EXHIBIT 4.8
FOURTH SUPPLEMENTAL INDENTURE (this "FOURTH SUPPLEMENTAL INDENTURE")
dated as of March 12, 2002 between WEYERHAEUSER COMPANY, a Washington
corporation (the "ISSUER"), and JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank and Chemical Bank), a New York banking corporation, as trustee
(the "TRUSTEE").
WHEREAS the Issuer has executed and delivered to the Trustee an
Indenture dated as of April 1, 1986 (the "ORIGINAL INDENTURE"), as amended and
supplemented by the First Supplemental Indenture dated as of February 15, 1991
(the "FIRST SUPPLEMENTAL INDENTURE"), the Second Supplemental Indenture dated as
of February 1, 1993 (the "SECOND SUPPLEMENTAL INDENTURE") and the Third
Supplemental Indenture dated as of October 22, 2001 (the "THIRD SUPPLEMENTAL
INDENTURE"; the Original Indenture, as amended and supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture and the Third
Supplemental Indenture, is hereinafter called the "Prior Indenture" and the
Prior Indenture, as amended and supplemented by this Fourth Supplemental
Indenture, is hereinafter called, the "INDENTURE"), providing for the issuance
and sale by the Issuer from time to time of its debt securities (the
"SECURITIES");
WHEREAS, Section 8.1 of the Prior Indenture provides that the Issuer may
enter into a supplemental indenture without the consent of any Holder of the
Securities to, among other things, (i) add to the covenants of the Issuer such
further covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection of the Holders
of Securities or Coupons, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in the Indenture, (ii) establish the
form or terms of Securities of any series or of the Coupons appertaining to such
Securities as permitted by Sections 2.1 and 2.3 of the Prior Indenture, or (iii)
to make any other provisions as the Board of Directors may deem necessary or
desirable, provided that no such action shall adversely affect the interests of
the Holders of the Securities or Coupons. The Issuer has determined that this
Fourth Supplemental Indenture complies with said Section 8.1 and does not
require the consent of any Holders of Securities, and has furnished the Trustee
with an Opinion of Counsel and an Officers' Certificate complying with the
requirements of Section 8.4 of the Prior Indenture.
WHEREAS the Issuer proposes in and by this Fourth Supplemental Indenture
to supplement and amend the Prior Indenture in certain respects to (i) add to
the covenants of the Issuer certain further covenants, restrictions, conditions
and provisions for the protection of the Holders of Securities and to make the
occurrence of a default in certain of such additional covenants, restrictions,
conditions and provisions an Event of Default permitting the enforcement of the
several remedies provided in the Indenture, and (ii) establish five separate
series of Securities issued pursuant to the Indenture designated as the Floating
Rate Notes due 2003, 5.50% Notes due 2005, 6.125% Notes due 2007, 6.75% Notes
due 2012 and 7.375% Debentures due 2032, respectively; and
WHEREAS the Issuer has requested that the Trustee execute and deliver
this Fourth Supplemental Indenture and has certified that all requirements
necessary to make this Fourth Supplemental Indenture a valid instrument in
accordance with its terms have been satisfied, and
that the execution and delivery of this Fourth Supplemental Indenture has been
duly authorized in all respects.
NOW THEREFORE, the Issuer covenants and agrees with the Trustee for the
equal and proportionate benefit of all Holders of the Offered Securities (as
defined below):
SECTION 1. Definitions.
(a) Terms used herein and not defined herein have the meanings ascribed
to such terms in the Prior Indenture.
(b) Section 1.1 of the Prior Indenture is hereby supplemented to add the
definition of "Fourth Supplemental Indenture" appearing below and is hereby
further supplemented, but solely insofar as it relates to the Offered
Securities, to add the following other definitions, all in the appropriate
alphabetical sequence:
"144A GLOBAL SECURITIES" has the meaning provided in Section 2.1.
"ADDITIONAL SECURITIES" means, with respect to the Offered
Securities of any series, any additional Securities of such series which
may be issued under the Indenture from time to time pursuant to a
"re-opening" of such series of Offered Securities, as contemplated by
Section 2(a) of the Fourth Supplemental Indenture.
"AGENT MEMBERS" means members of, or participants in, the
Depositary.
"CALCULATION AGENT" means JPMorgan Chase Bank, as Calculation
Agent, or its successor in such capacity pursuant to the Calculation
Agreement.
"CALCULATION AGREEMENT" means the Calculation Agent Agreement
dated as of March 6, 2002 between the Issuer and JPMorgan Chase Bank, as
calculation agent (or any successor thereto), as the same may be amended
or supplemented from time to time.
"CLOSING DATE" means March 12, 2002.
"DTC LEGEND" means, with respect to the Offered Securities of any
series, a legend substantially in the form of the legends appearing in
the fourth and fifth paragraphs of Exhibit X-0, X-0, X-0, X-0 or A-5 to
the Fourth Supplemental Indenture, as the case may be.
"EXCHANGE SECURITIES" means Securities of any series which are
issued pursuant to the Indenture in exchange for other Offered
Securities of such series in an exchange offer pursuant to an effective
registration statement under the Securities Act, whether pursuant to the
Registration Rights Agreement or otherwise.
"FINAL MATURITY DATE," when used with respect to the Tranche 1
Securities, means September 15, 2003, when used with respect to Tranche
2
2
Securities, means March 15, 2005, when used with respect to the Tranche
3 Securities, means March 15, 2007, when used with respect to the
Tranche 4 Securities, means March 15, 2012, and when used with respect
to the Tranche 5 Securities, means March 15, 2032.
"FOURTH SUPPLEMENTAL INDENTURE" means the Fourth Supplemental
Indenture dated as of March 12, 2002 between the Issuer and the Trustee,
as originally executed and delivered or, if amended or supplemented as
provided in this Indenture, as so amended or supplemented or both, and
shall include the form and terms of each series of Offered Securities
established thereby.
"GLOBAL OFFERED SECURITIES" has the meaning provided in Section
2.1. For purposes of clarity, it is hereby confirmed that the Global
Offered Securities constitute Global Securities (as defined elsewhere in
this Indenture).
"INITIAL PURCHASERS" means the initial purchasers named in the
Purchase Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"NON-U.S. PERSON" means a Person who is not a "U.S. person" (as
defined in Regulation S).
"OFFERED SECURITIES" means the five series of Securities issued
pursuant to this Indenture designated as the Floating Rate Notes due
2003, the 5.50% Notes due 2005, the 6.125% Notes due 2007, the 6.75%
Notes due 2012, and the 7.375% Debentures due 2032, respectively,
including, with respect to the Securities of each such series, the
Securities of such series initially issued on the Closing Date, any
Exchange Securities of such series issued in exchange for any other
Offered Securities of such series, and any other Offered Securities of
such series issued after the Closing Date under this Indenture.
"OFFSHORE TRANSACTION" has the meaning set forth in Regulation S.
"PHYSICAL SECURITIES" has the meaning provided in Section 2.1.
"PRIVATE PLACEMENT LEGEND" means, with respect to the Offered
Securities of any series, a legend substantially in the form of the
legends appearing in the first three paragraphs of Exhibit X-0, X-0,
X-0, X-0 or A-5 to the Fourth Supplemental Indenture, as the case may
be.
"PURCHASE AGREEMENT" means the Purchase Agreement dated March 6,
2002 between the Issuer and Xxxxxx Xxxxxxx & Co. Incorporated and X.X.
Xxxxxx Securities Inc, as representatives of the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
3
"REGISTRATION RIGHTS AGREEMENT" means either (1) the Registration
Rights Agreement dated March 12, 2002 between the Issuer and Xxxxxx
Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities Inc., as
representatives of the Initial Purchasers, or (2) with respect to any
subsequent issuance of Additional Securities of any series in a
transaction exempt from the registration requirements of the Securities
Act, any other registration rights agreement, if any, entered into by
the Issuer and the other parties thereto in connection with any such
issuance, or any or all of the foregoing, as the context shall require.
"REGULATION S" means Regulation S under the Securities Act or any
successor thereto.
"REGULATION S GLOBAL SECURITIES" has the meaning provided in
Section 2.1.
"REGULATION S PHYSICAL SECURITIES" has the meaning provided in
Section 2.1.
"RULE 144A" means Rule 144A under the Securities Act or any
successor thereto.
"RULE 144" means Rule 144 under the Securities Act or any
successor thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TRANCHE 1 SECURITIES" means the series of Securities issued
pursuant to this Indenture designated as the Floating Rate Notes due
2003, including Tranche 1 Securities initially issued on the Closing
Date, any Exchange Securities of such series issued in exchange for any
other Tranche 1 Securities, and any Additional Securities of such series
issued after the Closing Date under this Indenture. For purposes of this
Indenture, all Tranche 1 Securities, including, without limitation,
Exchange Securities of such series and Additional Securities of such
series, shall constitute a single series of Securities under this
Indenture.
"TRANCHE 2 SECURITIES" means the series of Securities issued
pursuant to this Indenture designated as the 5.50% Notes due 2005,
including Tranche 2 Securities initially issued on the Closing Date, any
Exchange Securities of such series issued in exchange for any other
Tranche 2 Securities, and any Additional Securities of such series
issued after the Closing Date under this Indenture. For purposes of this
Indenture, all Tranche 2 Securities, including, without limitation,
Exchange Securities of such series and Additional Securities of such
series, shall constitute a single series of Securities under this
Indenture.
"TRANCHE 3 SECURITIES" means the series of Securities issued
pursuant to this Indenture designated as the 6.125% Notes due 2007,
including Tranche 3 Securities initially issued on the Closing Date, any
Exchange Securities of such series issued in exchange for any other
Tranche 3 Securities, and any Additional
4
Securities of such series issued after the Closing Date under this
Indenture. For purposes of this Indenture, all Tranche 3 Securities,
including, without limitation, Exchange Securities of such series and
Additional Securities of such series, shall constitute a single series
of Securities under this Indenture.
"TRANCHE 4 SECURITIES" means the series of Securities issued
pursuant to this Indenture designated as the 6.75% Notes due 2012,
including Tranche 4 Securities initially issued on the Closing Date, any
Exchange Securities of such series issued in exchange for any other
Tranche 4 Securities, and any Additional Securities of such series
issued after the Closing Date under this Indenture. For purposes of this
Indenture, all Tranche 4 Securities, including, without limitation,
Exchange Securities of such series and Additional Securities of such
series, shall constitute a single series of Securities under this
Indenture.
"TRANCHE 5 SECURITIES" means the series of Securities issued
pursuant to this Indenture designated as the 7.375% Debentures due 2032,
including Tranche 5 Securities initially issued on the Closing Date, any
Exchange Securities of such series issued in exchange for any other
Tranche 5 Securities, and any Additional Securities of such series
issued after the Closing Date under this Indenture. For purposes of this
Indenture, all Tranche 5 Securities, including, without limitation,
Exchange Securities of such series and Additional Securities of such
series, shall constitute a single series of Securities under this
Indenture.
"U.S. PHYSICAL SECURITIES" has the meaning provided in Section
2.1."
SECTION 2. Creation of the Offered Securities. Pursuant to Section 2.3
of the Indenture, there are hereby created five new series of Securities
designated as the "Floating Rate Notes due 2003," the "5.50% Notes due 2005,"
the "6.125% Notes due 2007," the "6.75% Notes due 2012" and the "7.375%
Debentures due 2032," respectively. The Tranche 1 Securities, Tranche 2
Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities
shall have the following respective terms:
(a) The aggregate principal amount of Tranche 1 Securities, Tranche 2
Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities
that may be authenticated and delivered under the Indenture is initially limited
to $500,000,000, $1,000,000,000, $1,000,000,000, $1,750,000,000 and
$1,250,000,000, respectively, except, in the case of any such series of Offered
Securities, for Offered Securities of such series authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of, other
Offered Securities of such series pursuant to Sections 2.2A, 2.8, 2.9, 2.11,
2.12, 2.13, 8.5 or 12.3 of the Indenture and including, without limitation,
Exchange Securities of such series which have been registered under the
Securities Act and issued in exchange for Offered Securities of such series in
an exchange offer pursuant to the Registration Rights Agreement. However, any
such series may be re-opened from time to time by the Issuer for the issuance of
Additional Securities of such series, without the consent of the Holders, so
long as any such Additional Securities of such series have the same form and
terms (other than the date of issuance and, if applicable, the date from which
interest thereon shall begin to accrue, and except that the form of such
Additional Securities may refer to a different Registration Rights Agreement
than the Offered Securities of
5
such series issued on the Closing Date and such Additional Securities, if issued
pursuant to a registration statement which is effective under the Securities
Act, need not bear the Private Placement Legend and may omit the paragraph
included in Exhibit X-0, X-0, X-0, X-0 or A-5 hereto, as the case may be, which
refers to the Registration Rights Agreement), and carry the same right to
receive accrued and unpaid interest, as the Offered Securities of such series
theretofore issued; provided, however, that, notwithstanding the foregoing, a
series may not be reopened if the Issuer has effected satisfaction and discharge
or defeasance with respect to such series pursuant to Section 10.1(A) or 10.1(B)
of the Indenture; and provided, further, that no Additional Securities of any
series may be issued at a price that would cause such Additional Securities to
have "original issue discount" within the meaning of Section 1273 of the
Internal Revenue Code of 1986, as amended.
(b) The Offered Securities of each series are to be issuable only as
Registered Securities without Coupons. The Offered Securities of each series may
be issued as either Physical Securities or Global Offered Securities, or both,
the initial Depositary for the Global Offered Securities of each series shall be
The Depository Trust Company and the depositary arrangements with respect to the
Global Offered Securities of each series shall be those employed by whomever
shall be the Depositary with respect to the Global Offered Securities of such
series from time to time.
(c) The Offered Securities issued on the Closing Date shall be sold by
the Issuer to the Initial Purchasers named in the Purchase Agreement (the form,
terms, execution and delivery of such Purchase Agreement being hereby ratified
and approved in all respects). The initial offering price of the Tranche 1
Securities issued on the Closing Date shall be 100% of the principal amount
thereof plus accrued interest, if any, from March 12, 2002.
The initial offering price of the Tranche 2 Securities issued on the
Closing Date shall be 99.863% of the principal amount thereof plus accrued
interest, if any, from March 12, 2002.
The initial offering price of the Tranche 3 Securities issued on the
Closing Date shall be 99.867% of the principal amount thereof plus accrued
interest, if any, from March 12, 2002.
