of the Trustees
The Sponsor, in its capacity as Debenture Issuer, agrees to indemnify
the Property Trustee, the Delaware Trustee, any affiliate of the Property
Trustee or the Delaware Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives, custodians, nominees or agents of
the Property Trustee or Delaware Trustee, (each a "Fiduciary Indemnified
Person") for, and to hold each Fiduciary Indemnified Person harmless against,
any loss, liability or expense incurred to the extent incurred without gross
negligence (or in the case of the Property Trustee, negligence) or bad faith or
willful misconduct on the part of the Fiduciary Indemnified Person, arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees and
expenses) of defending itself against any claim or liability in connection with
the exercise or
29
Exhibit (4)(s)
performance of any of its powers or duties hereunder. The provisions of this
Section 4.2 shall survive the resignation or removal of the Delaware Trustee or
the Property Trustee or the termination of this Trust Agreement.
SECTION 4.3 Compensation of the Trustees
The Sponsor agrees to pay the Property Trustee and the Delaware Trustee
from time to time such compensation for all services rendered by the Property
Trustee and the Delaware Trustee hereunder as may be mutually agreed upon in
writing by the Sponsor and the Property Trustee or Delaware Trustee, as the case
may be, and, except as otherwise expressly provided herein, to reimburse the
Property Trustee and the Delaware Trustee upon its or their request for all
reasonable expenses, disbursements and advances incurred or made by the Property
Trustee or the Delaware Trustee, as the case may be, in accordance with the
provisions of this Trust Agreement, except any such expense, disbursement or
advance as may be attributable to its or their negligence or bad faith.
ARTICLE V
TRUST COMMON SECURITIES HOLDER
SECTION 5.1 Sponsor's Purchase of Common Securities
On the Closing Date the Sponsor will purchase all the Common Securities
issued by the Trust, in an aggregate liquidation amount equal to 3% of the total
capital of the Trust, at the same time as the Preferred Securities are sold.
SECTION 5.2 Covenants of the Common Securities Holder
For so long as the Preferred Securities remain outstanding, the Common
Securities Holder will covenant (i) to maintain directly 100% ownership of the
Common Securities, (ii) to cause the Trust to remain a statutory business trust
and not to voluntarily dissolve, wind up, liquidate or be terminated, except as
permitted by this Trust Agreement, (iii) to use its commercially reasonable
efforts to ensure that the Trust will not be an investment company for purposes
of the Investment Company Act, and (iv) to take no action which would be
reasonably likely to cause the Trust to be classified as other than a grantor
trust for United States federal income tax purposes.
ARTICLE VI
TRUSTEES
SECTION 6.1 Number of Trustees.
The number of Trustees shall initially be five, and:
30
Exhibit (4)(s)
(a) at any time before the issuance of any Securities, the Sponsor may,
by written instrument, increase or decrease the number of Trustees; and
(b) after the issuance of any Securities the number of Trustees may be
increased or decreased by vote of the Holders of a Majority in Liquidation
Amount of the Common Securities voting as a class at a meeting of the Holders of
the Common Securities or by written consent in lieu of such meeting; provided
that the number of Trustees shall be at least three; and provided further that
(i) the Delaware Trustee, in the case of a natural person, shall be a person who
is a resident of the State of Delaware or that, if not a natural person, is an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable law; (ii) at least one Regular
Trustee is an employee or officer of, or is affiliated with, the Sponsor; and
(iii) one Trustee shall be the Property Trustee for so long as this Trust
Agreement is required to qualify as an indenture under the Trust Indenture Act,
and such Trustee may also serve as Delaware Trustee if it meets the applicable
requirements..
SECTION 6.2 Delaware Trustee; Eligibility.
If required by the Business Trust Act, one Trustee (which may be the
Property Trustee) (the "Delaware Trustee") shall be
(a) a natural person who is a resident of the State of Delaware;
or
(b) an entity which has its principal place of business in the
State of Delaware, and otherwise meets the requirements of
applicable law;
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 6.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (which may be the Delaware
Trustee) which shall act as Property Trustee which shall:
(i) not be an Affiliate of the Sponsor; and
(ii) be a corporation organized and doing business under the
laws of the United States of America or any State or Territory thereof
or of the District of Columbia, or a corporation or other Person
permitted by the Commission to act as an institutional trustee under
the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision
or examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 6.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
31
Exhibit (4)(s)
(b) If at any time the Property Trustee shall cease to be eligible to
so act under Section 6.3(a), the Property Trustee shall immediately resign in
the manner and with the effect set forth in Section 6.6(c).
(c) If the Property Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Property Trustee and the Holder of the Common Securities (as if it were the
obligor referred to in Section 310(b) of the Trust Indenture Act) shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
(d) The Guarantee shall be deemed to be specifically described in this
Trust Agreement for purposes of clause (i) of the first provision contained in
Section 310(b) of the Trust Indenture Act.
SECTION 6.4 Qualifications of Regular Trustees and Delaware Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the Property
Trustee also acts as Delaware Trustee) shall be either a natural person who is
at least 21 years of age or a legal entity that shall act through one or more
Authorized Officers.
SECTION 6.5 Initial Regular Trustees.
The initial Regular Trustees shall be:
[_____________________]
c/o Weyerhaeuser Company
00000 Xxxxxxxxxxxx Xxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
[_____________________]
c/o Weyerhaeuser Company
00000 Xxxxxxxxxxxx Xxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
[_____________________]
c/o Weyerhaeuser Company
00000 Xxxxxxxxxxxx Xxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
SECTION 6.6 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 6.6(b), Trustees may be appointed or removed
without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
32
Exhibit (4)(s)
(ii) after the issuance of any Securities (but prior to the
occurrence of an Indenture Event of Default) by vote of the Holders of
a Majority in Liquidation Amount of the Common Securities voting as a
class at a meeting of the Holders of the Common Securities; and
(iii) after the issuance of the Preferred Securities and the
occurrence of an Indenture Event of Default, and only with respect to
each of the Property Trustee and Delaware Trustee, by vote of the
Holders of a Majority in Liquidation Amount of the Preferred
Securities.
(b) The Trustee that acts as Property Trustee shall not be removed in
accordance with Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Property Trustee under Section 6.3(a) (the "Successor
Property Trustee") has been appointed and has accepted such appointment by
written instrument executed by such Successor Property Trustee and delivered to
the Regular Trustees and the Sponsor; and
(c) The Trustee that acts as Delaware Trustee shall not be removed in
accordance with this Section 6.6(a) until a successor Trustee possessing the
qualifications to act as Delaware Trustee under Sections 6.2 and 6.4 (a
"Successor Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor Delaware Trustee
and delivered to the Regular Trustees and the Sponsor.
(d) A Trustee appointed to office shall hold office until his or its
successor shall have been appointed or until his death or its dissolution, or
until his or its removal or resignation. Any Trustee may resign from office
(without need for prior or subsequent accounting) by an instrument in writing
signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the holders of the Securities; and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the Trust,
the Sponsor and the resigning Delaware Trustee.
(e) The Holders of the Common Securities shall use their best efforts
to promptly appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be, if the Property
33
Exhibit (4)(s)
Trustee or the Delaware Trustee delivers an instrument of resignation in
accordance with this Section 6.6.
(f) If no Successor Property Trustee or Successor Delaware Trustee
shall have been appointed and accepted appointment as provided in this Section
6.6 within 60 days after delivery to the Sponsor and the Trust of an instrument
of resignation or removal, the resigning Property Trustee or Delaware Trustee,
as applicable, may petition any court of competent jurisdiction for appointment
of a Successor Property Trustee or Successor Delaware Trustee, as applicable.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor Delaware
Trustee, as the case may be.
SECTION 6.7 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the number of
Trustees is not reduced pursuant to Section 6.1, or if the number of Trustees is
increased pursuant to Section 6.1, a vacancy shall occur. A resolution
certifying the existence of such vacancy by a majority of the Regular Trustees
shall be conclusive evidence of the existence of such vacancy. The vacancy shall
be filled with a Trustee appointed in accordance with Section 6.6.
SECTION 6.8 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy, dissolution,
liquidation, incompetence or incapacity to perform the duties of a Trustee shall
not operate to annul the Trust. Whenever a vacancy in the number of Regular
Trustees shall occur, until such vacancy is filled by the appointment of a
Regular Trustee in accordance with Section 6.6, the Regular Trustees in office,
regardless of their number, shall have all the powers granted to the Regular
Trustees and shall discharge all the duties imposed upon the Regular Trustees by
this Trust Agreement.
SECTION 6.9 Meetings.