The initial offering price of the Tranche 4 Securities issued on the
Closing Date shall be 99.354% of the principal amount thereof plus accrued
interest, if any, from March 12, 2002.
The initial offering price of the Tranche 5 Securities issued on the
Closing Date shall be 98.703% of the principal amount thereof plus accrued
interest, if any, from March 12, 2002.
(d) The Final Maturity Dates of the Tranche 1 Securities, Tranche 2
Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities
on which the principal thereof is due and payable shall be the respective dates
set forth in the definition of "Final Maturity Date" appearing in Section 1 of
this Fourth Supplemental Indenture.
(e) The principal of the Tranche 1 Securities will bear interest at a
per annum rate equal to LIBOR (as defined in Exhibit A-1 attached hereto),
adjusted quarterly, plus 1.125% per annum, all in the manner and on the terms
and conditions set forth in Exhibit A-1 attached hereto. Interest on the Tranche
1 Securities will accrue from March 12, 2002 or from the most recent date to
which interest has been paid or duly provided for on the Tranche 1 Securities,
6
payable quarterly in arrears on each Interest Payment Date (as defined in
Exhibit A-1 hereto), commencing June 15, 2002, and at maturity. Interest payable
on any Interest Payment Date for the Tranche 1 Securities will, subject to
certain exceptions provided in the Indenture, be paid to the Persons in whose
names the Tranche 1 Securities are registered at the close of business on the
15th calendar day (whether or not a Floating Rate Business Day (as defined in
Exhibit A-1 hereto)) next preceding that Interest Payment Date; provided that
interest payable on the Final Maturity Date of the Tranche 1 Securities will be
paid to the Persons to whom principal is paid. Interest on the Tranche 1
Securities will be calculated on the basis of the actual number of days in the
applicable period divided by 360. No additional amounts of the nature referred
to in subparagraph (15) of Section 2.3 of the Indenture shall be payable on the
Tranche 1 Securities.
The interest rate on the Tranche 1 Securities will in no event be higher
than the maximum rate permitted by New York law as the same may be modified by
United States law of general application.
The Issuer covenants and agrees that, so long as any of the Tranche 1
Securities remains Outstanding, there shall at all times be a Calculation Agent
for the purpose of the Tranche 1 Securities. In the event of the Calculation
Agent being unable or unwilling to continue to act as the Calculation Agent for
the Tranche 1 Securities or in the case of the Calculation Agent failing duly to
establish the rate of interest on the Tranche 1 Securities for any Interest
Period (as defined in Exhibit A-1 attached hereto), the Issuer shall appoint
another bank of recognized standing in the United States as Calculation Agent.
The Calculation Agent may not resign its duties, nor may the Issuer remove the
Calculation Agent, without a successor having been appointed as aforesaid. The
Calculation Agent shall determine the interest rate on the Tranche 1 Securities
as of each Interest Determination Date (as defined in Exhibit A-1 hereto). The
covenants, agreements and other provisions set forth in this paragraph are
solely for the benefit of the Holders from time to time of the Tranche 1
Securities.
(f) The principal of the Tranche 2 Securities, Tranche 3 Securities,
Tranche 4 Securities and Tranche 5 Securities shall bear interest at the rate of
5.50% per annum, 6.125% per annum, 6.75% per annum and 7.375% per annum,
respectively, from March 12, 2002 or from the most recent date to which interest
has been paid or duly provided for on the Offered Securities of the applicable
series, payable semiannually in arrears on March 15 and September 15 of each
year, commencing September 15, 2002, which interest shall (subject to certain
exceptions provided in the Indenture) be paid to the Persons in whose names the
Offered Securities of such series are registered at the close of business on the
March 1 or September 1, as the case may be, immediately preceding such interest
payment dates. Interest on the Offered Securities of each series (other than the
Tranche 1 Securities) will be computed on the basis of a 360-day year of twelve
30-day months. No additional amounts of the nature referred to in subparagraph
(15) of Section 2.3 of the Indenture shall be payable on the Tranche 2
Securities, Tranche 3 Securities, Tranche 4 Securities or Tranche 5 Securities.
(g) The principal of and premium, if any, and interest on the Offered
Securities of each series shall be payable, the Offered Securities of each
series may be surrendered for registration of transfer and exchange, and notices
and demands to or upon the Issuer in respect of the Offered Securities of each
series or the Indenture may be served, at the agency of the Issuer maintained
for such purposes from time to time in the Borough of Manhattan, The City of New
7
York, and the Issuer hereby appoints the Trustee as trustee, paying agent,
transfer agent and registrar for the Offered Securities of each series and
designates the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, as the Issuer's agency for the foregoing
purposes; provided, however, that the Issuer, subject to the applicable
provisions of the Indenture, may, with respect to the Offered Securities of any
series, appoint another Person to be the registrar, transfer agent or paying
agent, and appoint additional registrars, transfer agents and paying agents,
with respect to the Offered Securities of any series so long as the Issuer shall
at all times maintain an agency for the foregoing purposes in the Borough of
Manhattan, The City of New York for the Offered Securities of each series.
(h) The Tranche 1 Securities will not be subject to redemption at the
option of the Issuer prior to their Final Maturity Date. The Offered Securities
of each other series may be redeemed by the Issuer, in whole or from time to
time in part, at the option of the Issuer on any date upon not less than 30 nor
more than 60 days notice given as provided in the Indenture, at a redemption
price calculated as provided in the respective form of the Offered Securities of
such series attached hereto as Exhibit X-0, Xxxxxxx X-0, Exhibit A-4 or Exhibit
A-5, as the case may be, plus accrued and unpaid interest on the principal
amount of the Offered Securities of such series being redeemed to the applicable
redemption date; provided that payments of interest on the Offered Securities of
such series that are due and payable on a date on or prior to a date fixed for
redemption of the Offered Securities of such series will be payable to the
Holders of the Offered Securities of such series registered as such at the close
of business on the relevant record dates according to their terms and the terms
and provisions of the Indenture.
Any redemption of Offered Securities of any series shall be made on the
other terms and conditions set forth in the Indenture.
(i) The Offered Securities of each series shall not be repayable or
redeemable at the option of the Holders prior to the Final Maturity Date of the
Offered Securities of such series (provided that nothing in this Fourth
Supplemental Indenture shall limit the right of the Trustee or the Holders of
the Offered Securities of any series to declare the principal of, and accrued
and unpaid interest on, the Offered Securities of such series to be immediately
due and payable as provided in Article Five of the Indenture) and shall not be
subject to a sinking fund or analogous provision.
(j) The principal of, premium, if any, and interest on the Offered
Securities of each series shall be payable in such coin or currency of the
United States of America as of the time of payment shall be legal tender for the
payment of public and private debts.
(k) To the extent that any provision of the Indenture or the Offered
Securities of any series provides for the payment of interest on overdue
principal of, or premium, if any, or interest (including, without limitation,
any additional interest which may be payable pursuant to a Registration Rights
Agreement) on, the Offered Securities of such series, then, to the extent
permitted by law, interest on such overdue principal, premium, if any, and
interest on the Offered Securities of such series shall accrue at the per annum
rate of interest borne by the Offered Securities of such series or, in the case
of the Tranche 1 Securities, at the per annum rate of interest borne by the
Tranche 1 Securities as such interest rate may be adjusted from time to time in
accordance with the terms of the Tranche 1 Securities (and, if additional
interest shall at any
8
time accrue on the Offered Securities of any series pursuant to a Registration
Rights Agreement, then the per annum interest rate on the Offered Securities of
such series for each day on which such additional interest shall accrue shall,
for purposes of any such provision of the Indenture, be deemed to be equal to
(1) in the case of the Tranche 1 Securities, the sum of LIBOR for such day plus
1.125% per annum plus the per annum rate at which such additional interest shall
accrue on the Tranche 1 Securities for such day, (2) in the case of the Tranche
2 Securities, 5.50% per annum plus the per annum rate at which such additional
interest shall accrue on the Tranche 2 Securities for such day, (3) in the case
of the Tranche 3 Securities, 6.125% per annum plus the per annum rate at which
such additional interest shall accrue on the Tranche 3 Securities for such day,
(4) in the case of the Tranche 4 Securities, 6.75% per annum plus the per annum
rate at which such additional interest shall accrue on the Tranche 4 Securities
for such day and (5) in the case of the Tranche 5 Securities, 7.375% per annum
plus the per annum rate at which such additional interest shall accrue on the
Tranche 5 Securities for such day), and, anything in the Indenture to the
contrary notwithstanding, in the case of any requirement in the Indenture that
the Issuer pay (or that the Trustee distribute) interest on overdue principal
of, or premium, if any, or interest on, the Offered Securities of any series,
such payment or distribution shall only be required to the extent it is
permitted by applicable law.
(l) As used in the Indenture with respect to the Offered Securities of
any series which are redeemable at the option of the Issuer and in the
certificates evidencing the Offered Securities of such series, all references to
"premium" on the Offered Securities of such series shall mean any amounts (other
than accrued interest) payable upon the redemption of any Offered Security of
such series in excess of 100% of the principal amount of such Offered Security.
In the event that any reference is made in this Fourth Supplemental Indenture to
"premium" in respect of the Tranche 1 Securities (which are not redeemable at
the option of the Issuer prior to their Final Maturity Date), such references to
"premium" shall be disregarded insofar as relates to the Tranche 1 Securities.
(m) The following additional terms shall be applicable with respect to
the Offered Security of each series:
(1) the phrase "due or to become due to such date of
maturity" appearing in the 36th and 37th lines of Section 10.1(A)
of the Prior Indenture shall be deleted and replaced with the
phrase "due or to become due on or prior to such date of maturity
or redemption, as the case may be,";
(2) the Issuer shall not act as its own paying agent for
purposes of Section 10.2 of the Indenture;
(3) all references in the Indenture to the "Secretary" and
any "Assistant Secretary" of the Issuer shall be deemed to
include a reference to the Corporate Secretary and any Assistant
Corporate Secretary, respectively, of the Issuer; and
(4) the phrase "acquires by sale or conveyance
substantially all the assets" appearing in clause (i) of Section
9.1 of the Prior Indenture shall be
9
deleted and replaced with the phrase "acquires by sale or
conveyance all or substantially all the assets."
(n) The Tranche 1 Securities, Tranche 2 Securities, Tranche 3
Securities, Tranche 4 Securities and Tranche 5 Securities shall have such
additional terms and provisions as are set forth in the respective forms thereof
attached hereto as Exhibits X-0, X-0, X-0, X-0 and A-5, respectively, which
terms and provisions are hereby incorporated by reference in and made a part of
this Fourth Supplemental Indenture and the Indenture as if set forth in full
herein and therein.
SECTION 3. Amendments to Article Two.
(a) Section 2.1 of the Prior Indenture is hereby amended, solely insofar
as relates to the Offered Securities, by replacing it in its entirety with the
following:
"Section 2.1. Form of Offered Securities. (a) The Tranche 1
Securities, Tranche 2 Securities, Tranche 3 Securities, Tranche 4
Securities and Tranche 5 Securities shall be substantially in the
respective forms annexed to the Fourth Supplemental Indenture as
Exhibits X-0, Xxxxxxx X-0, Exhibit X-0, Xxxxxxx X-0 and Exhibit A-5,
respectively, which Exhibits are hereby incorporated in and expressly
made a part of this Indenture, and the Offered Securities of each series
may have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have
imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as
may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers
executing the Offered Securities of such series; provided that the form
of any Additional Securities of any series may have such variations as
are permitted by paragraph (a) of Section 2 of the Fourth Supplemental
Indenture; and provided, further, that Physical Securities of any series
may deviate (in form but not in substance) from the form attached as
Exhibit X-0, X-0, X-0, X-0 or A-5, as the case may be, to the Fourth
Supplemental Indenture in such respects as any Officer (as defined
below) of the Issuer may approve as necessary or appropriate to protect
against fraud or forgery (such approval to be conclusively evidenced by
the execution of any such Physical Security by any such Officer),
including without limitation, by changing the form of the Physical
Securities of such series so that they have a "face" and a "reverse"
and/or by moving the signatures and/or Trustee's certificate of
authentication so that they appear on the same page as the principal
amount of the Physical Securities (and, if the Physical Securities of
any series shall be issued in a form that deviates from the form
attached hereto as contemplated by this proviso, then all or any of the
Global Offered Securities of such series also may be issued in such
form); and provided, further, that temporary Physical Securities of any
series may be issued in substantially the respective form annexed as
Exhibit X-0, X-0, X-0, X-0 or A-5, as the case may be, to the Fourth
Supplemental Indenture even though the definitive Physical Securities of
such series are issued in a different form as contemplated by the
immediately preceding proviso. Each Offered Security shall
10
be dated the date of its authentication. As used in this Section 2.1(a),
the term "OFFICER" means the chairman of the Board of Directors, any
vice chairman of the Board of Directors, the president, any vice
president or the treasurer of the Issuer.
"The terms and provisions contained in the forms of the Offered
Securities annexed as Exhibits X-0, X-0, X-0, X-0 and A-5 to the Fourth
Supplemental Indenture shall constitute, and are hereby expressly made,
a part of this Indenture. To the extent applicable, the Issuer and the
Trustee, by their execution and delivery of the Fourth Supplemental
Indenture, expressly agree to such terms and provisions and to be bound
thereby.
The Offered Securities of any series initially offered and sold
in reliance on Rule 144A shall be issued initially in the form of one or
more permanent Global Securities in registered form ("144A GLOBAL
SECURITIES"), deposited with the Trustee, as custodian for the
Depositary, duly executed by the Issuer and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of the 144A
Global Securities of any series may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
The Offered Securities of any series initially offered and sold
in offshore transactions in reliance on Regulation S shall be issued
initially in the form of one or more permanent Global Securities in
registered form ("REGULATION S GLOBAL SECURITIES") deposited with the
Trustee, as custodian for the Depositary, duly executed by the Issuer
and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the Regulation S Global Securities of any series may
from time to time be increased or decreased by adjustments made on the
records of the Trustee, as custodian for the Depositary or its nominee,
as hereinafter provided.
The Offered Securities of each series initially offered and sold
to Institutional Accredited Investors that are not QIBs shall be issued
in the form of certificated Offered Securities of such series in
registered form ("U.S. PHYSICAL SECURITIES"). The Offered Securities of
any series issued pursuant to the second sentence of Section 2.12(b) of
this Indenture in exchange for interests in the Regulation S Global
Securities of such series shall be issued in the form of certificated
Offered Securities of such series in registered form ("REGULATION S
PHYSICAL SECURITIES"). The Regulation S Physical Securities and the U.S.
Physical Securities are sometimes collectively referred to herein as the
"PHYSICAL SECURITIES." The 144A Global Securities and the Regulation S
Global Securities are sometimes collectively referred to as the "GLOBAL
OFFERED SECURITIES".
"The definitive Offered Securities of each series shall be typed,
printed, lithographed or engraved or produced by any combination of
these methods or may be produced in any other manner permitted by the
rules of any securities exchange on which the Offered Securities of such
series may be listed, or as
11
determined by the officers of the Issuer executing the Offered
Securities of such series, as evidenced by their execution of the
Offered Securities of such series.
"(b) Restrictive Legends. (i) Unless and until an Offered
Security of any series is exchanged for an Exchange Security of the same
series in an exchange offer pursuant to a registration statement which
is effective under the Securities Act (whether pursuant to the
Registration Rights Agreement or otherwise) or sold or otherwise
transferred pursuant to a registration statement which is effective
under the Securities Act (whether pursuant to the Registration Rights
Agreement or otherwise) or pursuant to Rule 144 under the Securities Act
(if available), (A) each 144A Global Security of such series and each
U.S. Physical Security of such series shall bear the Private Placement
Legend and (B) each Regulation S Physical Security of such series and
each Regulation S Global Security of such series shall bear the Private
Placement Legend until at least the 41st day after the Closing Date and
receipt by the Issuer and the Trustee of a certificate substantially in
the form of Exhibit B to the Fourth Supplemental Indenture (and after
such 41st day and, upon receipt of such certificate, the Private
Placement Legend may be removed from the Regulation S Physical Security
of such series or the Regulation S Global Security of such series, as
the case may be). Notwithstanding the foregoing, to the extent that a
certificate substantially in the form of Exhibit B to the Fourth
Supplemental Indenture shall be delivered with respect to a portion (but
not all) of the principal amount of a Regulation S Global Security of
any series bearing the Private Placement Legend, then the Issuer shall
execute and the Trustee shall authenticate and deliver a Regulation S
Global Security of such series not bearing the Private Placement Legend
in exchange for only such portion of the principal amount of the
Regulation S Global Security of such series bearing the Private
Placement Legend in respect of which such certification shall have been
so delivered, and the Trustee shall reflect on its books and records the
date and a decrease in the principal amount of such Regulation S Global
Security of such series bearing the Private Placement Legend and a like
increase in the principal amount of the Regulation S Global Security of
such series not bearing the Private Placement Legend.
"(ii) Each Global Offered Security shall bear the DTC Legend."
(b) Section 2.8 of the Prior Indenture is hereby supplemented, solely
insofar as relates to the Offered Securities, by adding the following paragraph
at the end of such Section:
"Notwithstanding the foregoing provisions of this Section 2.8, no
exchanges of Offered Securities of any series for Exchange Securities of
such series shall occur until a registration statement shall have been
declared effective by the Commission with respect to the Exchange
Securities of such series and unless such exchanges are effected
pursuant to such effective registration statement. Any Offered
Securities of any series that are exchanged for Exchange Securities of
such series shall be cancelled by the Trustee."
12
(c) Article Two of the Prior Indenture is hereby supplemented and
amended, solely insofar as relates to the Offered Securities, by adding at the
end thereof the following new Sections 2.12, 2.13 and 2.14:
"Section 2.12. Book-Entry Provisions for Global Securities. (a)
The 144A Global Securities of each series and Regulation S Global
Securities of each series shall be issued in accordance with the
provisions of paragraph (a) of Section 2.2A of this Indenture and, for
purposes of Section 2.2A of this Indenture, it is expressly understood
and agreed that interests in Global Offered Securities of any series may
be exchanged for Physical Securities of such series, and that Physical
Securities of any series may be exchanged for interests in Global
Offered Securities of such series, as provided in this Section 2.12 and
in Section 2.13 of this Indenture.
"(b) Global Offered Securities and interests in Global Offered
Securities may be transferred or exchanged, and shall be subject to the
restrictions on transfer and exchange, as provided in this Indenture. In
addition, U.S. Physical Securities of any series and Regulation S
Physical Securities of any series shall be transferred to all beneficial
owners of Global Offered Securities of such series in exchange for their
beneficial interests in the 144A Global Securities of such series and
the Regulation S Global Securities of such series, respectively, under
the circumstances set forth in (c)(i), (ii) or (iii) of Section 2.2A of
this Indenture.
"(c) Any beneficial interest in a Global Offered Security of any
series that is transferred to a Person who takes delivery in the form of
an interest in another Global Offered Security of such series will, upon
transfer, cease to be an interest in the first such Global Offered
Security and become an interest in the other such Global Offered
Security and, accordingly, will thereafter be subject to all transfer
restrictions, if any, and other procedures applicable to beneficial
interests in such other Global Offered Security for as long as it
remains such an interest.
"(d) In connection with any transfer of a portion of the
beneficial interests in a 144A Global Security of any series or
Regulation S Global Security of any series to beneficial owners (other
than transfers of the entire 144A Global Security of such series or the
entire Regulation S Global Security of such series pursuant to the
second sentence of paragraph (b) of this Section 2.12), the Trustee
shall reflect the date and a decrease in the principal amount of the
144A Global Securities of such series or Regulation S Global Securities
of such series, as the case may be, in an amount equal to the principal
amount of the beneficial interest in such Global Offered Securities to
be transferred, and the Issuer shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of such
series or Regulation S Physical Securities of such series, as the case
may be, of like tenor and principal amount.
"(e) In connection with the transfer of the entire 144A Global
Security of any series or Regulation S Global Security of any series to
beneficial owners
13
pursuant to the second sentence of paragraph (b) of this Section 2.12,
the 144A Global Security of such series or Regulation S Global Security
of such series, as the case may be, shall be deemed to be surrendered to
the Trustee for cancellation, and the Issuer shall execute, and the
Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in
the 144A Global Security of such series or Regulation S Global Security
of such series, as the case may be, an equal aggregate principal amount
of U.S. Physical Securities of such series or Regulation S Physical
Securities of such series, respectively, of authorized denominations.
"(f) Any U.S. Physical Security of any series delivered in
exchange for an interest in the 144A Global Security of such series
pursuant to paragraph (b), (d) or (e) of this Section 2.12 shall, except
as otherwise provided by paragraph (e) of Section 2.13, bear the legend
regarding transfer restrictions applicable to such U.S. Physical
Security required by Section 2.1(b).
"(g) Any Regulation S Physical Security of any series delivered
in exchange for an interest in the Regulation S Global Security of such
series pursuant to paragraph (b), (d) or (e) of this Section 2.12 shall,
except as otherwise provided by paragraph (e) of Section 2.13, bear the
legend regarding transfer restrictions applicable to such Regulation S
Physical Security required by Section 2.1(b).
"(h) The Holder of a Global Offered Security of any series may
grant proxies and otherwise authorize any Person, including Agent
Members and Persons that may hold interests through Agent Members, to
take any action which a Holder is entitled to take under this Indenture
or the Offered Securities of such series.
"(i) Unless the Issuer shall otherwise determine in the exercise
of its sole discretion, (x) Physical Securities of any series may not be
issued upon transfer of or in exchange for interests in Global Offered
Securities of such series except (1) in connection with transfers to
Institutional Accredited Investors or (2) upon the exchange of the
entire Global Offered Securities of such series for Physical Securities
of such series pursuant to the second sentence of paragraph (b) of this
Section 2.12, and (y) upon the transfer of U.S. Physical Securities of
such series to a QIB pursuant to Rule 144A or to a Non-U.S. Person
pursuant to Regulation S, or upon the transfer of Regulation S Physical
Securities of such series to a QIB pursuant to Rule 144A, the transferee
will, unless the entire Global Offered Securities of such series have
been exchanged for Physical Securities of such series pursuant to the
second sentence of paragraph (b) of this Section 2.12, take the Offered
Securities of such series in the form of an interest in the 144A Global
Securities of such series or the Regulation S Global Securities of such
series, as the case may be.
"(j) In addition to the other requirements of this Indenture, the
Trustee shall make an appropriate notation on the schedule attached to
each Global
14
Offered Security of any series to reflect any increases or decreases in
the principal amount thereof resulting from transfers or exchanges of
Offered Securities of such series or of interests in Global Offered
Securities of such series made in accordance with this Indenture.
"Section 2.13. Special Transfer Provisions. Unless and until an
Offered Security of any series is transferred or exchanged under a
registration statement which is effective under the Securities Act
(whether pursuant to the Registration Rights Agreement or otherwise) or
pursuant to Rule 144 under the Securities Act (if available), the
following provisions shall apply:
"(a) Transfers to Non-QIB Institutional Accredited Investors. The
following provisions shall apply with respect to the registration of any
proposed transfer of an Offered Security of any series to any
Institutional Accredited Investor which is not a QIB (excluding Non-U.S.
Persons):
"(i) The Trustee shall register the transfer of any Offered
Security of such series, whether or not such Offered Security bears the
Private Placement Legend, if (x) the requested transfer is after the
time period referred to in Rule 144(k) under the Securities Act or (y)
the proposed transferee has delivered to the Trustee (A) a certificate
substantially in the form of Exhibit C to the Fourth Supplemental
Indenture and (B) if requested by the Issuer, an opinion of counsel
reasonably acceptable to the Issuer to the effect that the transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act and, if
the Offered Security to be transferred consists of either a Regulation S
Physical Security prior to the removal of the Private Placement Legend,
an interest in a Regulation S Global Security prior to the removal of
the Private Placement Legend, a U.S. Physical Security or a 144A Global
Security, the proposed transferor shall have checked the box provided
for on the form of such Offered Security, or shall have otherwise
advised the Issuer and the Trustee in writing, that the transfer is
being been made to an Institutional Accredited Investor purchasing for
its own account, or for the account of another Institutional Accredited
Investor, in a minimum principal amount of $250,000 of Offered
Securities of such series; and
"(ii) Subject to paragraph (c) of this Section 2.13, if the
proposed transferor is an Agent Member holding a beneficial interest in
a Global Offered Security of such series, upon receipt by the Trustee of
(x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Trustee's
procedures, the Trustee shall reflect on its book and records the date
and a decrease in the principal amount of such Global Offered Security
of such series in an amount equal to the principal amount of the
beneficial interest in such Global Offered Security of such series to be
transferred, and the Issuer shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like
tenor and amount.
15
"(b) Transfers to QIBs. The following provisions shall apply with
respect to the registration of any proposed transfer of a U.S. Physical
Security of any series, an interest in a 144A Global Security of any
series, a Regulation S Physical Security of any series prior to the
removal of the Private Placement Legend or an interest in a Regulation S
Global Security of any series prior to the removal of the Private
Placement Legend to a QIB (excluding Non-U.S. Persons):
"(i) If the Offered Security of such series to be transferred
consists of (x) either (A) a Regulation S Physical Security prior to the
removal of the Private Placement Legend or an interest in a Regulation S
Global Security of such series prior to the removal of the Private
Placement Legend or (B) a U.S. Physical Security of such series, the
Trustee shall register the transfer if such transfer is being made by a
proposed transferor who has checked the box provided for on the form of
Offered Security of such series stating, or has otherwise advised the
Issuer and the Trustee in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee whom the
transferor reasonably believes is a QIB and who has signed the
certification provided for on the form of Offered Security of such
series stating, or has otherwise advised the Issuer and the Trustee in
writing, that it is a QIB and is aware that such Offered Security is
being transferred in reliance on Rule 144A and that it is acquiring such
Offered Security for its own account or for the account of one or more
other QIBs over which it exercises sole investment discretion (in which
latter case it has given notice to each such account that such Offered
Security is being transferred in reliance on Rule 144A) or (y) an
interest in the 144A Global Securities of such series, the transfer of
such interest may be effected only through the book entry system
maintained by the Depositary.
"(ii) If the proposed transferee is an Agent Member and the
Offered Security of such series to be transferred consists of Physical
Securities of such series, upon receipt by the Trustee of the documents
referred to in clause (i) and instructions given in accordance with the
Depositary's and the Trustee's procedures, the Trustee shall reflect on
its books and records the date and an increase in the principal amount
of the 144A Global Securities of such series in an amount equal to the
principal amount of the Physical Securities of such series to be
transferred, and the Trustee shall cancel the Physical Securities of
such series so transferred.
"(c) Transfers of Interests in the Regulation S Global Securities
or Regulation S Physical Securities. The following provisions shall
apply with respect to any transfer of interests in the Regulation S
Global Securities of any series or Regulation S Physical Securities of
any series:
"(i) prior to the removal of the Private Placement Legend from a
Regulation S Global Security of any series or Regulation S Physical
Security of any series pursuant to Section 2.1(b), the Trustee shall
refuse to register such transfer unless such transfer complies with
Section 2.13(b) or Section 2.13(d), as the case may be; and
16
"(ii) after such removal, the Trustee shall register the transfer
of any such Offered Security without requiring any additional
certification.
"(d) Transfers to Non-U.S. Persons at Any Time. The following
provisions shall apply with respect to any transfer of an Offered
Security of any series to a Non-U.S. Person:
"(i) The Trustee shall register any proposed transfer to any
Non-U.S. Person if the Offered Security of such series to be transferred
is a U.S. Physical Security of such series or an interest in the 144A
Global Security of such series only upon receipt of a certificate
substantially in the form of Exhibit D to the Fourth Supplemental
Indenture from the proposed transferor.
"(ii) (a) If the proposed transferor is an Agent Member holding a
beneficial interest in a 144A Global Security of such series, upon
receipt by the Trustee of (x) the documents required by paragraph (i)
and (y) instructions in accordance with the Depositary's and the
Trustee's procedures, the Trustee shall reflect on its books and records
the date and a decrease in the principal amount of such 144A Global
Security of such series in an amount equal to the principal amount of
the beneficial interest in such 144A Global Security to be transferred,
and (b) if the proposed transferee is an Agent Member, upon receipt by
the Trustee of instructions given in accordance with the Depositary's
and the Trustee's procedures, the Trustee shall reflect on its books and
records the date and an increase in the principal amount of the
Regulation S Global Security of such series in an amount equal to the
principal amount of the U.S. Physical Securities of such series or the
144A Global Securities of such series, as the case may be, to be
transferred, and the Trustee shall cancel the U.S. Physical Securities
of such series, if any, so transferred or decrease the amount of the
144A Global Securities of such series, as the case may be.