Meetings of the Regular Trustees shall be held from time to time upon
the call of any Regular Trustee. Regular meetings of the Regular Trustees may be
held at a time and place fixed by resolution of the Regular Trustees. Notice of
any in-person meetings of the Regular Trustees shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 48 hours before such meeting. Notice of any
telephonic meetings of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before a meeting. Notices
shall contain a brief statement of the time, place and anticipated purposes of
the meeting. The presence (whether in person or by telephone) of a Regular
Trustee at a meeting shall constitute a waiver of notice of such meeting except
where a Regular Trustee attends a meeting for the express purpose of objecting
to the transaction of any activity on the ground that the meeting has not been
lawfully called or convened. Unless provided otherwise in this Trust Agreement,
any action of the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person or by telephone) and
eligible to vote with respect to such matter, provided that a Quorum is present,
or without a meeting by the unanimous written consent of the Regular Trustees.
In the event there
34
Exhibit (4)(s)
is only one Regular Trustee, any and all action of such Regular Trustee shall be
evidenced by a written consent of such Regular Trustee.
SECTION 6.10 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
3.6, including any registration statement or amendment thereto filed with the
Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate from time to time
to such of their number or to officers of the Trust the doing of such things and
the execution of such instruments either in the name of the Trust or the names
of the Regular Trustees or otherwise as the Regular Trustees may deem expedient,
to the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee, the Delaware Trustee
or any Regular Trustee that is not a natural person may be merged or converted
or with which such Trustee may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of such Trustee shall be the successor of such 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.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust issue one class
of Preferred Securities, representing undivided beneficial interests in the
assets of the Trust and one class of Common Securities, representing undivided
beneficial interests in the assets of the Trust. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities. The Trust shall issue no
Securities in bearer form.
(i) Preferred Securities. The Preferred Securities of the
Trust have an aggregate liquidation amount with respect to the assets
of the Trust of up to _____________ with respect to the closing of the
sale of Preferred Securities on one or more occasions. The Preferred
Securities are hereby designated for identification purposes only as
"___Trust Preferred Securities". The Preferred Security Certificates
evidencing the Preferred Securities shall be substantially in the form
of Exhibit A to this Trust Agreement, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice or to conform to the rules of any stock exchange on
which the Preferred Securities are listed or quoted.
35
Exhibit (4)(s)
(ii) Common Securities. The Common Securities of the Trust
have an aggregate liquidation amount with respect to the assets of the
Trust of up to _____________ with respect to the closing of the sale of
Common Securities on one or more occasions. The Common Securities are
hereby designated for identification purposes only as "___Trust Common
Securities" (the "Common Securities," and together with the Preferred
Securities, the "Securities"). The Common Security Certificates
evidencing the Common Securities shall be substantially in the form of
Exhibit B to this Trust Agreement, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage,
custom or practice.
(b) Payments of Distributions on, and payment of the Redemption Price
upon a redemption of, the Preferred Securities and Common Securities, as
applicable, shall be made Pro Rata based on the liquidation amount of such
Preferred Securities and the Common Securities; provided, however, that if on
any date on which amounts payable on distribution or redemption, an Indenture
Event of Default shall have occurred and be continuing, no payment of any
Distribution on, or Redemption Price of, any of the Common Securities, and no
other payment on account of redemption, liquidation or other acquisition of such
Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions on all of the outstanding Preferred
Securities for all Distribution periods terminating on or prior thereto, or, in
the case of amounts payable on redemption, the full amount of the Redemption
Price for all of the outstanding Preferred Securities then called for
redemption, shall have been made or provided for, and all funds available to the
Property Trustee shall first be applied to the payment in full in cash of all
Distributions on, or the Redemption Price of, the Preferred Securities then due
and payable. The Trust shall issue no securities or other interests in the
assets of the trust other than the Preferred Securities and the Common
Securities.
(c) The Certificates shall be signed on behalf of the Trust by one
Regular Trustee. Such signature shall be the manual or facsimile signature of
any present of any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Certificates shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificates may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Certificate, shall be the Regular Trustees of
the Trust, although at the date of the execution and delivery of the Trust
Agreement any such person was not such a Regular Trustee. Certificates shall be
printed, lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage.
A Certificate representing Preferred Securities shall not be valid
until authenticated by the manual signature of an authorized officer of the
Property Trustee. Such signature shall be conclusive evidence that the Preferred
Security has been authenticated under this Trust Agreement.
36
Exhibit (4)(s)
Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Preferred Security Certificates for
original issue. The aggregate amount of Preferred Securities outstanding at any
time shall not exceed the aggregate liquidation amount set forth in Section
7.1(a)(i).
The Property Trustee may appoint an authenticating agent acceptable to
the Trust to authenticate Preferred Security Certificates. An authenticating
agent may authenticate Preferred Security Certificates whenever the Property
Trustee may do so. Each reference in this Trust Agreement to authentication by
the Property Trustee includes authentication by such agent. An authenticating
agent has the same rights as the Property Trustee to deal with the Sponsor or an
Affiliate of the Sponsor.
(d) The consideration received by the Trust for the issuance of the
Securities shall constitute a contribution to the capital of the Trust and shall
not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this Trust
Agreement, the Securities so issued shall be deemed to be validly issued, fully
paid and non-assessable undivided beneficial interests in the assets of the
Trust.
(f) Every Person, by virtue of having become a Holder or a Preferred
Security Beneficial Owner in accordance with the terms of this Trust Agreement,
shall be deemed to have expressly assented and agreed to the terms of, and shall
be bound by, this Trust Agreement and the terms of the Securities.
(g) The Holders of the Securities shall have no preemptive or similar
rights.
SECTION 7.2 Distributions.
(a) As owners of undivided beneficial ownership interests in the
Debentures, Holders of Securities shall be entitled to receive cumulative cash
Distributions at a rate per annum of [___]% (the "Interest Rate") of the stated
liquidation amount of $[__] per Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one [semi-annual period] [quarter] will bear interest
thereon compounded [semi-annually] [quarterly] at the Interest Rate (to the
extent permitted by applicable law). The term "Distributions" as used herein
includes such cash distributions and any such interest payable unless otherwise
stated. A Distribution is payable only to the extent that payments are made in
respect of the Debentures held by the Property Trustee and to the extent the
Property Trustee has funds available therefor. The amount of Distributions
payable for any period will be computed for any full [semi-annually] [quarterly]
Distribution period on the basis of a 360-day year of twelve 30-day months, and
for any period shorter than a full [semi-annually] [quarterly] Distribution
period for which Distributions are computed, Distributions will be computed on
the basis of the actual number of days elapsed per 30-day month.
[(b) Distributions on the Securities will be cumulative, will accrue
from the date of original issuance and will be payable [semi-annually]
[quarterly] in arrears, on the following dates, which dates correspond to the
interest payment dates on the Debentures: [_________], of each year, commencing
on ________________].
37
Exhibit (4)(s)
(c) If and to the extent that the Debenture Issuer makes a payment of
interest, premium and/or principal on the Debentures held by the Property
Trustee (the amount of any such payment being a "Payment Amount"), the Property
Trustee shall and is directed, to the extent funds are available for that
purpose, make a Pro Rata distribution of the Payment Amount to Holders, subject
to Section 7.1(b).
(d) Distributions on the Securities will be payable to the Holders
thereof as they appear on the books and records of the Trust at the close of
business on the relevant record dates. While the Preferred Securities are
represented by one or more Global Securities, the relevant record dates shall be
the close of business the Business Day preceding such Distribution payment date;
otherwise the relevant record dates shall be the fifteenth day (whether or not a
Business Day) preceding such Distribution payment date. At all times, the
Distribution payment dates shall correspond to the interest payment dates on the
Debentures. Distributions payable on any Securities that are not punctually paid
on any Distribution payment date, as a result of the Debenture Issuer having
failed to make a payment under the Debentures, shall cease to be payable to the
Person in whose name such Securities are registered on the relevant record date,
and such defaulted Distribution will instead be payable to the Person in whose
name such Securities are registered on the relevant record date, and such
defaulted Distribution shall instead be payable to the Person in whose name such
Securities are registered on the special record date or other specified date
determined in accordance with this Trust Agreement. If any date on which
Distributions are payable on the Securities is not a Business Day, then payment
of the Distribution payable on such date will be made on the next succeeding day
that is a Business Day (and without any interest or other payment in respect of
any such delay) with the same force and effect as if made on such date.
(e) In the event that there is any money or other property held by or
for the Trust that is not accounted for hereunder, such property shall be
distributed Pro Rata (as defined herein) among the Holders of the Securities
except as provided in Section 7.1(b).
SECTION 7.3 Redemption of Securities.
(a) Upon the repayment or redemption, in whole or in part, of the
Debentures held by the Trust, whether at the stated maturity of the Debentures
or upon earlier redemption as provided in the Indenture, the proceeds from such
repayment or redemption shall be simultaneously applied Pro Rata (subject to
Section 7.1(b)) to redeem Securities having an aggregate liquidation amount
equal to the aggregate principal amount of the Debentures so repaid or redeemed
at the Redemption Price. Holders will be given not less than 30 nor more than 60
days' notice of such redemption in accordance with Section 7.4. Upon the
repayment of the Debentures at maturity or upon any acceleration, earlier
redemption or otherwise, the proceeds from such repayment will be applied to
redeem the Securities, in whole, upon not less than 30 nor more than 60 days'
notice.