"(e) Private Placement Legend. (i) Upon the registration of
transfer, exchange or replacement of Offered Securities of any series
not bearing the Private Placement Legend, the Trustee shall deliver
Offered Securities of such series that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of
Offered Securities of any series bearing the Private Placement Legend,
the Trustee shall deliver only Offered Securities of such series that
bear the Private Placement Legend unless (1) the Private Placement
Legend is no longer required by Section 2.1(b), (2) the circumstances
contemplated by paragraphs (a)(i)(x) or (c)(ii) of this Section 2.13
exist, (3) there is delivered to the Trustee an opinion of counsel
reasonably satisfactory to the Issuer and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act, (4) the transaction involves the exchange of Exchange
Securities of such series for Offered Securities of such series pursuant
to a registration statement which is effective under the Securities Act
(whether pursuant to the Registration Rights Agreement or otherwise), or
(5) the transaction involves a transfer of Offered Securities of such
series pursuant to a
17
registration statement (whether pursuant to the Registration Rights
Agreement or otherwise) which is effective under the Securities Act.
"(ii) After a transfer of any Offered Securities of any series
during the period of the effectiveness of any registration statement
(whether filed pursuant to the Registration Rights Agreement or
otherwise) which is effective under the Securities Act with respect to
such Offered Securities, all requirements pertaining to the Private
Placement Legend on such Offered Securities shall cease to apply and the
requirements that any such Offered Securities be issued in global form
shall continue to apply.
"(f) General. By its acceptance of any Offered Security bearing
the Private Placement Legend, each Holder of such an Offered Security
acknowledges the restrictions on transfer of such Offered Security set
forth in this Indenture and in the Private Placement Legend and agrees
that it will transfer such Offered Security only as provided in this
Indenture. The Trustee shall not register a transfer of any Offered
Security unless such transfer complies with the restrictions on transfer
of such Offered Security set forth in this Indenture. In connection with
any transfer of Offered Securities to an Institutional Accredited
Investor or in a transfer being made pursuant to Rule 904 under the
Securities Act or pursuant to Rule 144 under the Securities Act (if
available), each Holder agrees by its acceptance of the Offered
Securities to furnish the Trustee such certifications, legal opinions or
other information as the Issuer may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act; provided that the Trustee shall not be required to
determine (but may conclusively rely on a determination made by the
Issuer with respect to) the sufficiency of any such certifications,
legal opinions or other information.
"In case of any transfer or exchange of Offered Securities or
interests in Offered Securities bearing the Private Placement Legend,
the procedures and requirements for which are not addressed in detail in
this Section 2.13 or elsewhere in this Indenture, such transfer or
exchange will be subject to such procedures and requirements as may be
reasonably prescribed by the Issuer from time to time (and which shall
be consistent with the procedures and requirements set forth in this
Section 2.13) and, in the case of a transfer or exchange involving a
Global Offered Security or an interest therein, the procedures of the
Depositary. In case of any request for the removal of the Private
Placement Legend from an Offered Security, the procedures and
requirements for which are not addressed in detail in this Indenture,
the Issuer may permit the removal of such legend upon the receipt of
such legal opinions, certificates and other documents as it may
reasonably require to establish that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance
with the Securities Act.
"The Trustee shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.12 or this
Section 2.13 in accordance with its customary procedures. The Issuer
shall have the right to
18
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable
written notice to the Trustee.
"In the case of any transfer of a Physical Security (other than a
transfer or exchange under a registration statement which is effective
under the Securities Act (whether pursuant to the Registration Rights
Agreement or otherwise)) prior to the end of the time period under Rule
144(k), the transferor shall check the box provided for on the form of
such Physical Security, or otherwise advise the Issuer and Trustee in
writing, as to the manner of such transfer and submit such Physical
Security to the Trustee."
SECTION 4. Amendments to Article Three and Article Five.
(a) Article 3 of the Prior Indenture is hereby amended by inserting the
following new Section 3.9 in appropriate numerical order:
"SECTION 3.9 Covenant to Provide Guarantee; Termination of
Guarantee. The following provisions shall apply to the Securities of
each series (including, without limitation, each series of Securities
Outstanding on the date of the Fourth Supplemental Indenture or
originally issued on the date of the Fourth Supplemental Indenture)
unless otherwise specifically provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to
Section 2.3.
"(a) The Issuer will not cause or permit the Guarantor to
guarantee, directly or indirectly (a "BANK GUARANTEE"), any
indebtedness, borrowings or other obligations of the Issuer under any
Credit Agreement unless:
"(1) the GUARANTOR, the Issuer and the Trustee shall
execute and deliver an indenture supplemental hereto (a
"SUPPLEMENTAL INDENTURE"), containing provisions substantially in
the form of Exhibit E attached to the Fourth Supplemental
Indenture and which provisions shall be added as a new Article of
this Indenture, pursuant to which the Guarantor shall
unconditionally guarantee the due and punctual payment of the
principal of, and premium, if any, and interest on, and any
sinking fund payments with respect to, all of the Securities and
any Coupons appertaining thereon when due, whether such
Securities are Outstanding on the date of such Supplemental
Indenture or are thereafter issued (other than any Securities of
a series (or Coupons appertaining thereto) if the terms of the
Securities of such series, as set forth in a Board Resolution,
Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3, expressly provide that the Securities of
such series are not entitled to the benefits of this Section
3.9(a)), and
"(2) such Supplemental Indenture shall have been executed
and delivered by the Guarantor, the Issuer and the Trustee and
shall have
19
become effective no later than the time that such Bank Guarantee
of the Guarantor shall become effective;
"provided that the Issuer will not be required to make a notation on the
Securities of any series to reflect the Guarantee or to endorse the
Guarantee on the Securities of any series if the Securities of such
series were originally issued prior to the date of such Supplemental
Indenture; and provided, further, that, upon the earlier of (a)
termination of all of the Guarantor's Bank Guarantees and (b)(i) the
effectiveness of the Weyerhaeuser/Willamette Merger and (ii) the
termination of the separate corporate existence of the Guarantor as a
result of such merger, and, in the case of both clause (a) and (b),
delivery by the Issuer to the Trustee of the Officers' Certificate and
Opinion of Counsel required by Section 3.9(n), the Guarantor shall be
released from all of its obligations under this Indenture (including,
without limitation, such Supplemental Indenture) and the Guarantee
(including, without limitation, the Guarantee endorsed on any Security)
and the Guarantee shall terminate (provided that the Issuer's
obligations under this Section 3.9(a) shall remain in effect (and, as a
result, the Issuer and the Guarantor may thereafter be required to enter
into another Supplemental Indenture pursuant to this Section 3.9(a))
unless and until the Issuer's obligations under this Section 3.9(a)
shall be terminated pursuant to Section 3.9(b)).
"(b) The provisions set forth in Section 3.9(a) shall terminate
upon (1) the effectiveness of the Weyerhaueser/Willamette Merger and (2)
the termination of the separate corporate existence of the Guarantor as
a result of such merger; provided that the Issuer shall have delivered
to the Trustee the Officers' Certificate and Opinion of Counsel required
by Section 3.9(n).
"(c) In the event that the covenant set forth in Section 3.9(a)
is terminated pursuant to Section 3.9(b) and, thereafter, the
Weyerhaeuser/Willamette Merger is set aside or reversed or the separate
corporate existence of the Guarantor is reinstated, then, to the fullest
extent permitted by applicable law:
"(1) Section 3.9(a) shall be automatically reinstated, and
"(2) if the Guarantor shall have been released from its
obligations under this Indenture and the Guarantee with respect
to the Securities of any series upon the effectiveness of the
Weyerhaeuser/Willamette Merger, the Guarantor's obligations under
this Indenture (including, without limitation, any applicable
Supplemental Indenture) and the Guarantee with respect to the
Securities of such series and any Coupons appertaining thereto
(including, without limitation, any Guarantee endorsed on a
Security of such series) shall be automatically reinstated,
"all as if the Weyerhaeuser/Willamette Merger had not taken place but
subject thereafter to termination of the covenant set forth in Section
3.9(a) upon the terms and conditions set forth in Section 3.9(b) and to
the release of the Guarantor's
20
obligations under this Indenture (including, without limitation, any
applicable Supplemental Indenture) and the Guarantee (including, without
limitation, the Guarantee endorsed on any Security) upon the terms and
conditions set forth in Section 3.9(a). If the Guarantor's obligations
under this Indenture are reinstated as provided in the immediately
preceding sentence, then the Events of Default set forth in Section
3.9(e), the amendments, supplements and restatements to this Indenture
effected pursuant to Sections 3.9(f), (g), (h) and (j), and the
parenthetical clause added to this Indenture pursuant to Section 4(b) of
the Fourth Supplemental Indenture shall also be automatically reinstated
but subject thereafter to termination of such Events of Default, such
amendments, supplements and restatements effected pursuant to Sections
3.9(f), (g), (h) and (j) and the parenthetical clause added to this
Indenture pursuant to Section 4(b) of the Fourth Supplemental Indenture
upon the terms and conditions set forth in Section 3.9(k). The Issuer
shall provide the Trustee with prompt written notice of any such
reinstatement.
"(d) If (i) this Indenture shall cease to be of further effect
with respect to the Securities of any series upon compliance by the
Issuer with the provisions of Section 10.1(A) hereof with respect to the
Securities of such series or (ii) the Issuer shall be deemed to have
paid and discharged the entire indebtedness on all the Securities of any
series and any Coupons appertaining thereto upon compliance by the
Issuer with the provisions of Section 10.1(B) hereof with respect to the
Securities of such series, then (unless the terms of the Securities of
such series, as set forth in a Board Resolution, Officers' Certificate
or indenture supplemental hereto provided pursuant to Section 2.3,
expressly provide otherwise) the Guarantor concurrently shall be
released, automatically and without further action on the part of the
Issuer, the Guarantor or the Trustee, from all of its obligations under
this Indenture (including, without limitation, any applicable
Supplemental Indenture) with respect to the Securities of such series
and any Coupons appertaining thereto and from all of its obligations
under its Guarantee with respect to the Securities of such series and
any Coupons appertaining thereto (including, without limitation, the
Guarantee endorsed on any Security of such series); provided that such
release shall not affect the Guarantor's obligations under this
Indenture (including, without limitation, any applicable Supplemental
Indenture) with respect to the Securities of any other series and any
Coupons appertaining thereto or its Guarantee of the Securities of any
other series or any Coupons appertaining thereto (including, without
limitation, the Guarantee endorsed on any such Security), all of which
shall remain in full force and effect.
"(e) In the event that the Guarantor enters into a Supplemental
Indenture pursuant to Section 3.9(a), such Supplemental Indenture will
also provide that the period appearing at the end of clause (g) of
Section 5.1 of this Indenture shall be deleted and replaced with "; or"
and that the following additional clauses shall be added immediately
after such clause (g), such additional clauses to be designated as
clauses (h), (i), and (j) of Section 5.1:
21
`(h) the Guarantor shall deny that it has any further
liability under its Guarantee of all or any of the Securities of
such series or any Coupons appertaining thereto or gives notice
to that effect or the Guarantor's Guarantee of all or any of the
Securities of such series or any Coupons appertaining thereto
shall cease for any reason to be in full force and effect or the
Guarantor's Guarantee of all or any of the Securities of such
series or any Coupons appertaining thereto is declared or judged
unenforceable or invalid in a final judgment or order issued by
any court or governmental authority of competent jurisdiction (in
each case other than by reason of the termination or release of
such Guarantee in accordance with the provisions of this Section
3.9), provided that this clause (h) shall not be applicable to
the Securities of such series if the terms of the Securities of
such series, as set forth in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to
Section 2.3, expressly provide that the Securities of such series
are not entitled to the benefit of Section 3.9(a); or
`(i) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Guarantor in
an involuntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Guarantor or for any
substantial part of its property or ordering the winding up or
liquidation of its affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days,
provided that this clause (i) shall not be applicable to the
Securities of such series if the terms of the Securities of such
series, as set forth in a Board Resolution, Officers' Certificate
or indenture supplemental hereto provided pursuant to Section
2.3, expressly provide that the Securities of such series are not
entitled to the benefit of Section 3.9(a); or
`(j) the Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Guarantor or for any substantial part of
its property, or make any general assignment for the benefit of
creditors, provided that this clause (j) shall not be applicable
to the Securities of such series if the terms of the Securities
of such series , as set forth in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to
Section 2.3, expressly provide that the
22
Securities of such series are not entitled to the benefit of
Section 3.9(a).'
"(f) In the event that the Guarantor enters into a Supplemental
Indenture pursuant to Section 3.9(a), the Supplemental Indenture shall
also provide that the second paragraph of Section 5.1 of this Indenture
shall be amended and restated to read in full as follows:
`If an Event of Default described in clause (a), (b), (c),
(d), (h), (i) or (j) above (if the Event of Default under clause
(d), (h), (i) or (j), as the case may be, is with respect to less
than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the
principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
series) of all Securities of such series and the interest accrued
thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable; provided that neither the Trustee nor the Holders of the
Securities of any series shall have the right to declare the
Securities of such series to be due and payable as aforesaid upon
the occurrence of an Event of Default described in clause (h),
(i) or (j) above if the terms of the Securities of such Series,
as set forth in a Board Resolution, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section 2.3,
expressly provide that the Securities of such series are not
entitled to the benefit of Section 3.9(a). If an Event of Default
described in clause (d), (h), (i) or (j) above (if the Event of
Default under clause (d), (h), (i) or (j), as the case may be, is
with respect to all series of Securities then Outstanding), (e)
or (f) occurs and is continuing, then and in each and every such
case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding and interest accrued thereon, if
any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.'
23
"(g) In the event that the Guarantor enters into a Supplemental
Indenture pursuant to Section 3.9(a), such Supplemental Indenture shall
also provide that the first paragraph of Section 5.10 of this Indenture
shall be amended and restated to read in full as follows:
`SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of such
series at the time Outstanding may on behalf of the Holders of
all the Securities of such series waive any past default or Event
of Default described in clause (c) of Section 5.1 (or, in the
case of an event specified in clause (d), (h), (i) or (j) of
Section 5.1 which relates to less than all series of Securities
then Outstanding, the Holders of a majority in aggregate
principal amount of the Securities then Outstanding affected
thereby (each series voting as a separate class) may waive any
such default or Event of Default, or, in the case of an event
specified in clause (d), (h), (i) or (j) (if the Event of Default
under clause (d), (h), (i) or (j), as the case may be, relates to
all series of Securities then Outstanding), (e) or (f) of Section
5.1 the Holders of Securities of a majority in principal amount
of all the Securities then Outstanding (voting as one class) may
waive any such default or Event of Default), and its consequences
except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver,
the Issuer, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.'