(b) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Securities will no longer be deemed to be
outstanding and (ii) Certificates representing Securities will be deemed to
represent the Debentures having an aggregate principal amount equal to the
stated liquidation amount of, and bearing accrued and unpaid interest equal
38
Exhibit (4)(s)
to accumulated and unpaid distributions on, such Securities until such
Certificates are presented to the Sponsor or its agent for transfer or
reissuance.
SECTION 7.4 Redemption Procedures.
(a) Notice of any redemption of, or notice of distribution of
Debentures in exchange for the Securities (a "Redemption/Distribution Notice"),
which notice shall be irrevocable, shall be given by the Trust by mail to each
Holder of Securities to be redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or exchange thereof which, in the
case of a redemption, will be the date fixed for redemption of the Debentures.
For purposes of the calculation of the date of redemption or exchange and the
dates on which notices are given pursuant to this Section 7.4, a
Redemption/Distribution Notice shall be deemed to be given on the day such
notice is first mailed by first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall be addressed to the
Holders of Securities at the address of each such Holder appearing in the
register of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the validity
of the redemption or exchange proceedings with respect to any other Holder.
(b) In the event that fewer than all the outstanding Securities are to
be redeemed, the Preferred Securities and Common Securities will be redeemed Pro
Rata (subject to Section 7.1(b)) and the Preferred Securities to be redeemed
shall be redeemed will be redeemed as described in Section 7.4(c) below. The
particular Preferred Securities to be redeemed will be selected on a Pro Rata
basis by the Property Trustee from the outstanding Preferred Securities not
previously called for redemption, by such method (including, without limitation,
by lot) as the Property Trustee shall deem fair and appropriate. The Trust may
not redeem the Securities in part unless all accumulated and unpaid
Distributions to the date of redemption have been paid in full on all Securities
then outstanding. For purposes of this Trust Agreement, unless the context
otherwise requires, all provisions relating to the redemption of Preferred
Securities shall relate, in the case of any Preferred Security redeemed or to be
redeemed only in part to the portion of the aggregate liquidation amount of
Preferred Securities which has been or is to be redeemed..
(c) Subject to the Trust's fulfillment of the notice requirements set
forth in Section 7.4(a) above, if Securities are to be redeemed, then (i) with
respect to Preferred Securities represented by one or more Global Securities, by
12:00 noon, New York City time, on the redemption date, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Property Trustee will deposit irrevocably with the Depositary or its nominee (or
successor Clearing Agency or its nominee) funds sufficient to pay the applicable
Redemption Price with respect to such Preferred Securities and will give the
Depositary irrevocable instructions and authority to pay the Redemption Price to
the Holders of such Preferred Securities, and (ii) with respect to Preferred
Securities issued in certificated form and Common Securities, provided that the
Debenture Issuer has paid the Property Trustee a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures, the
Property Trustee will irrevocably deposit with the Paying Agent funds sufficient
to pay the amount payable on redemption to the Holders of such Securities and
give the Paying Agent irrevocable instructions and authority to pay the relevant
Redemption Price to the Holders of such Securities upon surrender of their
39
Exhibit (4)(s)
certificates evidencing their Securities. Payment of the Redemption Price on the
Preferred Securities will be made to the recordholders thereof as they appear on
the register of the Trust on the relevant record date, which shall be one
Business Day prior to the relevant redemption date; provided, however, that with
respect to the Preferred Securities not represented by one or more Global
Securities, the relevant record date shall be fifteen days prior to the relevant
redemption date. If any date fixed for redemption of Securities is not a
Business Day, then payment of the amount payable on such date will be made on
the next succeeding day that is a Business Day (without any interest or other
payment in respect of any such delay) except that, if such Business Day falls in
the next calendar year, such payment will be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date fixed for redemption. If payment of the Redemption Price in respect of any
Securities is not paid because the payment of the Redemption Price on the
Debentures is not made, interest will continue to accrue on the Debentures, and,
as a result, Distributions on such Securities will continue to accumulate at the
then applicable rate from the original redemption date to the actual date of
payment, in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price (other than for
purposes of calculating any premium). If a Redemption/Distribution Notice shall
have been given and funds deposited as required, then on the date of such
deposit, all rights of Holders of such Securities so called for redemption will
cease, except the right of the Holders of such Securities to receive the
Redemption Price, but without interest on such Redemption Price, and from and
after the date fixed for redemption, such Securities will cease to be
outstanding.
Neither the Regular Trustees nor the Trust shall be required to
register or cause to be registered the transfer of any Securities that have been
so called for redemption, except in the case of any Securities being redeemed in
part, any portion thereof not to be redeemed.
(d) Subject to the foregoing and applicable law (including, without
limitation, United States federal securities laws), the Debenture Issuer or any
of its subsidiaries may at any time and from time to time purchase outstanding
Preferred Securities by tender, in the open market or by private agreement.
SECTION 7.5 Voting Rights of Preferred Securities.
a) Except as provided under Section 3.15, Section 6.6, Section 11.1 and
this Article VII, and as otherwise required by the Business Trust Act, the Trust
Indenture Act and other applicable law, the Holders of the Preferred Securities
will have no voting rights.
(b) Subject to the requirement of the Property trustee obtaining a tax
opinion in certain circumstances set forth in Section 7.5(d) below, the Holders
of a Majority in Liquidation Amount of the Preferred Securities, voting
separately as a class may direct the time, method, and place of conducting any
proceeding for any remedy available to the Property Trustee, or direct the
exercise of any trust or power conferred upon the Property Trustee under the
Trust Agreement, including the right to direct the Property Trustee, as holder
of the Debentures, to (i) exercise the remedies available under the Indenture as
a holder of the Debentures, (ii) consent to any amendment or modification of the
Indenture or the Debentures where such consent shall be required, or (iii) waive
any past default and its consequences that is waivable under Section 5.10 of the
Indenture, provided, however, that, if an Indenture Event of Default under
Section 5.1(e)
40
Exhibit (4)(s)
or Section 5.1(f) of the Indenture or otherwise relating to all debt securities
outstanding under the Indenture has occurred and is continuing, then the holders
of 25% of the aggregate principal amount of all securities then outstanding
under the Indenture (including the Debentures), voting as a single class, will
have the right to declare the principal of, premium, if any, and interest on all
securities outstanding under the Indenture (including the Debentures) due and
payable; or (iv) cancel an acceleration of the principal of the Debentures; and
provided further, where a consent or action under the Indenture would require
the consent or act of the Holders of a Super Majority, the Property Trustee may
only give such consent or take such action at the direction of the Holders of at
least the proportion in liquidation amount of the Preferred Securities which the
relevant Super Majority represents of the aggregate principal amount of the
Debentures outstanding.
(c) If the Property Trustee fails to enforce its rights, as holder of
the Debentures, under the Indenture after a Holder of Preferred Securities has
made a written request, such Holder of Preferred Securities may, to the extent
permitted by applicable law, and after a period of 30 days has elapsed from such
Holder's written request to the Property Trustee to enforce such rights,
institute a legal proceeding directly against the Debenture Issuer, to enforce
the rights of the Property Trustee, as holder of the Debentures, under the
Indenture, without first instituting any legal proceeding against the Property
Trustee or any other Person. Notwithstanding the foregoing, in the event the
Debenture Issuer shall fail to make any payment on the Debentures when due,
holders of the Preferred Securities shall have the right to institute a direct
action against the Debenture Issuer for payment of such amounts on or after the
respective due date specified in the Debentures.
(d) The Property Trustee shall notify all Holders of the Preferred
Securities of any notice of any Indenture Event of Default received from the
Debenture Issuer with respect to the Debentures. Such notice shall state that
such Indenture Event of Default also constitutes an Event of Default under the
Trust Agreement. Other than with respect to directing the time, method and place
of conducting any remedy available to the Property Trustee, the Property Trustee
shall be under no obligation to take any action described in Sections 7.5(b)(i)
and 7.5(b)(ii) unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action, the
Trust will not fail to be classified as a grantor trust or partnership for
United States Federal income tax purposes.
(e) In the event the consent of the Property Trustee as the holder of
the Debentures is required under the Indenture with respect to any amendment,
modification or termination of the Indenture or the Debentures, the Property
Trustee shall request the direction of the Holders of the Preferred Securities
with respect to such amendment, modification or termination and shall vote with
respect to such amendment, modification or termination as directed by a Majority
in Liquidation Amount of the Preferred Securities voting together as a single
class; provided, however, that where a consent under the Indenture would require
the consent of a Super Majority, the Property Trustee may only give such consent
at the direction of the Holders of at least the same proportion in aggregate
stated liquidation preference of the Preferred Securities; provided, further,
that the Property Trustee shall not take any action in accordance with the
directions of the Holders of the Securities under this paragraph 7.5(e) unless
the Property Trustee has obtained an opinion of tax counsel to the effect that
for the purposes of United States Federal income tax the Trust will not be
classified as other than a grantor trust or partnership on account of such
action.