"(h) In the event that the Guarantor enters into a Supplemental
Indenture pursuant to Section 3.9(a), such Supplemental Indenture shall
also provide that Section 5.12 of this Indenture shall be amended and
restated to read in full as follows:
`SECTION 5.12 Right of Court to Require Filing of
Undertaking to Pay Costs. All parties to this Indenture agree,
and each Holder of any Security or Coupon by his acceptance
thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right
or remedy under this Indenture or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith
24
of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted
by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate
more than 10% in aggregate principal amount of the Securities of
such series, or, in the case of any suit relating to or arising
under clause (d), (h), (i) or (j) of Section 5.1 (if the suit
relates to Securities of more than one but less than all series),
10% in aggregate principal amount of Securities Outstanding
affected thereby, or in the case of any suit relating to or
arising under clause (d), (h), (i) or (j) (if the suit under
clause (d), (h), (i) or (j), as the case may be, relates to all
the Securities then Outstanding), (e) or (f) of Section 5.1, 10%
in aggregate principal amount of all Securities Outstanding, or
to any suit instituted by any Securityholder for the enforcement
of the payment of the principal of or interest on any Security on
or after the due date expressed in such Security or any dated
fixed for redemption.'
"(i) In the event that the additional Events of Default set forth
in Section 3.9(e) shall be added to this Indenture, the Trustee will not
be charged with knowledge of the occurrence of any Event of Default set
forth in clause (h) of Section 5.1 of this Indenture unless a
Responsible Officer assigned to its Corporate Trust Office has actual
knowledge thereof or unless the Trustee has received written notice
thereof from the Issuer or a Holder.
"(j) In the event that the Guarantor enters into a Supplemental
Indenture pursuant to Section 3.9(a), such Supplemental Indenture shall
also provide for Section 8.2 of the Indenture to be supplemented by
adding the following text at the end of clause (a) of the first
paragraph of such Section 8.2 immediately before the words "without the
consent of the Holder of each Security so affected":
`, or change in any manner adverse to the interest of the Holder
of any Outstanding Security or Coupon appertaining thereto the
terms and conditions of the obligations of the Guarantor under
this Indenture or any Guarantee in respect of the due and
punctual payment of the principal thereof and interest thereon or
any sinking fund or analogous payments in respect thereof or
release the Guarantor from its obligations under this Indenture
or any Guarantee of any such Security or any Coupon appertaining
thereto,'
"(k) If the Guarantor is released from its obligations
under this Indenture with respect to the Securities of any series
and from its obligations under its Guarantee with respect to the
Securities of such series pursuant to Section 3.9(a) or 3.9(d)
above, then, automatically and without further action on the part
of the Issuer, the Guarantor or the Trustee, the additional
Events of
25
Default added pursuant to Section 3.9(e) shall cease to be effective
with respect to the Securities of such series (provided that such
cessation shall not affect such Events of Default insofar as they
pertain to any other series of Securities), and, if the covenant set
forth in Section 3.9(a) shall terminate pursuant to Section 3.9(b),
then, automatically and without further action on the part of the
Issuer, the Guarantor or the Trustee, the additional Events of Default
added pursuant to Section 3.9(e), the parenthetical clause added to this
Indenture pursuant to Section 4(b) of the Fourth Supplemental Indenture
and the amendments, supplements and restatements to this Indenture
effected pursuant to Sections 3.9(f), (g), (h) and (j) shall terminate
and cease to be effective as to all series of Securities, but subject to
reinstatement of such Events of Default, parenthetical clause and
amendments, supplements and restatements upon the terms and conditions
set forth in Section 3.9(c).
"(l) As used in this Indenture, the following terms have the
meanings specified below:
"Credit Agreements" means:
"(1) the 364-Day Revolving Credit Facility Agreement dated
as of February 8, 2002 among the Issuer, Weyerhaeuser Real Estate
Company, the lenders named therein and the other parties thereto
and any related notes, letters of credit and guarantees;
"(2) the Competitive Advance and Revolving Credit Facility
Agreement dated as of February 8, 2002 among the Issuer, the
lenders, swingline bank and fronting bank named therein and the
other parties thereto, and any related notes, letters of credit
and guarantees, and
"(3) the Bridge Revolving Credit Facility Agreement dated
as of February 8, 2002 among the Issuer, the lenders named
therein and the other parties thereto and any related notes,
letters of credit and guarantees,
"in each case as the same may be amended, modified, supplemented or
restated or refunded, refinanced, restructured, replaced, renewed,
repaid or extended from time to time (whether with the original agents,
lenders and other parties thereto or other agents, lenders or other
parties thereto and whether under the original such Credit Agreement or
any other credit agreements or otherwise), and including any of the
foregoing that shall extend the maturity or increase the amount of
borrowings or available borrowings thereunder.
"Guarantee" means the Guarantor's guarantee set forth in a
Supplemental Indenture executed pursuant to Section 3.9(a) and any
guarantee of a Security or any Coupon appertaining thereto by the
Guarantor that is endorsed on a Security authenticated and made
available for delivery pursuant to this Indenture, collectively, or all
or any such guarantees, as the context shall require.
"Guarantor" means Willamette Industries, Inc., an Oregon
corporation.
26
"Weyerhaeuser/Willamette Merger" means a statutory merger
pursuant to which the Guarantor shall be merged with and into the
Issuer, with the Issuer being the surviving corporation and whereupon
the separate corporate existence of Willamette shall cease.
"(m) At the time of execution and delivery of any Supplemental
Indenture pursuant to Section 3.9(a) above, the Issuer shall deliver to
the Trustee, in addition to any documents which may be required by
Section 8.4, 11.5 or any other applicable provision of this Indenture,
an Officers' Certificate to the effect that such Supplemental Indenture
complies with the requirements of this Section 3.9 and an Opinion of
Counsel to the effect that such Supplemental Indenture complies with the
provisions of this Section 3.9 and has been duly authorized, executed
and delivered by, and is a valid and binding obligation of, the Issuer
and the Guarantor, enforceable against the Issuer and the Guarantor in
accordance with its terms, and if, the Issuer shall issue Securities
with Guarantees in substantially the form attached as Exhibit F to the
Fourth Supplemental Indenture endorsed thereon, the Issuer shall deliver
to the Trustee (prior to the original issuance of such Securities), and
(subject to Section 6.1) the Trustee shall be fully protected in relying
upon, an Opinion of Counsel to the effect that the Guarantees endorsed
on such Securities have been duly authorized by the Guarantor and, when
such Guarantees have been duly executed by the Guarantor and such
Securities have been duly executed by the Issuer and authenticated and
delivered by the Trustee in the manner and subject to any conditions
specified in such Opinion of Counsel, such Guarantees will be valid and
binding obligations of the Guarantor, enforceable against the Guarantor
in accordance with their respective terms, in each case subject to
customary bankruptcy, equitable remedies, public policy and other
exceptions which shall be reasonably satisfactory to the Trustee. In the
event that the legal counsel rendering such Opinion of Counsel is not
admitted to practice in the State of New York, then such Opinion of
Counsel may state that, in rendering such opinion, such counsel has
assumed that the laws of the State of New York are the same as the laws
of the Issuer's or the Guarantor's, as the case may be, jurisdiction of
organization.
"(n) It shall be a condition to (i) the Guarantor's release from
its obligations under this Indenture (including any applicable
Supplemental Indenture) and the Guarantee and the termination of the
Guarantee pursuant to Section 3.9(a), (ii) the termination of the
provisions set forth in Section 3.9(a) pursuant to Section 3.9(b), and
(iii) the Guarantors' release from its obligations under this Indenture
(including any applicable Supplemental Indenture) and the Guarantee and
the termination of its Guarantee with respect to the Securities of any
series pursuant to Section 3.9(d), as the case may be, that the Issuer
shall have theretofore delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each of which shall comply with Section 11.5,
to the effect that all conditions precedent herein provided relating to
such termination and/or release have been complied with and, in the case
of any such release pursuant to Section 3.9(a), an Opinion of Counsel to
the effect that any Bank Guarantees provided by the Guarantor have
terminated and, in the case of any such
27
termination pursuant to Section 3.9(b) (but only if the Guarantor shall
have provided one or more Bank Guarantees) an Opinion of Counsel to the
effect that such Bank Guarantees have terminated, and, upon delivery
thereof and satisfaction by the Issuer of the other applicable
conditions set forth in this Section 3.9 and any other conditions
provided in this Indenture, the Trustee, at the expense of the Issuer
and upon the Issuer's request, shall execute proper instruments
(substantially in the forms provided by the Issuer) acknowledging such
termination or release.
(b) Section 5.1 of the Prior Indenture is hereby supplemented by adding
the following parenthetical clause in the 8th line of clause (d) of the first
paragraph of such Section 5.1, such text to be inserted immediately after the
words "90 days" and immediately before the words "after there has":
"(or 10 days in the case of the covenant set forth in Section 3.9 of
this Indenture, unless this parenthetical clause shall have been
terminated pursuant to Section 3.9(k), in which case this parenthetical
clause shall cease to be effective for all purposes of this Indenture,
or unless the terms of the Securities of such series, as set forth in a
Board Resolution, Officers' Certificate or indenture supplemental hereto
provided pursuant to Section 2.3, expressly provide that the Securities
of such series are not entitled to the benefits of Section 3.9(a), in
which case this parenthetical clause shall not be applicable to the
Securities of such series)".
SECTION 5. Governing Law; Fourth Supplemental Indenture. This Fourth
Supplemental Indenture shall be deemed to be a contract made under the laws of
the State of New York and for all purposes shall be construed in accordance with
the laws of the State of New York. The terms and conditions of this Fourth
Supplemental Indenture shall be, and be deemed to be, part of the terms and
conditions of the Indenture for any and all purposes. Other than as amended and
supplemented by this Fourth Supplemental Indenture, the Indenture is in all
respects ratified and confirmed.
SECTION 6. Acceptance by Trustee. The Trustee hereby accepts this Fourth
Supplemental Indenture and agrees to perform the same upon the terms and
conditions set forth in the Indenture.
SECTION 7. Counterparts. This Fourth Supplemental Indenture may be
executed in two or more counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute but one
instrument.
SECTION 8. Headings. The headings of this Fourth Supplemental Indenture
are for reference only and shall not limit or otherwise affect the meaning
hereof.
SECTION 9. Trustee Not Responsible for Recitals. The recitals herein
contained are made by the Issuer and not by the Trustee, and the Trustee assumes
no responsibility for the correctness thereof. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Fourth Supplemental Indenture.
28
SECTION 10. Separability. In case any one or more of the provisions
contained in this Fourth Supplemental Indenture or in the Offered Securities
shall for any reason be held to be invalid, illegal or unenforceable in any
respect, then, to the fullest extent permitted by applicable law, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Fourth Supplemental Indenture or of the Offered Securities, but this
Fourth Supplemental Indenture and the Offered Securities shall be construed as
if such invalid or illegal or unenforceable provision had never been contained
herein or therein.
[SIGNATURE PAGE FOLLOWS]
29
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed by their respective authorized
officers as of the date first written above.
WEYERHAEUSER COMPANY,
By:
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Treasurer
Attest:
By:
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Corporate Secretary and
Assistant General Counsel
JPMORGAN CHASE BANK, as trustee,
By:
--------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title:
30
Exhibit A-1
[FORM OF TRANCHE 1 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE
PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN
CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR
UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-1
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered
Securities --] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BB 9
[Reg S: U96224 AB 3]
[A/I: 962166 BG 8]
[Exchange Note: 962166 BH 6]
WEYERHAEUSER COMPANY
Floating Rate Note due 2003
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes any successor thereto under the Indenture referred to below), for value
received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED SECURITIES
- Cede & Co.], or registered assigns, at the office or agency of the Issuer
maintained for such purpose in the Borough of Manhattan, The City of New York,
the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED SECURITIES
-- or such other principal amount as is set forth on Schedule A hereto] on
September 15, 2003, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest on said principal sum at said office or
agency, quarterly in arrears on March 15, June 15, September 15 and December 15
of each year (each, an "Interest Payment Date"), commencing June 15, 2002, and
at final maturity, in like coin or currency, at a per annum rate equal to LIBOR
(determined in the manner described below) plus 1.125% from the Interest Payment
Date next preceding the date of this Note to which interest has been paid or
duly provided for, unless the date hereof is a date to which interest has been
paid or duly provided for, in which case from the date of this Note, or unless
no interest has been paid or duly provided for on these Notes, in which case
from March 12, 2002, until payment of said principal sum has been made or duly
provided for; provided that, if this Note is not a Global Security, payment of
interest may be made at the option of the Issuer by check mailed to the address
of the Person entitled thereto as such address shall appear on the Security
register; and provided, further, that if this Note is a Global Security
registered in the name of a Depositary or its nominee, payment of interest shall
be made to the Depositary or its nominee, as the case may be, in accordance with
the Depositary's procedures as in effect from time to time. Notwithstanding the
A-1-2
foregoing, if the date hereof is after a Regular Record Date (as defined below)
and before the following Interest Payment Date, this Note shall bear interest
from such Interest Payment Date; provided, that if the Issuer shall default in
the payment of interest due on such Interest Payment Date, then this Note shall
bear interest from the next preceding Interest Payment Date to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on these Notes, from March 12, 2002. The interest so payable on any
Interest Payment Date will, subject to certain exceptions provided in the
Indenture referred to below, be paid to the Person in whose name this Note is
registered at the close of business on the 15th calendar day (whether or not a
Floating Rate Business Day, as defined below) next preceding such Interest
Payment Date (a "Regular Record Date"); provided that interest payable on the
final maturity date of this Note will be paid to the Person to whom the
principal hereof is paid. If any Interest Payment Date, other than an Interest
Payment Date falling on the final maturity date of this Note, would otherwise be
a day that is not a Floating Rate Business Day, that Interest Payment Date will
be moved to, and will be, the next succeeding Floating Rate Business Day, except
that, if that next succeeding Floating Rate Business Day falls in the next
succeeding calendar month, that Interest Payment Date instead will be moved to,
and will be, the immediately preceding Floating Rate Business Day. If the final
maturity date of this Note falls on a day that is not a Floating Rate Business
Day, then payments of the principal of and interest on this Note that are due on
the final maturity date need not be made on the final maturity date, but may be
made on the next succeeding Floating Rate Business Day with the same force and
effect as if made on the final maturity date and no interest will accrue for the
period after the final maturity date.
Interest on this Note will accrue from, and including, March 12, 2002
to, but excluding, the Interest Payment Date falling in June 2002 and then from,
and including, the immediately preceding Interest Payment Date to which interest
has been paid or duly provided for on this Note to, but excluding, the next
Interest Payment Date or the final maturity date, as the case may be. Interest
on this Note will be calculated on the basis of the actual number of days in the
applicable period divided by 360.
"Floating Rate Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York; provided, that such day must also be a London Business Day.
"London Business Day" means any day on which dealings in deposits in United
States dollars are transacted in the London interbank market.
The interest rate on the Notes for the initial Interest Period (as
defined below) commencing March 12, 2002 will be set, and for each subsequent
Interest Period will be reset, as of the first day of such Interest Period (the
date on which that interest rate is set for the initial Interest Period or reset
for any subsequent Interest Period is referred to as an "Interest Reset Date").
The interest rate in effect on any day that is not an Interest Reset Date will
be the interest rate determined as of the Interest Determination Date pertaining
to the immediately preceding Interest Reset Date, and the interest rate in
effect on any day that is an Interest Reset Date will be the interest rate
determined as of the Interest Determination Date (as defined below) pertaining
to that Interest Reset Date.
"Interest Period" means the period beginning on, and including, an
Interest Payment Date to, but excluding, the next succeeding Interest Payment
Date or the final maturity date, as the case may be, except that the first
Interest Period will be the period beginning on, and including, March 12, 2002
to, but excluding, the Interest Payment Date falling in June 2002.
"Interest Determination Date" means, with respect to any Interest Reset
Date, the second London Business Day preceding that Interest Reset Date.
The Calculation Agent (as defined in the Indenture referred to below)
will determine LIBOR in accordance with the following provisions:
"LIBOR" means:
A-1-3
(1) With respect to any Interest Determination Date, LIBOR will
be the rate for deposits in United States dollars having a maturity of
three months commencing on the first day of the applicable Interest
Period that appears on Telerate Page 3750 as of 11:00 A.M., London time,
on that Interest Determination Date. If no rate appears as aforesaid,
LIBOR with respect to that Interest Determination Date will be
determined in accordance with the provisions described in (2) below.
(2) With respect to an Interest Determination Date on which no
rate appears on Telerate Page 3750 as specified in (1) above, the
Calculation Agent will request the principal London offices of each of
four major banks in the London interbank market (the "reference banks"),
selected by the Calculation Agent after consultation with the Issuer, to
provide the Calculation Agent with its offered quotation for deposits in
United States dollars for the period of three months, commencing on the
first day of the applicable Interest Period, to prime banks in the
London interbank market at approximately 11:00 A.M., London time, on
that Interest Determination Date and in a principal amount equal to an
amount of at least $1,000,000 that is representative for a single
transaction in United States dollars in that market at that time. If at
least two quotations are provided, then LIBOR on that Interest
Determination Date will be the arithmetic mean of those quotations as
calculated by the Calculation Agent. If fewer than two quotations are
provided by the reference banks, then LIBOR on that Interest
Determination Date will be the arithmetic mean as calculated by the
Calculation Agent of the rates quoted at approximately 11:00 A.M., New
York City time, on that Interest Determination Date by three major banks
in The City of New York, selected by the Calculation Agent after
consultation with the Issuer, for loans in United States dollars to
leading European banks having a three month maturity and in a principal
amount equal to an amount of at least $1,000,000 that is representative
for a single transaction in United States dollars in that market at the
time; provided, however, that if the banks selected by the Calculation
Agent are not providing quotations in the manner described in this
sentence, LIBOR determined as of that Interest Determination Date will
be LIBOR as in effect on that Interest Determination Date.
"Telerate Page 3750" means the display designated as "Page 3750"
on Bridge Telerate, Inc., or such other page as may replace the 3750
page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of
displaying the London interbank rates of major banks for United States
dollars.
The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
All percentages resulting from any calculation on the Notes will be
rounded to the nearest one hundred-thousandth of a percentage point, with
five-one millionths of a percentage point rounded upwards. All dollar amounts
used in or resulting from any calculation on the Notes will be rounded to the
nearest cent, with one-half cent being rounded upwards.
All calculations made by the Calculation Agent for the purposes of
calculating interest on the Notes shall be conclusive and binding on the Holders
and on the Issuer, absent manifest error.
This Note is one of a duly authorized issue of Securities of the Issuer
issued under and pursuant to an Indenture dated as of April 1, 1986 (the
"Original Indenture"), as amended and supplemented by a First Supplemental
Indenture thereto dated as of February 15, 1991 (the "First Supplemental
Indenture"), a Second Supplemental Indenture thereto dated as of February 1,
1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture
thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a
Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth
Supplemental Indenture"; the Original Indenture, as amended and supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and any other
indentures supplemental thereto, is hereinafter called the "Indenture"), each
duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank and Chemical Bank), as
A-1-4
trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
Holders of the Securities. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of the series of Securities designated on
the face hereof (the "Notes").
The Notes are not subject to redemption at the option of the Issuer at
any time prior to final maturity.
In case an Event of Default (as defined in the Indenture) with respect
to the Notes shall have occurred and be continuing, the principal hereof and
accrued and unpaid interest hereon may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each such series; provided, that no such supplemental
indenture shall, among other things, (i) extend the final maturity of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on the
redemption thereof, or make the principal thereof or the interest thereon
payable in any coin or currency other than that provided in the Securities or in
accordance with the terms thereof, or impair or affect the rights of any Holder
to institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
the Holders of which are required to consent to any such supplemental indenture
without the consent of the Holder of each Security so affected. It is also
provided in the Indenture that, with respect to certain defaults or Events of
Default, prior to any declaration accelerating the maturity of the Securities of
any series, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series (or, in the case of certain defaults or
Events of Default, all or certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default or Event of Default in respect of the payment of the principal of or
premium, if any, or interest on any of the Securities or a default or Event of
Default in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Security affected.
Any such consent or waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and any Notes which may be
issued in exchange or substitution herefor or on registration of transfer
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note in
the manner, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Notes may be
exchanged for a like aggregate principal amount of Notes of other authorized
denominations upon surrender of the Notes to be exchanged at the agency of the
Issuer maintained for that purpose in the Borough of Manhattan, The City of New
York in the manner and subject to the limitations provided in the Indenture,
without charge except for any tax or other governmental charge that may be
imposed in connection therewith.
A-1-5
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge that may be imposed in
connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of March 12, 2002 between the Issuer and Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. (as the same may be amended or
supplemented from time to time in accordance with its terms, the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders
of the Notes will, subject to certain exceptions and on the terms and subject to
the conditions specified in the Registration Rights Agreement, have the right to
exchange their Notes for a like principal amount of Exchange Securities of the
same series issued under the Indenture, which Exchange Securities will have been
registered under the Securities Act. The Holders of the Notes shall be entitled
to receive certain additional interest on the Notes in the event such exchange
offer is not consummated or upon certain other conditions, all as set forth in
the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and, subject to the
provisions of the first paragraph hereof, interest hereon and for all other
purposes, and neither the Issuer nor the Trustee nor any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or in any Note, or because of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, of the Issuer or of any successor entity, either directly
or through the Issuer or any successor entity, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
This Note shall be governed by and construed in accordance with the laws
of the State of New York, except as may otherwise be required by mandatory
provisions of law.
Terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged
from its obligations with respect to the Notes, subject to exceptions, if the
Issuer deposits with the Trustee cash or U.S. Government Obligations in the
amount and in the manner, and satisfies certain other conditions, as in the
Indenture provided.
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee under the Indenture by manual signature of an authorized officer of
the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-1-6
IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to
be signed and its corporate seal attested by the manual or facsimile signatures
of its duly authorized officers and has caused its corporate seal (or a
facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
[SEAL]
By:
--------------------------------
Name:
Title:
Attest:
---------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and
referred to in the within mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------
Authorized Officer
----------
* The signatures and/or the Trustee's certificate of authentication may be
moved to appear on the same page as the principal amount of this Security.
A-1-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT -- _______Custodian __________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act___________________________
(State)
Additional abbreviations may also be used though not in the above
list.
---------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------
--------------------------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
--------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
-----------------------------------------------------------------------
to transfer said security on the books of the Issuer with full power of
substitution in the premises.
Dated: Signed:
--------------------------- ---------------------------
Notice: The signature to this assignment must correspond with
the name as it appears upon the face of the within security in
every particular, without alteration or enlargement or any
change whatever.
A-1-8
[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the
meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this Floating
Rate Note due 2003 (the "Notes") or a portion hereof (the "Specified
Securities").
In connection with such request, the Transferor does hereby certify that such
transfer is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (as indicated by the
applicable box checked below), or the transfer does not require registration
under the Securities Act because (as indicated by the applicable box checked
below):
[ ] (a) The Specified Securities are being transferred pursuant to
an effective registration statement under the Securities
Act.
[ ] (b) The Specified Securities are being acquired for the
Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the
Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in
compliance with Rule 144A ("Rule 144A") under the
Securities Act to a Person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined
in Rule 144A) that is purchasing the Specified Securities
for its own account or for the account of another
"qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in
reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to
and in compliance with an exemption from the registration
requirements of the Securities Act provided by Rule 144
under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the
"United States" (as defined in Regulation S ("Regulation
S") under the Securities Act) in an "offshore transaction"
(as defined in Regulation S) in compliance with Rule 904
under the Securities Act.
A-1-9
This Certificate and the statements contained herein are made for the benefit of
the Trustee, the Issuer and the initial purchasers, if any, in the initial
offering of the Notes.
A-1-10
Date:
-------------------- ----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933 (the "Securities Act") and is aware that the Specified Securities (as
defined above) are being transferred in reliance on 144A under the Securities
Act, (ii) the undersigned is acquiring the Specified Securities for its own
account or for the account of one or more other qualified institutional buyers
over which it exercises sole investment discretion (in which latter case the
undersigned has given notice to each such account that the Specified Securities
are being transferred in reliance on Rule 144A) and (iii) this instrument has
been executed on behalf of the undersigned by one of its executive officers. The
undersigned transferee acknowledges and agrees that the Specified Securities
have not been registered under the Securities Act and may not be transferred
except in accordance with the resale and other transfer restrictions set forth
on the face thereof.
Date:
-------------------- ----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
A-1-11
[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars
($_). The following increases or decreases in the principal amount of this
Global Security have been made:
=================================================================================================
Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
X-0-00
Xxxxxxx X-0
[FORM OF TRANCHE 2 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE
PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN
CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR
UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-2-1
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BC 7]
[Reg S: U96224 AC 1]
[A/I: 962166 BJ 2]
[Exchange Note: 962166 BK 9]
WEYERHAEUSER COMPANY
5.50% Note due 2005
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes any successor thereto under the Indenture referred to below), for value
received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the
Issuer maintained for such purpose in the Borough of Manhattan, The City of New
York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--or such other principal amount as is set forth on Schedule A hereto]
on March 15, 2005, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually in arrears on March 15 and
September 15 of each year, commencing September 15, 2002, and at final maturity
on said principal sum at said office or agency, in like coin or currency, at the
rate of 5.50% per annum from the March 15 or September 15, as the case may be,
next preceding the date of this Note to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on these Notes, in which case from
March 12, 2002 until payment of said principal sum has been made or duly
provided for; provided that, if this Note is not a Global Security, payment of
interest may be made at the option of the Issuer by check mailed to the address
of the Person entitled thereto as such address shall appear on the Security
register; and provided, further, that if this Note is a Global Security
registered in the name of a
A-2-2
Depositary or its nominee, payment of interest shall be made to the Depositary
or its nominee, as the case may be, in accordance with the Depositary's
procedures as in effect from time to time. Notwithstanding the foregoing, if the
date hereof is after March 1 or September 1, as the case may be, and before the
following March 15 or September 15, this Note shall bear interest from such
March 15 or September 15; provided, that if the Issuer shall default in the
payment of interest due on such March 15 or September 15, then this Note shall
bear interest from the next preceding March 15 or September 15 to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on these Notes, from March 12, 2002. The interest so payable on any
March 15 or September 15 will, subject to certain exceptions provided in the
Indenture referred to below, be paid to the person in whose name this Note is
registered at the close of business on the March 1 or September 1, as the case
may be, next preceding such March 15 or September 15. Interest on this Note
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
This Note is one of a duly authorized issue of Securities of the Issuer
issued under and pursuant to an Indenture dated as of April 1, 1986 (the
"Original Indenture"), as amended and supplemented by a First Supplemental
Indenture thereto dated as of February 15, 1991 (the "First Supplemental
Indenture"), a Second Supplemental Indenture thereto dated as of February 1,
1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture
thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a
Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth
Supplemental Indenture"; the Original Indenture, as amended and supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and any other
indentures supplemental thereto, is hereinafter called the "Indenture"), each
duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of the series of Securities designated on
the face hereof (the "Notes").
The Notes may be redeemed, in whole or from time to time in part, at the
option of the Issuer on any date at a redemption price equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments
of principal and interest on the Notes to be redeemed (exclusive
of interest accrued to the applicable Redemption Date) discounted
to that Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 15 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid
interest on the principal amount of the Notes being redeemed to such Redemption
Date; provided, however, that payments of interest on the Notes that are due and
payable on or prior to a date fixed for redemption of Notes will be payable to
the Holders of those Notes registered as such at the close of business on the
relevant record dates according to their terms and the terms and provisions of
the Indenture. Any such redemption shall be effected in accordance with the
terms and conditions set forth in the Indenture.
As used in this Note, the following terms have the meanings set forth
below:
"Treasury Rate" means, with respect to any Redemption Date for the
Notes, (1) the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by
A-2-3
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Final Maturity Date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day
preceding the applicable Redemption Date. As used in the immediately preceding
sentence and in the definition of "Reference Treasury Dealer Quotations" below,
the term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date
for the Notes, the United States Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of the
Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Notes to be
redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date
for the Notes, (1) the average of four Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2005.