41
Exhibit (4)(s)
(f) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Event of Default under
this Trust Agreement.
(g) Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities in
the Trust, or pursuant to written consent. The Regular Trustees will cause a
notice of any meeting at which Holders of Preferred Securities are entitled to
vote, or of any matter upon which action by written consent of such Holders is
to be taken, to be mailed to each Holder of record of Preferred Securities. Each
such notice will include a statement setting forth the following information:
(i) the date of such meeting or the date by which such action is to be taken,
(ii) a description of any resolution proposed for adoption at such meeting on
which such Holders are entitled to vote or of such matter upon which written
consent is sought and (iii) instructions for the delivery of proxies or
consents.
(h) No vote or consent of the Holders of the Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Trust Agreement and the terms
of the Securities.
(i) Notwithstanding that Holders of Preferred Securities are entitled
to vote or consent under any of the circumstances described above, any of the
Preferred Securities that are owned by the Sponsor, the Debenture Issuer, any
Affiliate of the Sponsor or Debenture Issuer, or any Regular Trustee shall not
be entitled to vote or consent and shall, for purposes of such vote or consent,
be treated as if such Preferred Securities were not outstanding; provided,
however, that Persons otherwise eligible to vote to whom the Sponsor, Debenture
Issuer or any of their respective Affiliates have pledged Preferred Securities
may vote or consent with respect to such pledged Preferred Securities under any
of the circumstances described herein.
(j) Subject to Sections 6.6(a) and 7.5(k), Holders of the Preferred
Securities shall have no rights to appoint or remove the Trustees, who may be
appointed, removed or replaced solely by the Common Securities Holder.
(k) If an Indenture Event of Default has occurred and is continuing,
the Property Trustee and the Delaware Trustee may be removed at such time only
by a Majority in Liquidation Amount of the Preferred Securities.
(l) The Trustees shall not revoke any action previously authorized or
approved by a vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities.
SECTION 7.6 Voting Rights of Common Securities.
(a) Except as provided under Section 6.1(b), this Section 7.6 or
Section 11.1 or as otherwise required by the Business Trust Act, the Trust
Indenture Act or other applicable law or provided by this Trust Agreement, the
Holders of the Common Securities will have no voting rights.
42
Exhibit (4)(s)
(b) Subject to Sections 6.6(a) and 7.5(k), the Holders of the Common
Securities are entitled, in accordance with Article VI of this Trust Agreement,
to vote to appoint, remove or replace any Trustee or to increase or decrease the
number of Trustees.
(c) Subject to Section 2.6 of this Trust Agreement and only after all
Events of Default with respect to the Preferred Securities have been cured,
waived, or otherwise eliminated and subject to the requirements of the Property
Trustee obtaining a tax opinion in certain circumstances set forth in this
Section 7.6(c), the Holders of a Majority in Liquidation Amount of the Common
Securities, voting separately as a class, have the right to direct the time,
method, and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement, including the right to direct the Property
Trustee, as holder of the Debentures, to (i) exercise the remedies available to
it under the Indenture as a holder of the Debentures, (ii) consent to any
amendment or modification of the Indenture or the Debentures where such consent
shall be required, or (iii) waive any past default and its consequences that is
waivable under Section 5.10 of the Indenture; provided, however, that, if an
Indenture Event of Default under Section 5.1(e) or Section 5.1(f) of the
Indenture or otherwise relating to all debt securities outstanding under the
Indenture has occurred and is continuing, then the holders of 25% of the
aggregate principal amount of all securities then outstanding under the
Indenture (including the Debentures), voting as a single class, will have the
right to declare the principal of, premium, if any, and interest on all
securities outstanding under the Indenture (including the Debentures) due and
payable; and provided further, where a consent or action under the Indenture
would require the consent or act of the Holders of a Super Majority, the
Property Trustee may only give such consent or take such action at the direction
of the Holders of at least the proportion in liquidation preference of the
Common Securities which the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding. Other than with respect to
directing the time, method and place of conducting any remedy available to the
Property Trustee or the Debenture Trustee as set forth above, the Property
Trustee shall be under no obligation to take any action in accordance with the
directions of the Holders of the Common Securities under Section 7.6(c)(i) and
Section 7.6(c)(ii) unless the Property Trustee has obtained an opinion of
independent tax counsel to the effect that, as a result of such action the Trust
will not fail to be classified as a grantor trust or a partner ship for United
States Federal income tax purposes.
(d) If the Property Trustee fails to enforce its rights, as holder of
the Debentures, under the Indenture after a Holder of Common Securities has made
a written request, such Holder of Common Securities may, after a period of 30
days has elapsed from such Holder's written request to the Property Trustee to
enforce such rights, to the extent permitted by applicable law, institute a
legal proceeding directly against the Debenture Issuer, to enforce the Property
Trustee's rights, as holder of the Debentures, under the Indenture, without
first instituting any legal proceeding against the Property Trustee or any other
Person.
(e) A waiver of an Indenture Event of Default with respect to the
Debentures will constitute a waiver of the corresponding Event of Default under
this Trust Agreement.
(f) Any required approval or direction of Holders of Common Securities
may be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust, or
pursuant to written consent. The
43
Exhibit (4)(s)
Regular Trustees will cause a notice of any meeting at which Holders of Common
Securities are entitled to vote, or of any matter upon which action by written
consent of such Holders is to be taken, to be mailed to each Holder of record of
Common Securities. Each such notice will include a statement setting forth the
following information: (i) the date of such meeting or the date by which such
action is to be taken, (ii) a description of any resolution proposed for
adoption at such meeting on which such Holders are entitled to vote or of such
matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
(g) No vote or consent of the Holders of the Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Trust Agreement and the terms of the
Securities.
SECTION 7.7 Registrar, Paying Agent and Conversion Agent.
(a) In the event that the Preferred Securities are not in book-entry
only form, the Trust shall maintain in the Borough of Manhattan, City of New
York, State of New York, (i) an office or agency where Preferred Securities may
be presented for registration of transfer or exchange ("Registrar"), and (ii) an
office or agency where Preferred Securities may be presented for payment
("Paying Agent"). If the Preferred Securities are convertible into capital stock
of the Sponsor, the Trust shall maintain in the Borough of Manhattan, City of
New York, State of New York an office or agency where Preferred Securities may
be exchanged for such capital stock (the "Conversion Agent"). The Registrar
shall keep a register of the Preferred Securities and of their transfer and
exchange. The Trust may appoint the Registrar, the Paying Agent and the
Conversion Agent and may appoint one or more co-registrars, one or more
additional paying agents and one or more additional conversion agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent, Registrar or
co-registrar, or if applicable, any Conversion Agent without prior notice to any
Holder. The Trust shall notify the Property Trustee of the name and address of
any agent not a party to this Trust Agreement. If the Trust fails to appoint or
maintain another entity as Registrar, Paying Agent, or if applicable, Conversion
Agent, the Property Trustee shall act as such. The Trust or any of its
Affiliates may act as Paying Agent, Registrar or if applicable, Conversion
Agent. The Trust shall act as Paying Agent, Registrar or co-registrar for the
Common Securities.
The Trust initially appoints the Property Trustee as Registrar and
Paying Agent for the Preferred Securities.
(b) The Trust shall require each Paying Agent other than the Property
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Property Trustee all money held by the Paying Agent
for the payment of principal or distribution on the Securities, and will notify
the Property Trustee if there are insufficient funds. While any such
insufficiency continues, the Property Trustee may require a Paying Agent to pay
all money held by it to the Property Trustee. The Trust at any time may require
a Paying Agent to pay all money held by it to the Property Trustee and to
account for any money disbursed by it. Upon payment over to the Property
Trustee, the Paying Agent (if other than the Trust or an Affiliate of the Trust)
shall have no further liability for the money. If the Trust or the Sponsor or an
Affiliate of
44
Exhibit (4)(s)
the Trust or the Sponsor acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the Holders all money held by it as
Paying Agent.
SECTION 7.8 Listing.
The Sponsor shall use its best efforts to cause the Preferred
Securities to be listed for quotation on the New York Stock Exchange
SECTION 7.9 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part, in
accordance with the terms and conditions set forth in this Trust Agreement and
in the terms of the Securities. To the fullest extent permitted by law, any
transfer or purported transfer of any Security not made in accordance with this
Trust Agreement shall be null and void.
(b) (i) Subject to this Article 7, Preferred Securities shall be
freely transferable.
(ii) The Holder of the Common Securities may not transfer the
Common Securities except (A) in compliance with a consolidation, merger, sale,
conveyance or lease of the Sponsor in compliance with Article VIII of the
Indenture or (B) to the Sponsor or an Affiliate thereof in compliance with
applicable law, including the Securities Act and applicable state securities and
blue sky laws. To the fullest extent permitted by law, any attempted transfer of
the Common Securities other than as set forth in the immediately preceding
sentence shall be null and void.