"Independent Investment Banker" means, with respect to any Redemption
Date for the Notes, Xxxxxx Xxxxxxx & Co. Incorporated and its successors or X.X.
Xxxxxx Securities Inc. and its successors, whichever shall be selected by the
Trustee after consultation with the Issuer, or, if both such firms or the
respective successors, if any, to such firms, as the case may be, are unwilling
or unable to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Issuer.
"Redemption Date" means, with respect to any Note or portion thereof to
be redeemed, the date fixed for such redemption pursuant to the Indenture and
the Notes.
"Reference Treasury Dealer" means, with respect to any Redemption Date
for the Notes, Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities Inc.
and their respective successors (provided, however, that if any such firm or any
such successor, as the case may be, shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee,
after consultation with the Issuer, shall substitute therefor another Primary
Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee
after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Notes, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding that Redemption Date.
A-2-4
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the applicable Redemption Date to each Holder of the Notes
to be redeemed at the Holder's registered address. If less than all the Notes
are to be redeemed at the option of the Issuer, the Trustee will select, in a
manner it deems fair and appropriate, the Notes, or portions of the Notes, to be
redeemed.
Unless the Issuer defaults in payment of the redemption price (including
interest accrued to the applicable Redemption Date), on and after the applicable
Redemption Date interest will cease to accrue on the Notes or portions of the
Notes called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any
notice of redemption of the Notes need not set forth the redemption price but
only the manner of calculation thereof. The Issuer will notify the Trustee of
the redemption price promptly after the calculation thereof. The Trustee shall
have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect
to the Notes shall have occurred and be continuing, the principal hereof and
accrued and unpaid interest hereon may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each such series; provided, that no such supplemental
indenture shall, among other things, (i) extend the final maturity of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on the
redemption thereof, or make the principal thereof or the interest thereon
payable in any coin or currency other than that provided in the Securities or in
accordance with the terms thereof, or impair or affect the rights of any Holder
to institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
the Holders of which are required to consent to any such supplemental indenture
without the consent of the Holder of each Security so affected. It is also
provided in the Indenture that, with respect to certain defaults or Events of
Default, prior to any declaration accelerating the maturity of the Securities of
any series, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series (or, in the case of certain defaults or
Events of Default, all or certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default or Event of Default in respect of the payment of the principal of or
premium, if any, or interest on any of the Securities or a default or Event of
Default in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Security affected.
Any such consent or waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and any Notes which may be
issued in exchange or substitution herefor or on registration of transfer
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Notes may be
exchanged for a like aggregate principal amount of Notes of other
A-2-5
authorized denominations upon surrender of the Notes to be exchanged at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York in the manner and subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
that may be imposed in connection therewith.
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge that may be imposed in
connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of March 12, 2002 between the Issuer and Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. (as the same may be amended or
supplemented from time to time in accordance with its terms, the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders
of the Notes will, subject to certain exceptions and on the terms and subject to
the conditions specified in the Registration Rights Agreement, have the right to
exchange their Notes for a like principal amount of Exchange Securities of the
same series issued under the Indenture, which Exchange Securities will have been
registered under the Securities Act. The Holders of the Notes shall be entitled
to receive certain additional interest on the Notes in the event such exchange
offer is not consummated or upon certain other conditions, all as set forth in
the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and
subject to the provisions of the first paragraph hereof, interest hereon and for
all other purposes, and neither the Issuer nor the Trustee nor any authorized
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or in any Note, or because of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, of the Issuer or of any successor entity, either directly
or through the Issuer or any successor entity, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
This Note shall be governed by and construed in accordance with the laws
of the State of New York, except as may otherwise be required by mandatory
provisions of law.
Terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged
from its obligations with respect to the Notes, subject to exceptions, if the
Issuer deposits with the Trustee cash or U.S. Government Obligations in the
amount and in the manner, and satisfies certain other conditions, as in the
Indenture provided.
A-2-6
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee under the Indenture by manual signature of an authorized officer of
the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-2-7
IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to
be signed and its corporate seal attested by the manual or facsimile signatures
of its duly authorized officers and has caused its corporate seal (or a
facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
[SEAL] By:
--------------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------
Authorized Officer
-----------------------------
* The signatures and/or the Trustee's certificate of authentication may be moved
to appear on the same page as the principal amount of this Security.
A-2-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act _________________________
(State)
Additional abbreviations may also be used though not in the above
list.
---------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------
--------------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
--------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
-----------------------------------------------------------------------
to transfer said security on the books of the Issuer with full power of
substitution in the premises.
Dated: Signed:
----------------------------- -----------------------------
Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the within security in every particular,
without alteration or enlargement or any change whatever.
A-2-9
[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the
meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 5.50% Note
due 2005 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such
transfer is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (as indicated by the
applicable box checked below), or the transfer does not require registration
under the Securities Act because (as indicated by the applicable box checked
below):
[ ] (a) The Specified Securities are being transferred pursuant to
an effective registration statement under the Securities
Act.
[ ] (b) The Specified Securities are being acquired for the
Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the
Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in
compliance with Rule 144A ("Rule 144A") under the
Securities Act to a Person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined
in Rule 144A) that is purchasing the Specified Securities
for its own account or for the account of another
"qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in
reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to
and in compliance with an exemption from the registration
requirements of the Securities Act provided by Rule 144
under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the
"United States" (as defined in Regulation S ("Regulation
S") under the Securities Act) in an "offshore transaction"
(as defined in Regulation S) in compliance with Rule 904
under the Securities Act.
A-2-10
This Certificate and the statements contained herein are made for the benefit of
the Trustee, the Issuer and the initial purchasers, if any, in the initial
offering of the Notes.
Date:
---------------------
----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933 (the "Securities Act") and is aware that the Specified Securities (as
defined above) are being transferred in reliance on 144A under the Securities
Act, (ii) the undersigned is acquiring the Specified Securities for its own
account or for the account of one or more other qualified institutional buyers
over which it exercises sole investment discretion (in which latter case the
undersigned has given notice to each such account that the Specified Securities
are being transferred in reliance on Rule 144A) and (iii) this instrument has
been executed on behalf of the undersigned by one of its executive officers. The
undersigned transferee acknowledges and agrees that the Specified Securities
have not been registered under the Securities Act and may not be transferred
except in accordance with the resale and other transfer restrictions set forth
on the face thereof.
Dated:
---------------------
----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
A-2-11
[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars
($_). The following increases or decreases in the principal amount of this
Global Security have been made:
=================================================================================================
Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
X-0-00
Xxxxxxx X-0
[FORM OF TRANCHE 3 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE
PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN
CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR
UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-3-1
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BD 5]
[Reg S: U96224 AD 9]
[A/I: 962166 BL 7]
[Exchange Note: 962166 BM 5]
WEYERHAEUSER COMPANY
6.125% Note due 2007
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes any successor thereto under the Indenture referred to below), for value
received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the
Issuer maintained for such purpose in the Borough of Manhattan, The City of New
York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--or such other principal amount as is set forth on Schedule A hereto]
on March 15, 2007, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually in arrears on March 15 and
September 15 of each year, commencing September 15, 2002, and at final maturity
on said principal sum at said office or agency, in like coin or currency, at the
rate of 6.125% per annum from the March 15 or September 15, as the case may be,
next preceding the date of this Note to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on these Notes, in which case from
March 12, 2002 until payment of said principal sum has been made or duly
provided for; provided that, if this Note is not a Global Security, payment of
interest may be made at the option of the Issuer by check mailed to the address
of the Person entitled thereto as such address shall appear on the Security
register; and provided, further, that if this Note is a Global Security
registered in the name of a
A-3-2
Depositary or its nominee, payment of interest shall be made to the Depositary
or its nominee, as the case may be, in accordance with the Depositary's
procedures as in effect from time to time. Notwithstanding the foregoing, if the
date hereof is after March 1 or September 1, as the case may be, and before the
following March 15 or September 15, this Note shall bear interest from such
March 15 or September 15; provided, that if the Issuer shall default in the
payment of interest due on such March 15 or September 15, then this Note shall
bear interest from the next preceding March 15 or September 15 to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on these Notes, from March 12, 2002. The interest so payable on any
March 15 or September 15 will, subject to certain exceptions provided in the
Indenture referred to below, be paid to the person in whose name this Note is
registered at the close of business on the March 1 or September 1, as the case
may be, next preceding such March 15 or September 15. Interest on this Note
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
This Note is one of a duly authorized issue of Securities of the Issuer
issued under and pursuant to an Indenture dated as of April 1, 1986 (the
"Original Indenture"), as amended and supplemented by a First Supplemental
Indenture thereto dated as of February 15, 1991 (the "First Supplemental
Indenture"), a Second Supplemental Indenture thereto dated as of February 1,
1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture
thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a
Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth
Supplemental Indenture"; the Original Indenture, as amended and supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and any other
indentures supplemental thereto, is hereinafter called the "Indenture"), each
duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of the series of Securities designated on
the face hereof (the "Notes").
The Notes may be redeemed, in whole or from time to time in part,
at the option of the Issuer on any date at a redemption price equal to the
greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments
of principal and interest on the Notes to be redeemed (exclusive
of interest accrued to the applicable Redemption Date) discounted
to that Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 20 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid
interest on the principal amount of the Notes being redeemed to such Redemption
Date; provided, however, that payments of interest on the Notes that are due and
payable on or prior to a date fixed for redemption of Notes will be payable to
the Holders of those Notes registered as such at the close of business on the
relevant record dates according to their terms and the terms and provisions of
the Indenture. Any such redemption shall be effected in accordance with the
terms and conditions set forth in the Indenture.
As used in this Note, the following terms have the meanings set forth
below:
"Treasury Rate" means, with respect to any Redemption Date for the
Notes, (1) the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by
A-3-3
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Final Maturity Date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the
applicable Redemption Date. As used in the immediately preceding sentence and in
the definition of "Reference Treasury Dealer Quotations" below, the term
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date
for the Notes, the United States Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of the
Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Notes to be
redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date
for the Notes, (1) the average of four Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2007.
"Independent Investment Banker" means, with respect to any Redemption
Date for the Notes, Xxxxxx Xxxxxxx & Co. Incorporated and its successors or X.X.
Xxxxxx Securities Inc. and its successors, whichever shall be selected by the
Trustee after consultation with the Issuer, or, if both such firms or the
respective successors, if any, to such firms, as the case may be, are unwilling
or unable to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Issuer.
"Redemption Date" means, with respect to any Note or portion thereof to
be redeemed, the date fixed for such redemption pursuant to the Indenture and
the Notes.
"Reference Treasury Dealer" means, with respect to any Redemption Date
for the Notes, Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities Inc.
and their respective successors (provided, however, that if any such firm or any
such successor, as the case may be, shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee,
after consultation with the Issuer, shall substitute therefor another Primary
Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee
after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Notes, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding that Redemption Date.
A-3-4
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the applicable Redemption Date to each Holder of the Notes
to be redeemed at the Holder's registered address. If less than all the Notes
are to be redeemed at the option of the Issuer, the Trustee will select, in a
manner it deems fair and appropriate, the Notes, or portions of the Notes, to be
redeemed.
Unless the Issuer defaults in payment of the redemption price (including
interest accrued to the applicable Redemption Date), on and after the applicable
Redemption Date interest will cease to accrue on the Notes or portions of the
Notes called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any
notice of redemption of the Notes need not set forth the redemption price but
only the manner of calculation thereof. The Issuer will notify the Trustee of
the redemption price promptly after the calculation thereof. The Trustee shall
have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect
to the Notes shall have occurred and be continuing, the principal hereof and
accrued and unpaid interest hereon may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each such series; provided, that no such supplemental
indenture shall, among other things, (i) extend the final maturity of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on the
redemption thereof, or make the principal thereof or the interest thereon
payable in any coin or currency other than that provided in the Securities or in
accordance with the terms thereof, or impair or affect the rights of any Holder
to institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
the Holders of which are required to consent to any such supplemental indenture
without the consent of the Holder of each Security so affected. It is also
provided in the Indenture that, with respect to certain defaults or Events of
Default, prior to any declaration accelerating the maturity of the Securities of
any series, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series (or, in the case of certain defaults or
Events of Default, all or certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default or Event of Default in respect of the payment of the principal of or
premium, if any, or interest on any of the Securities or a default or Event of
Default in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Security affected.
Any such consent or waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and any Notes which may be
issued in exchange or substitution herefor or on registration of transfer
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Notes may be
exchanged for a like aggregate principal amount of Notes of other
A-3-5
authorized denominations upon surrender of the Notes to be exchanged at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York in the manner and subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
that may be imposed in connection therewith.
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge that may be imposed in
connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of March 12, 2002 between the Issuer and Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. (as the same may be amended or
supplemented from time to time in accordance with its terms, the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders
of the Notes will, subject to certain exceptions and on the terms and subject to
the conditions specified in the Registration Rights Agreement, have the right to
exchange their Notes for a like principal amount of Exchange Securities of the
same series issued under the Indenture, which Exchange Securities will have been
registered under the Securities Act. The Holders of the Notes shall be entitled
to receive certain additional interest on the Notes in the event such exchange
offer is not consummated or upon certain other conditions, all as set forth in
the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and,
subject to the provisions of the first paragraph hereof, interest hereon and for
all other purposes, and neither the Issuer nor the Trustee nor any authorized
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or in any Note, or because of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, of the Issuer or of any successor entity, either directly
or through the Issuer or any successor entity, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
This Note shall be governed by and construed in accordance with the laws
of the State of New York, except as may otherwise be required by mandatory
provisions of law.
Terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged
from its obligations with respect to the Notes, subject to exceptions, if the
Issuer deposits with the Trustee cash or U.S. Government Obligations in the
amount and in the manner, and satisfies certain other conditions, as in the
Indenture provided.
A-3-6
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee under the Indenture by manual signature of an authorized officer of
the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-3-7
IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to
be signed and its corporate seal attested by the manual or facsimile signatures
of its duly authorized officers and has caused its corporate seal (or a
facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
By:
--------------------------------
Name:
Title:
[SEAL]
Attest:
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------------
Authorized Officer
-----------------------------
* The signatures and/or the Trustee's certificate of authentication may be moved
to appear on the same page as the principal amount of this Security.
A-3-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ____________________
(State)
Additional abbreviations may also be used though not in the above
list.