(c) The Trust shall cause to be kept at the Corporate Trust Office of
the Property Trustee or the Registrar a register (the register maintained in
such office being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Trust
shall provide for the registration of Preferred Securities and of transfers of
Preferred Securities.
(d) Upon surrender for registration of transfer of any Security at an
office or agency of the Trust designated for such purpose, the Trust shall
execute, and the Property Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Securities of any
authorized denominations and of a like aggregate principal amount.
(e) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Trust shall
execute, and in the case of Preferred Securities the Property Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
(f) Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Trust or the Property
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Trust and the Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
45
Exhibit (4)(s)
(g) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Trust 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.
(h) If the Securities are to be redeemed in part, the Trust shall not
be required (A) to issue, register the transfer of or exchange any Securities
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of any such Securities selected for
redemption under Section 7.4 and ending at the close of business on the day of
such mailing, or (B) to register the transfer or exchange of any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 7.10 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to the Regular
Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such security or
indemnity as may be required by them to keep each of the Trustees, the Sponsor
and the Trust harmless, then, in the absence of notice that such Certificate
shall have been acquired by a bona fide purchaser, any Regular Trustee on behalf
of the Trust shall execute and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
denomination. In connection with the issuance of any new Certificate under this
Section 7.10, the Regular Trustees may require the payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith. Any duplicate Certificate issued pursuant to this Section shall
constitute conclusive evidence of an ownership interest in the relevant
Securities, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
SECTION 7.11 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate shall
be registered on the register of the Trust as the sole holder of such
Certificate and of the Securities represented by such Certificate for purposes
of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trust shall have
actual or other notice thereof.
SECTION 7.12 Global Securities.
On initial issuance, the Preferred Securities shall be issued in
definitive form to the Sponsor. Upon transfer by the Sponsor of the Preferred
Securities, the Preferred Securities may be issued in the form of one or more
Global Securities. If the Preferred Securities are to be issued in the form of
one or more Global Securities, then a Regular Trustee on behalf of the Trust
shall
46
execute and the Property Trustee shall authenticate and deliver one or more
Global Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate liquidation amount of all of the Preferred Securities to
be issued in the form of Global Securities and not yet cancelled, (ii) shall be
registered in the name of the Depositary for such Global Security or the nominee
of such Depositary, and (iii) shall be delivered by the Property Trustee to such
Depositary or pursuant to such Depositary's instructions. Global Securities
shall bear a legend substantially to the following effect:
"This Preferred Security is a Global Security within the meaning of the
Trust Agreement hereinafter referred to and is registered in the name
of The Depository Trust Company, a New York corporation (the
"Depositary"), or a nominee of the Depositary. This Preferred Security
is exchangeable for Preferred Securities registered in the name of a
person other than the Depositary or its nominee only in the limited
circumstances described in the Trust Agreement and no transfer of this
Preferred Security (other than a transfer of this Preferred Security 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) may be registered except in limited circumstances. Unless
this Preferred Security Certificate is presented by an authorized
representative of the Depositary to Weyerhaeuser Capital Trust I or its
agent for registration of transfer, exchange or payment, and any
Preferred Security Certificate issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative
of the Depositary (and any payment hereon is made to Cede & Co. or to
such other entity as is requested by an authorized representative of
the Depositary), 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."
Preferred Securities not represented by a Global Security issued in exchange for
all or a part of a Global Security pursuant to this Section 7.12 shall be
registered in such names and in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Property Trustee. Upon execution and authentication, the
Property Trustee shall deliver such Preferred Securities not represented by a
Global Security to the Persons in whose names such definitive Preferred
Securities are so registered. At such time as all interests in Global Securities
have been redeemed, repurchased or cancelled, such Global Securities shall be,
upon receipt thereof, cancelled by the Property Trustee in accordance with
standing procedures of the Depositary. At any time prior to such cancellation,
if any interest in Global Securities is exchanged for Preferred Securities not
represented by a Global Security, redeemed, cancelled or transferred to a
transferee who receives Preferred Securities not represented by a Global
Security therefor or any Preferred Security not represented by a Global Security
is exchanged or transferred for part of Global Securities, the principal amount
of such Global Securities shall, in accordance with the standing procedures of
the Depositary, be reduced or increased, as the case may be, and an endorsement
shall be made on such Global Securities by the Property Trustee to reflect such
reduction or increase. The Trust and the Property Trustee may for all purposes,
including the making of payments due on the Preferred Securities, deal with the
Depositary as the authorized representative of the Holders for the purposes of
exercising the rights of Holders hereunder. The rights of the owner of any
beneficial interest in a Global Security shall be limited to those established
by law and agreements between such owners and depository participants provided,
that no such agreement shall give any rights to any Person
47
Exhibit (4)(s)
against the Trust or the Property Trustee without the written consent of the
parties so affected. Multiple requests and directions from and votes of the
Depositary as holder of Preferred Securities in global form with respect to any
particular matter shall not be deemed inconsistent to the extent they do not
represent an amount of Preferred Securities in excess of those held in the name
of the Depositary or its nominee.
If at any time the Depositary for any Preferred Securities represented
by one or more Global Securities notifies the Trust that it is unwilling or
unable to continue as Depositary for such Preferred Securities or if at any time
the Depositary for such Preferred Securities shall no longer be eligible under
this Section 7.12, the Trust shall appoint a successor Depositary with respect
to such Preferred Securities. If a successor Depositary for such Preferred
Securities is not appointed by the Trust within 90 days after the Trust receives
such notice or becomes aware of such ineligibility, the Trust's election that
such Preferred Securities be represented by one or more Global Securities shall
no longer be effective and the Trust shall execute, and the Property Trustee
will authenticate and deliver, Preferred Securities in definitive registered
form, in any authorized denominations, in an aggregate liquidation amount equal
to the principal amount of the Global Security or Preferred Securities
representing such Preferred Securities in exchange for such Global Security or
Preferred Securities.
The Trust may at any time and in its sole discretion determine that the
Preferred Securities issued in the form of one or more Global Securities shall
no longer be represented by a Global Security or Preferred Securities. In such
event the Trust shall execute, and the Property Trustee, shall authenticate and
deliver, Preferred Securities in definitive registered form, in any authorized
denominations, in an aggregate liquidation amount equal to the principal amount
of the Global Security or Preferred Securities representing such Preferred
Securities, in exchange for such Global Security or Preferred Securities.
Notwithstanding any other provisions of this Trust Agreement (other
than the provisions set forth in Section 7.9), Global Securities may not be
transferred as a whole except 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.
Interests of beneficial owners in a Global Security may be transferred
or exchanged for Preferred Securities not represented by a Global Security and
Preferred Securities not represented by a Global Security may be transferred or
exchange for Global Securities in accordance with rules of the Depositary and
the provisions of Section 7.9.
[SECTION 7.13] [If the Securities are convertible or exchangeable, the
conversion and exchange provisions shall be inserted here.]
ARTICLE VIII
DISSOLUTION AND TERMINATION OF TRUST
SECTION 8.1 Dissolution and Termination of Trust.
(a) The Trust shall dissolve upon the earliest to occur of the
following:
(i) the bankruptcy of the Holder of the Common Securities or
the Sponsor;
48
Exhibit (4)(s)
(ii) the distribution to the Holders of the Securities of the
Debentures held by the Property Trustee in an aggregate principal
amount equal to the aggregate liquidation amount of the Securities;
(iii) the entry of a decree of judicial dissolution of the
Holder of the Common Securities, the Sponsor or the Trust; or
(iv) all of the Securities shall have been called for
redemption [or conversion] and the amounts necessary for redemption
thereof shall have been paid to the Holders in accordance with the
terms of the Securities.
(b) As soon as is practicable after the occurrence of an event referred
to in Section 8.1(a), the Trustees shall file a certificate of cancellation with
the Secretary of State of the State of Delaware.
(c) The provisions of Section 4.2 and Article IX shall survive the
termination of the Trust.
SECTION 8.2 Liquidation Distribution Upon Dissolution of the Trust.
(a) In the event of any voluntary or involuntary liquidation,
dissolution, or winding-up of the Trust (each a "Liquidation"), the Holders of
the Securities on the date of the Liquidation will be entitled to receive, out
of the assets of the Trust available for distribution to Holders of Securities
after satisfaction of the Trust's liabilities to creditors, if any,
distributions in cash or other immediately available funds in an amount equal to
the aggregate of the stated liquidation amount of $_____ per Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
Liquidation, Debentures in an aggregate stated principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
distribution rate of, and accumulated and unpaid interest equal to accrued and
unpaid Distributions on, such Securities shall be distributed on a Pro Rata
basis to the Holders of the Securities in exchange for such Securities.
(b) If, upon any such Liquidation, the Liquidation Distribution can be
paid only in part because the Trust has insufficient assets available to pay in
full the aggregate Liquidation Distribution, then the amounts payable directly
by the Trust on the Securities shall be paid on a Pro Rata basis. The Holders of
the Common Securities will be entitled to receive distributions upon any such
Liquidation Pro Rata with the Holders of the Preferred Securities except that if
an Event of Default under the Indenture has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities with
regard to such distributions as provided for in Section 7.1(b).
49
Exhibit (4)(s)
ARTICLE IX
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 9.1 Liability.
(a) Except as expressly set forth in this Trust Agreement, the
Preferred Securities Guarantee and the terms of the Securities, the Sponsor
shall not be:
(i) personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Holders of the
Securities which shall be made solely from assets of the Trust; and
(ii) required to pay to the Trust or to any Holder of
Securities any deficit upon dissolution of the Trust or otherwise.
(b) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Common Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware; provided, however,
the Holders of the Common Securities shall be liable for all of the debts and
obligations of the Trust (other than with respect to the Securities) to the
extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust Act, the Holders
of the Preferred Securities shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
SECTION 9.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or accountable
in damages or otherwise to the Trust or any Covered Person for any loss, damage
or claim incurred by reason of any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Trust Agreement or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in good
faith upon the records of the Trust and upon such information, opinions, reports
or statements presented to the Trust by any Person as to matters the Indemnified
Person reasonably believes are within such other Person's professional or expert
competence and who has been selected with reasonable care by or on behalf of the
Trust, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which Distributions to
Holders of Securities might properly be paid.
50
Exhibit (4)(s)
SECTION 9.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an Indemnified Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Trust or to any other Covered Person, an Indemnified Person acting under this
Trust Agreement shall not be liable to the Trust or to any other Covered Person
for its good faith reliance on the provisions of this Trust Agreement. The
provisions of this Trust Agreement, to the extent that they restrict the duties
and liabilities of an Indemnified Person otherwise existing at law or in equity
(other than the duties imposed on the Property Trustee under the Trust Indenture
Act), are agreed by the parties hereto to replace such other duties and
liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or arises between
an Indemnified Person and any Covered Person; or
(ii) whenever this Trust Agreement or any other agreement
contemplated herein or therein provides that an Indemnified Person
shall act in a manner that is, or provides terms that are, fair and
reasonable to the Trust or any Holder of Securities,
the Indemnified Person shall resolve such conflict of interest, take such action
or provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or
situation and the benefits and burdens relating to such interests, any customary
or accepted industry practices, and any applicable generally accepted accounting
practices or principles. In the absence of bad faith by the Indemnified Person,
the resolution, action or term so made, taken or provided by the Indemnified
Person shall not constitute a breach of this Trust Agreement or any other
agreement contemplated herein or of any duty or obligation of the Indemnified
Person at law or in equity or otherwise.
(c) Whenever in this Trust Agreement an Indemnified Person is permitted
or required to make a decision
(i) in its "discretion" or under a grant of similar authority,
the Indemnified Person shall be entitled to consider such interests and
factors as it desires, including its own interests, and shall have no
duty or obligation to give any consideration to any interest of or
factors affecting the Trust or any other Person; or
(ii) in its "good faith" or under another express standard,
the Indemnified Person shall act under such express standard and shall
not be subject to any other or different standard imposed by this Trust
Agreement or by applicable law.
SECTION 9.4 Indemnification.
(a) The Sponsor, in its capacity as Debenture Issuer, shall indemnify,
to the full extent permitted by law, any Debenture Issuer Indemnified Person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Trust) by
reason of the fact that he is or was a Debenture Issuer Indemnified Person
against
51
Exhibit (4)(s)
expenses (including attorney fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the Company Indemnified Person did not act in good faith and in a manner which
he reasonably believed to be in or not opposed to the best interests of the
Trust, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
(b) The Sponsor, in its capacity as Debenture Issuer, shall indemnify,
to the full extent permitted by law, any Debenture Issuer Indemnified Person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Trust to procure a
judgment in its favor by reason of the fact that he is or was a Debenture Issuer
Indemnified Person against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Trust and except that no
such indemnification shall be made in respect of any claim, issue or matter as
to which such Debenture Issuer Indemnified Person shall have been adjudged to be
liable to the Trust unless and only to the extent that the Court of Chancery of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or such other court
shall deem proper.
(c) Any indemnification under paragraphs (a) and (b) of this Section
9.4 (unless ordered by a court) shall be made by the Debenture Issuer only as
authorized in the specific case upon a determination that indemnification of the
Debenture Issuer Indemnified Person is proper in the circumstances because he
has met the applicable standard of conduct set forth in paragraphs (a) and (b).
Such determination shall be made (1) by the Regular Trustees by a majority vote
of a quorum consisting of such Regular Trustees who were not parties to such
action, suit or proceeding, (2) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion, or (3) by the Common Security
Holder of the Trust.
(e) Expenses (including attorneys' fees) incurred by a Debenture Issuer
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (a) and (b)
of this Section 9.4 shall be paid by the Debenture Issuer in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such Debenture Issuer Indemnified Person to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Debenture Issuer as authorized in this Section 9.4.
Notwithstanding the foregoing, no advance shall be made by the Debenture Issuer
if a determination is reasonably and promptly made (1) by the Regular Trustees
by a majority vote of a quorum of disinterested Regular Trustees, (2) if such a
quorum is not obtainable, or, even if obtainable, if a quorum of disinterested
Regular Trustees so directs, by independent legal counsel in a written opinion
or (3) the Common Security Holder of the Trust,
52
Exhibit (4)(s)
that, based upon the facts known to the Regular Trustees, counsel or the Common
Security Holder at the time such determination is made, such Debenture Issuer
Indemnified Person acted in bad faith or in a manner that such person did not
believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Debenture Issuer Indemnified
Person believed or had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the Regular Trustees,
independent legal counsel or Common Security Holder reasonably determine that
such person deliberately breached his duty to the Trust or its Common Securities
Holders or Preferred Securities Holders.
(e) The indemnification and advancement of expenses provided by, or
granted pursuant to, the other paragraphs of this Section 9.4 shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
stockholders or disinterested directors of the Debenture Issuer or Preferred
Securities Holders of the Trust or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office. All
rights to indemnification under this Section 9.4 shall be deemed to be provided
by a contract between the Debenture Issuer and each Debenture Issuer Indemnified
Person who serves in such capacity at any time while this Section 9.4 is in
effect. Any repeal or modification of this Section 9.4 shall not affect any
rights or obligations then existing.
(f) The Debenture Issuer or the Trust may purchase and maintain
insurance on behalf of any person who is or was a Debenture Issuer Indemnified
Person against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against such liability
under the provisions of this Section 9.4.
(g) For purposes of this Section 9.4, references to "the Trust" shall
include, in addition to the resulting or surviving entity, any constituent
entity (including any constituent of a constituent) absorbed in a consolidation
or merger, so that any person who is or was a director, trustee, officer or
employee of such constituent entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.4 with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
(h) The indemnification and advancement of expenses provided by, or
granted pursuant to, this Section 9.4 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a Debenture
Issuer Indemnified Person and shall inure to the benefit of the heirs, executors
and administrators of such a person. The obligation to indemnify as set forth in
this Section 9.4 shall survive the resignation or removal of the Delaware
Trustee or the Property Trustee or the termination of this Trust Agreement.
SECTION 9.5 Outside Businesses.
Subject to the provisions of Section 6.3, any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee may engage in or possess
an interest in other business ventures of any nature or description,
independently or with others, similar or dissimilar to the activities
53
Exhibit (4)(s)
of the Trust, and the Trust and the Holders of Securities shall have no rights
by virtue of this Trust Agreement in and to such independent ventures or the
income or profits derived therefrom and the pursuit of any such venture, even if
competitive with the business of the Trust, shall not be deemed wrongful or
improper. No Covered Person, the Sponsor, the Delaware Trustee, or the Property
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and any Covered Person, the
Sponsor, the Delaware Trustee and the Property Trustee shall have the right to
take for its own account (individually or as a partner or fiduciary) or to
recommend to others any such particular investment or other opportunity. Any
Covered Person, the Delaware Trustee and the Property Trustee may engage or be
interested in any financial or other transaction with the Sponsor or any
Affiliate of the Sponsor, or may act as depositary for, trustee or agent for, or
act on any committee or body of holders of, securities or other obligations of
the Sponsor or its Affiliates.
ARTICLE X
ACCOUNTING
SECTION 10.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the calendar
year, or such other year as is required by the Code.
SECTION 10.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the Regular
Trustees shall keep, or cause to be kept, full books of account, records and
supporting documents, which shall reflect in reasonable detail, each transaction
of the Trust. The books of account shall be maintained on the accrual method of
accounting, in accordance with generally accepted accounting principles,
consistently applied. The Trust shall use the accrual method of accounting for
United States federal income tax purposes. The books of account and the records
of the Trust shall be examined by and reported upon as of the end of each Fiscal
Year by a firm of independent certified public accountants selected by the
Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and delivered to
each of the Holders of Securities, within 90 days after the end of each Fiscal
Year of the Trust, annual financial statements of the Trust, including a balance
sheet of the Trust as of the end of such Fiscal Year, and the related statements
of income or loss;
(c) The Regular Trustees shall cause to be duly prepared and delivered
to each of the Holders of Securities, any annual United States federal income
tax information statement, required by the Code, containing such information
with regard to the Securities held by each Holder as is required by the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements within 30 days after the end of each Fiscal Year of
the Trust.
(d) The Regular Trustees shall cause to be duly prepared and filed with
the appropriate taxing authority, an annual United States federal income tax
return, on a Form 1041 or such other
54
Exhibit (4)(s)
form required by United States federal income tax law, and any other annual
income tax returns required to be filed by the Regular Trustees on behalf of the
Trust with any state or local taxing authority.
SECTION 10.3 Banking.
The Trust shall maintain one or more bank accounts in the name and for
the sole benefit of the Trust; provided, however, that all payments of funds in
respect of the Debentures held by the Property Trustee shall be made directly to
the Property Account and no other funds of the Trust shall be deposited in the
Property Account. The sole signatories for such accounts shall be designated by
the Regular Trustees; provided, however, that the Property Trustee shall
designate the signatories for the Property Account.
SECTION 10.4 Withholding.
The Trust and the Regular Trustees shall comply with all withholding
requirements under United States federal, state and local law. The Trust shall
request, and the Holders shall provide to the Trust, such forms or certificates
as are necessary to establish an exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Trust to assist it in determining the extent of, and in fulfilling, its
withholding obligations. The Regular Trustee shall file required forms with
applicable jurisdictions and, unless an exemption from withholding is properly
established by a Holder, shall remit amounts withheld with respect to the Holder
to applicable jurisdictions. To the extent that the Trust is required to
withhold and pay over any amounts to any authority with respect to distributions
or allocations to any Holder, the amount withheld shall be deemed to be a
distribution in the amount of the withholding to the Holder. In the event of any
claimed over withholding, Holders shall be limited to an action against the
applicable jurisdiction. If the amount required to be withheld was not withheld
from actual Distributions made, the Trust may reduce subsequent Distributions by
the amount of such withholding.
ARTICLE XI
AMENDMENTS AND MEETINGS
SECTION 11.1 Amendments.
(a) Except as otherwise provided in this Trust Agreement or by any
applicable terms of the Securities, this Trust Agreement may only be amended by
a written instrument approved and executed by the Sponsor and the Regular
Trustees (or, if there are more than two Regular Trustees a majority of the
Regular Trustees);
(b) no amendment shall be made, and any such purported amendment shall
be void and ineffective:
(i) unless, in the case of any proposed amendment, the
Property Trustee shall have first received an Officers' Certificate
from each of the Trust and the Sponsor that such amendment is permitted
by, and conforms to, the terms of this Trust Agreement (including the
terms of the Securities);
55
Exhibit (4)(s)
(ii) unless, in the case of any proposed amendment which
affects the rights, powers, duties, obligations or immunities of the
Property Trustee, the Property Trustee shall have first received:
(A) an Officers' Certificate from each of the Trust
and the Sponsor that such amendment is permitted by, and
conforms to, the terms of this Trust Agreement (including the
terms of the Securities); and
(B) an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by, and
conforms to, the terms of this Trust Agreement (including the
terms of the Securities); and
(iii) to the extent the result of such amendment would be to:
(A) cause the Trust to fail to continue to be
classified for purposes of United States federal income
taxation as a grantor trust;
(B) reduce or otherwise adversely affect the powers
of the Property Trustee or the Delaware Trustee in
contravention of the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an Investment
Company required to be registered under the Investment Company
Act;
(c) If the Trust has issued any Securities that remain outstanding:
(i) any amendment that would (a) change the amount or timing
of any distribution of the Securities or otherwise adversely affect the
amount of any distribution required to be made in respect of the
Securities as of a specified date or (b) restrict the right of a Holder
of Securities to institute suit for the enforcement of any such payment
on or after such date, will entitle the Holders of such Securities,
voting together as a single class, to vote on such amendment or
proposal and such amendment or proposal shall not be effective except
with the approval of each of the Holders of the Securities affected
thereby; and
(ii) Except as provided in Section 11.1(c)(i) hereof, any
provision of this Trust Agreement may be amended by the Trustee and the
Sponsor with (i) the consent of the Holders representing not less than
a Majority in Liquidation Amount of the Securities outstanding and (ii)
receipt by the Trustees of an opinion of counsel to the effect that
such amendment or the exercise of any power granted to the Trustees in
accordance with such amendment will not affect the Trust's status as a
grantor trust for United States federal income tax purposes or the
Trust's exemption from status of an Investment Company.
(d) This Section 11.1 shall not be amended without the consent of all
of the Holders of the Securities;
(e) Article IV shall not be amended without the consent of the Holders
of a Majority in Liquidation Amount of the Common Securities and;
56
Exhibit (4)(s)
(f) the rights of the holders of the Common Securities under Article V
to increase or decrease the number of, and appoint and remove Trustees shall not
be amended without the consent of the Holders of a Majority in Liquidation
Amount of the Common Securities; and
(g) notwithstanding Section 11.1(c), this Trust Agreement may be
amended without the consent of the Holders of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this Trust
Agreement that may be defective or inconsistent with any other
provision of this Trust Agreement;
(iii) add to the covenants, restrictions or obligations of the
Sponsor;
(iv) conform to any change in Rule 3a-5 of the Investment
Company Act or written change in interpretation or application of Rule
3a-5 of the Investment Company Act by any legislative body, court,
government agency or regulatory authority which amendment does not have
a material adverse effect on the rights, preferences or privileges of
the Holders; or
(v) to modify, eliminate and add to any provision of this
Trust Agreement to ensure that the Trust will be classified as a
grantor trust for United States federal income tax purposes at all
times that any Securities are outstanding or to ensure that the trust
will not be required to register as an Investment Company under the
Investment Company Act.
SECTION 11.2 Meetings of the Holders of Securities; Action by Written Consent.
(a) Meetings of the Holders of any class of Securities may be called at
any time by the Regular Trustees (or as provided in the terms of the Securities)
to consider and act on any matter on which Holders of such class of Securities
are entitled to act under the terms of this Trust Agreement, the terms of the
Securities or the rules of any stock exchange on which the Preferred Securities
are listed or admitted for trading. The Regular Trustees shall call a meeting of
the Holders of such class if directed to do so by the Holders of at least 10% in
Liquidation Amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more requests in a writing stating
that the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in writing the Certificates held
by the Holders of Securities exercising the right to call a meeting and only
those Securities represented by the Certificates so specified shall be counted
for purposes of determining whether the required percentage set forth in the
second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of the
Securities, the following provisions shall apply to meetings of Holders of
Securities:
(i) notice of any such meeting shall be given to all the
Holders of Securities having a right to vote thereat at least 7 days
and not more than 60 days before the date of such meeting. Whenever a
vote, consent or approval of the Holders of Securities is
57
Exhibit (4)(s)
permitted or required under this Trust Agreement or the rules of any
stock exchange on which the Preferred Securities are listed or admitted
for trading, such vote, consent or approval may be given at a meeting
of the Holders of Securities. Any action that may be taken at a meeting
of the Holders of Securities may be taken without a meeting and without
notice if a consent in writing setting forth the action so taken is
signed by the Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written ballot
submitted to the Security Holders for the purpose of taking any action
without a meeting shall be returned to the Trust within the time
specified by the Regular Trustees;
(ii) each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of Securities is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise provided herein,
all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware
relating to proxies, and judicial interpretations thereunder, as if the
Trust were a Delaware corporation and the Holders of the Securities
were stockholders of a Delaware corporation;
(iii) each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate; and
(iv) unless the Business Trust Act, this Trust Agreement, the
terms of the Securities, the Trust Indenture Act or the listing rules
of any stock exchange on which the Preferred Securities are then listed
or trading, provide otherwise, the Regular Trustees, in their sole
discretion, shall establish all other provisions relating to meetings
of Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
ARTICLE XII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 12.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Trust Agreement and
at the time of Closing, and each Successor
58
Exhibit (4)(s)
Property Trustee represents and warrants to the Trust and the Sponsor at the
time of the Successor Property Trustee's acceptance of its appointment as
Property Trustee that:
(a) The Property Trustee is a banking corporation with trust powers,
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, with corporate power and authority to execute
and deliver, and to carry out and perform its obligations under the terms of,
the Trust Agreement.
(b) the Property Trustee satisfies the requirements set forth in
Section 6.3(a).
(c) The execution, delivery and performance by the Property Trustee of
the Trust Agreement has been duly authorized by all necessary corporate action
on the part of the Property Trustee. The Trust Agreement has been duly executed
and delivered by the Property Trustee, and constitutes a legal, valid and
binding obligation of the Property Trustee, enforceable against it in accordance
with its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(d) The execution, delivery and performance of the Trust Agreement by
the Property Trustee does not conflict with or constitute a breach of the
certificate of incorporation or By-laws of the Property Trustee.
(e) No consent, approval or authorization of, or registration with or
notice to, any State or Federal banking authority is required for the execution,
delivery or performance by the Property Trustee, of the Trust Agreement.
SECTION 12.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents and
warrants to the Trust and to the Sponsor at the date of this Trust Agreement and
at the time of Closing, and each Successor Delaware Trustee represents and
warrants to the Trust and the Sponsor at the time of the Successor Property
Trustee's acceptance of its appointment as Delaware Trustee that:
(a) the Delaware Trustee satisfies the requirements set forth in
Section 6.2, satisfies Trust Section 3807(a) of the Business Trust Act and has
the power and authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Trust Agreement and, if it is not a natural
person, is duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;
(b) the Delaware Trustee has been authorized to perform its obligations
under the Certificate of Trust and this Trust Agreement. This Trust Agreement
under Delaware law constitutes a legal, valid and binding obligation of the
Delaware Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and other
similar laws affecting creditors' rights generally and to general principles of
equity and the discretion of the court (regardless of whether the enforcement of
such remedies is considered in a proceeding in equity or at law); and
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Exhibit (4)(s)
(c) no consent, approval or authorization of, or registration with or
notice to, any Delaware or federal banking authority is required for the
execution, delivery or performance by the Delaware Trustee of this Trust
Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
All notices provided for in this Trust Agreement shall be in writing,
duly signed by the party giving such notice, and shall be delivered, telecopied
or mailed by registered or certified mail, as follows:
(a) if given to the Trust, in care of the Regular Trustees at the
Trust's mailing address set forth below (or such other address as the Trust may
give notice of to the Holders of the Securities):
c/o Weyerhaeuser Company
00000 Xxxxxxxxxxxx Xxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attention: Vice President and Treasurer
(b) if given to the Property Trustee, at the mailing address set forth
below (or such other address as the Property Trustee may give notice of to the
Holders of the Securities):
[Property Trustee]
[address]
Attention: [Corporate Trust Trustee Administration]
(c) if given to the Holder of the Common Securities, at the mailing
address of the Sponsor set forth below (or such other address as the Holder of
the Common Securities may give notice to the Trust):
Weyerhaeuser Company
00000 Xxxxxxxxxxxx Xxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
Attention: Vice President and Treasurer
(d) if given to any other Holder, at the address set forth on the books
and records of the Trust or the Registrar, as applicable.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which
60
Exhibit (4)(s)
no notice was given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 13.2 Governing Law.
This Trust Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
SECTION 13.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be classified
for United States federal income tax purposes as a grantor trust. The provisions
of this Trust Agreement shall be interpreted to further this intention of the
parties.
SECTION 13.4 Headings.
Headings contained in this Trust Agreement are inserted for convenience
of reference only and do not affect the interpretation of this Trust Agreement
or any provision hereof.
SECTION 13.5 Successors and Assigns.
Whenever in this Trust Agreement any of the parties hereto is named or
referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Trust Agreement by the
Sponsor and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 13.6 Partial Enforceability.
If any provision of this Trust Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Trust Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 13.7 Counterparts.
This Trust Agreement may contain more than one counterpart of the
signature page and this Trust Agreement may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed as of the day and year first above written.
[____________________]
as Trustee
61
Exhibit (4)(s)
______________________________________
[____________________]
as Trustee
______________________________________
[____________________]
as Trustee
______________________________________
[DELAWARE TRUSTEE],
as Delaware Trustee
By:___________________________________
Name:
Title:
[PROPERTY TRUSTEE], as
Property Trustee
By:___________________________________
Name:
Title:
WEYERHAEUSER COMPANY
as Sponsor
By:___________________________________
Name:
Title:
62
Exhibit (4)(s)
EXHIBIT A-1
FORM OF PREFERRED SECURITY
A-1
[FORM OF FACE OF SECURITY]
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL PREFERRED SECURITY, INSERT THE
FOLLOWING: THIS PREFERRED SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE TRUST AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A
NOMINEE OF THE DEPOSITARY. THIS PREFERRED SECURITY IS EXCHANGEABLE FOR PREFERRED
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE TRUST AGREEMENT AND
NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY
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) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES. UNLESS THIS PREFERRED SECURITY
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO
THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY PREFERRED SECURITY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR SUCH OTHER NAME AS REGISTERED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), 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.]
CERTIFICATE NO. ___________
NUMBER OF PREFERRED SECURITIES: _____________ CUSIP NO. _________________
CERTIFICATE EVIDENCING
[ ]% TRUST PREFERRED SECURITIES OF
WEYERHAEUSER CAPITAL TRUST I
[ ]% TRUST PREFERRED SECURITIES
63
Exhibit (4)(s)
FULLY AND UNCONDITIONALLY
GUARANTEED BY WEYERHAEUSER COMPANY
WEYERHAEUSER CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that __________ (the
"Holder") is the registered owner of __________ capital securities of the Trust
representing undivided beneficial ownership interests in the assets of the Trust
designated the "_____% Trust Preferred Securities" (the "Preferred Securities").
The Preferred Securities are transferable on the register of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate duly
endorsed and in proper form for transfer as provided in the Trust Agreement (as
defined below). The designation, rights, privileges, restrictions, preferences
and other terms and provisions of the Preferred Securities represented hereby
are issued and shall in all respects be subject to the provisions of the Amended
and Restated Trust Agreement of the Trust, dated as of ___________, 20___, as
the same may be amended from time to time (the "Trust Agreement"), by and among
WEYERHAEUSER COMPANY, [Regular Trustee], [Regular Trustee] and [Regular
Trustee], as Regular Trustees, [JPMORGAN CHASE BANK], as Property Trustee, and
[CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION], as Delaware Trustee, and the
holders of undivided beneficial ownership interests in the assets of the Trust.
Capitalized terms used herein but not defined shall have the meaning given them
in the Trust Agreement. The Holder is entitled to the benefits of the Guarantee
to the extent described therein. The Sponsor will provide a copy of the Trust
Agreement, the Guarantee and the Indenture to a Holder without charge upon
written request to the Sponsor at its principal place of business. Upon receipt
of this certificate, the Holder is bound by the Trust Agreement and is entitled
to the benefits thereunder. By acceptance, the Holder agrees to treat, for
United States federal, state and local income tax purposes, the Debentures as
indebtedness and the Preferred Securities as evidence of undivided beneficial
ownership interests in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___day of [ ],
20__.
Weyerhaeuser Capital Trust I
By: _____________________________
Name:
Title:
64
[conversion request: to be inserted if applicable]
Exhibit (4)(s)
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated: ____________, ____
[PROPERTY TRUSTEE]
as Property Trustee
By: ______________________________
Authorized Signatory
65
Exhibit (4)(s)
EXHIBIT B
FORM OF COMMON SECURITY
[FORM OF FACE OF SECURITY]
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO THE CONDITIONS SET FORTH IN THE TRUST
AGREEMENT REFERRED TO BELOW.
CERTIFICATE NO. ________
NUMBER OF COMMON SECURITIES: ________
CERTIFICATE EVIDENCING
COMMON SECURITIES OF
WEYERHAEUSER CAPITAL TRUST I
____% COMMON SECURITIES
WEYERHAEUSER CAPITAL TRUST I, a statutory business trust created under the laws
of the State of Delaware (the "Trust"), hereby certifies that WEYERHAEUSER
COMPANY (the "Holder") is the registered owner of common securities of the Trust
representing an undivided beneficial ownership interest in the assets of the
Trust designated the "_____% Common Securities" (the "Common Securities"). The
Common Securities are not transferable and any attempted transfer thereof shall
be void except as permitted by applicable law and by Section 7.9(b)(ii) of the
Trust Agreement (as defined below). The designation, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities represented hereby are issued and shall in all respects be subject to
the provisions of the Amended and Restated Trust Agreement of the Trust, dated
as of_______________, 20__ (as the same may be amended from time to time, the
"Trust Agreement"), by and among WEYERHAEUSER COMPANY, as Sponsor, [Regular
Trustee], [Regular Trustee} and [Regular Trustee], as Regular Trustees,
[JPMORGAN CHASE BANK], as Property Trustee, and [CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION], as Delaware Trustee, and the holders of undivided
beneficial ownership interests in the assets of the Trust. The Holder is
entitled to the benefits of the Guarantee to the extent described therein.
Capitalized terms used herein but not defined shall have the meaning given them
in the Trust Agreement. The Sponsor will provide a copy of the Trust Agreement,
the Guarantee and the Indenture to the Holder without charge upon written
request to the Sponsor at its principal place of business. Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder. By acceptance, the Holder agrees to treat, for United
States federal, state and local income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of an undivided indirect
beneficial ownership interest in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ___day of [ ],
20__.
66
Exhibit (4)(s)
Weyerhaeuser Capital Trust I
By: _____________________________
Name:
Title:
67
[conversion request: to be inserted if applicable]