---------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------
--------------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
--------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
-----------------------------------------------------------------------
to transfer said security on the books of the Issuer with full power of
substitution in the premises.
Dated: Signed:
----------------------------- -----------------------------
Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the within security in every particular,
without alteration or enlargement or any change whatever.
A-3-9
[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the
meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 6.125% Note
due 2007 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such
transfer is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (as indicated by the
applicable box checked below), or the transfer does not require registration
under the Securities Act because (as indicated by the applicable box checked
below):
[ ] (a) The Specified Securities are being transferred pursuant to
an effective registration statement under the Securities
Act.
[ ] (b) The Specified Securities are being acquired for the
Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the
Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in
compliance with Rule 144A ("Rule 144A") under the
Securities Act to a Person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined
in Rule 144A) that is purchasing the Specified Securities
for its own account or for the account of another
"qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in
reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to
and in compliance with an exemption from the registration
requirements of the Securities Act provided by Rule 144
under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the
"United States" (as defined in Regulation S ("Regulation
S") under the Securities Act) in an "offshore transaction"
(as defined in Regulation S) in compliance with Rule 904
under the Securities Act.
A-3-10
This Certificate and the statements contained herein are made for the benefit of
the Trustee, the Issuer and the initial purchasers, if any, in the initial
offering of the Notes.
Date:
--------------------
----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933 (the "Securities Act") and is aware that the Specified Securities (as
defined above) are being transferred in reliance on 144A under the Securities
Act, (ii) the undersigned is acquiring the Specified Securities for its own
account or for the account of one or more other qualified institutional buyers
over which it exercises sole investment discretion (in which latter case the
undersigned has given notice to each such account that the Specified Securities
are being transferred in reliance on Rule 144A) and (iii) this instrument has
been executed on behalf of the undersigned by one of its executive officers. The
undersigned transferee acknowledges and agrees that the Specified Securities
have not been registered under the Securities Act and may not be transferred
except in accordance with the resale and other transfer restrictions set forth
on the face thereof.
Dated:
--------------------
----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
A-3-11
[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars
($_). The following increases or decreases in the principal amount of this
Global Security have been made:
=================================================================================================
Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
Exhibit A-4
[FORM OF TRANCHE 4 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE
PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN
CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR
UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-4-1
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED
IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE
OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), 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.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BE 3]
[Reg S: U96224 AE 7]
[A/I: 962166 BN 3]
[Exchange Note: 962166 BP 8]
WEYERHAEUSER COMPANY
6.75% Note due 2012
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes any successor thereto under the Indenture referred to below), for value
received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the
Issuer maintained for such purpose in the Borough of Manhattan, The City of New
York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--or such other principal amount as is set forth on Schedule A hereto]
on March 15, 2012, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually in arrears on March 15 and
September 15 of each year, commencing September 15, 2002, and at final maturity
on said principal sum at said office or agency, in like coin or currency, at the
rate of 6.75% per annum from the March 15 or September 15, as the case may be,
next preceding the date of this Note to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on these Notes, in which case from
March 12, 2002 until payment of said principal sum has been made or duly
provided for; provided that, if this Note is not a Global Security, payment of
interest may be made at the option of the Issuer by check mailed to the address
of the Person entitled thereto as such address shall appear on the Security
register; and provided, further, that if this Note is a Global Security
registered in the name of a
A-4-2
Depositary or its nominee, payment of interest shall be made to the Depositary
or its nominee, as the case may be, in accordance with the Depositary's
procedures as in effect from time to time. Notwithstanding the foregoing, if the
date hereof is after March 1 or September 1, as the case may be, and before the
following March 15 or September 15, this Note shall bear interest from such
March 15 or September 15; provided, that if the Issuer shall default in the
payment of interest due on such March 15 or September 15, then this Note shall
bear interest from the next preceding March 15 or September 15 to which interest
has been paid or duly provided for or, if no interest has been paid or duly
provided for on these Notes, from March 12, 2002. The interest so payable on any
March 15 or September 15 will, subject to certain exceptions provided in the
Indenture referred to below, be paid to the person in whose name this Note is
registered at the close of business on the March 1 or September 1, as the case
may be, next preceding such March 15 or September 15. Interest on this Note
shall be calculated on the basis of a 360-day year consisting of twelve 30-day
months.
This Note is one of a duly authorized issue of Securities of the Issuer
issued under and pursuant to an Indenture dated as of April 1, 1986 (the
"Original Indenture"), as amended and supplemented by a First Supplemental
Indenture thereto dated as of February 15, 1991 (the "First Supplemental
Indenture"), a Second Supplemental Indenture thereto dated as of February 1,
1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture
thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a
Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth
Supplemental Indenture"; the Original Indenture, as amended and supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and any other
indentures supplemental thereto, is hereinafter called the "Indenture"), each
duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of the series of Securities designated on
the face hereof (the "Notes").
The Notes may be redeemed, in whole or from time to time in part,
at the option of the Issuer on any date at a redemption price equal to the
greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments
of principal and interest on the Notes to be redeemed (exclusive
of interest accrued to the applicable Redemption Date) discounted
to that Redemption Date on a semi-annual basis (assuming a
360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 25 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid
interest on the principal amount of the Notes being redeemed to such Redemption
Date; provided, however, that payments of interest on the Notes that are due and
payable on or prior to a date fixed for redemption of Notes will be payable to
the Holders of those Notes registered as such at the close of business on the
relevant record dates according to their terms and the terms and provisions of
the Indenture. Any such redemption shall be effected in accordance with the
terms and conditions set forth in the Indenture.
As used in this Note, the following terms have the meanings set forth
below:
"Treasury Rate" means, with respect to any Redemption Date for the
Notes, (1) the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by
A-4-3
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Final Maturity Date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the
applicable Redemption Date. As used in the immediately preceding sentence and in
the definition of "Reference Treasury Dealer Quotations" below, the term
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date
for the Notes, the United States Treasury security selected by the Independent
Investment Banker as having a maturity comparable to the remaining term of the
Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the Notes to be
redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date
for the Notes, (1) the average of four Reference Treasury Dealer Quotations for
such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2012.
"Independent Investment Banker" means, with respect to any Redemption
Date for the Notes, Xxxxxx Xxxxxxx & Co. Incorporated and its successors or X.X.
Xxxxxx Securities Inc. and its successors, whichever shall be selected by the
Trustee after consultation with the Issuer, or, if both such firms or the
respective successors, if any, to such firms, as the case may be, are unwilling
or unable to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Issuer.
"Redemption Date" means, with respect to any Note or portion thereof to
be redeemed, the date fixed for such redemption pursuant to the Indenture and
the Notes.
"Reference Treasury Dealer" means, with respect to any Redemption Date
for the Notes, Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities Inc.
and their respective successors (provided, however, that if any such firm or any
such successor, as the case may be, shall cease to be a primary U.S. Government
securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee,
after consultation with the Issuer, shall substitute therefor another Primary
Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee
after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Notes, the average, as
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m.,
New York City time, on the third Business Day preceding that Redemption Date.
A-4-4
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the applicable Redemption Date to each Holder of the Notes
to be redeemed at the Holder's registered address. If less than all the Notes
are to be redeemed at the option of the Issuer, the Trustee will select, in a
manner it deems fair and appropriate, the Notes, or portions of the Notes, to be
redeemed.
Unless the Issuer defaults in payment of the redemption price (including
interest accrued to the applicable Redemption Date), on and after the applicable
Redemption Date interest will cease to accrue on the Notes or portions of the
Notes called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any
notice of redemption of the Notes need not set forth the redemption price but
only the manner of calculation thereof. The Issuer will notify the Trustee of
the redemption price promptly after the calculation thereof. The Trustee shall
have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect
to the Notes shall have occurred and be continuing, the principal hereof and
accrued and unpaid interest hereon may be declared, and upon such declaration
shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each such series; provided, that no such supplemental
indenture shall, among other things, (i) extend the final maturity of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on the
redemption thereof, or make the principal thereof or the interest thereon
payable in any coin or currency other than that provided in the Securities or in
accordance with the terms thereof, or impair or affect the rights of any Holder
to institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
the Holders of which are required to consent to any such supplemental indenture
without the consent of the Holder of each Security so affected. It is also
provided in the Indenture that, with respect to certain defaults or Events of
Default, prior to any declaration accelerating the maturity of the Securities of
any series, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series (or, in the case of certain defaults or
Events of Default, all or certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default or Event of Default in respect of the payment of the principal of or
premium, if any, or interest on any of the Securities or a default or Event of
Default in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Security affected.
Any such consent or waiver by the Holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Note and any Notes which may be
issued in exchange or substitution herefor or on registration of transfer
hereof, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Note in the manner, at the respective times, at the rate and in
the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Notes may be
exchanged for a like aggregate principal amount of Notes of other
A-4-5
authorized denominations upon surrender of the Notes to be exchanged at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York in the manner and subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
that may be imposed in connection therewith.
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York, a new Note or Notes of authorized denominations for an
equal aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge that may be imposed in
connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of March 12, 2002 between the Issuer and Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. (as the same may be amended or
supplemented from time to time in accordance with its terms, the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders
of the Notes will, subject to certain exceptions and on the terms and subject to
the conditions specified in the Registration Rights Agreement, have the right to
exchange their Notes for a like principal amount of Exchange Securities of the
same series issued under the Indenture, which Exchange Securities will have been
registered under the Securities Act. The Holders of the Notes shall be entitled
to receive certain additional interest on the Notes in the event such exchange
offer is not consummated or upon certain other conditions, all as set forth in
the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and,
subject to the provisions of the first paragraph hereof, interest hereon and for
all other purposes, and neither the Issuer nor the Trustee nor any authorized
agent of the Issuer or the Trustee shall be affected by any notice to the
contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or in any Note, or because of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, of the Issuer or of any successor entity, either directly
or through the Issuer or any successor entity, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
This Note shall be governed by and construed in accordance with the laws
of the State of New York, except as may otherwise be required by mandatory
provisions of law.
Terms used in this Note which are defined in the Indenture shall have
the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged
from its obligations with respect to the Notes, subject to exceptions, if the
Issuer deposits with the Trustee cash or U.S. Government Obligations in the
amount and in the manner, and satisfies certain other conditions, as in the
Indenture provided.
A-4-6
This Note shall not be valid or obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee under the Indenture by manual signature of an authorized officer of
the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-4-7
IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to
be signed and its corporate seal attested by the manual or facsimile signatures
of its duly authorized officers and has caused its corporate seal (or a
facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
[SEAL] By:
--------------------------------
Name:
Title:
Attest:
-----------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
--------------------------------
Authorized Officer
-----------------------------
* The signatures and/or the Trustee's certificate of authentication may be moved
to appear on the same page as the principal amount of this Security.
A-4-8
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ____________________
(State)
Additional abbreviations may also be used though not in the above
list.
---------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------
--------------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
--------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
-----------------------------------------------------------------------
to transfer said security on the books of the Issuer with full power of
substitution in the premises.
Dated: Signed:
----------------------------- ----------------------------
Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the within security in every particular,
without alteration or enlargement or any change whatever.
A-4-9
[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the
meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 6.75% Note
due 2012 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such
transfer is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (as indicated by the
applicable box checked below), or the transfer does not require registration
under the Securities Act because (as indicated by the applicable box checked
below):
[ ] (a) The Specified Securities are being transferred pursuant to
an effective registration statement under the Securities
Act.
[ ] (b) The Specified Securities are being acquired for the
Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the
Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in
compliance with Rule 144A ("Rule 144A") under the
Securities Act to a Person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined
in Rule 144A) that is purchasing the Specified Securities
for its own account or for the account of another
"qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in
reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to
and in compliance with an exemption from the registration
requirements of the Securities Act provided by Rule 144
under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the
"United States" (as defined in Regulation S ("Regulation
S") under the Securities Act) in an "offshore transaction"
(as defined in Regulation S) in compliance with Rule 904
under the Securities Act.
A-4-10
This Certificate and the statements contained herein are made for the benefit of
the Trustee, the Issuer and the initial purchasers, if any, in the initial
offering of the Notes.
Date:
----------------------
----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933 (the "Securities Act") and is aware that the Specified Securities (as
defined above) are being transferred in reliance on 144A under the Securities
Act, (ii) the undersigned is acquiring the Specified Securities for its own
account or for the account of one or more other qualified institutional buyers
over which it exercises sole investment discretion (in which latter case the
undersigned has given notice to each such account that the Specified Securities
are being transferred in reliance on Rule 144A) and (iii) this instrument has
been executed on behalf of the undersigned by one of its executive officers. The
undersigned transferee acknowledges and agrees that the Specified Securities
have not been registered under the Securities Act and may not be transferred
except in accordance with the resale and other transfer restrictions set forth
on the face thereof.
Dated:
----------------------
----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
A-4-11
[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars
($_). The following increases or decreases in the principal amount of this
Global Security have been made:
=================================================================================================
Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
X-0-00
Xxxxxxx X-0
[FORM OF TRANCHE 5 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE DEBENTURE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (a)
TO THE ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (c) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT
THE TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
PROVIDED THAT THE FOREGOING AGREEMENT OF THE HOLDER IS SUBJECT TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY
INVESTOR ACCOUNTS FOR WHICH THE HOLDER IS ACTING SHALL AT ALL TIMES BE AND
REMAIN WITHIN ITS OR THEIR CONTROL; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS DEBENTURE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS DEBENTURE PRIOR
TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE DEBENTURE
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH HEREON RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS DEBENTURE TO JPMORGAN CHASE BANK,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] IF
THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE
PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES
ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN
CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER
OF THE TRANSFER OF THE DEBENTURE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE
OR UPON ANY TRANSFER OF THIS DEBENTURE UNDER RULE 144(k) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--] AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-5-1
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR INDIVIDUAL DEBENTURES REPRESENTED HEREBY, THIS
GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered
Securities--] UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER
(AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), 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.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BF 0]
[Reg S: U96224 AF 4]
[A/I: 962166 BQ 6]
[Exchange Debenture: 962166 BR 4]
WEYERHAEUSER COMPANY
7.375% Debenture due 2032
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes any successor thereto under the Indenture referred to below), for value
received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the
Issuer maintained for such purpose in the Borough of Manhattan, The City of New
York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED
SECURITIES--or such other principal amount as is set forth on Schedule A hereto]
on March 15, 2032, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually in arrears on March 15 and
September 15 of each year, commencing September 15, 2002, and at final maturity
on said principal sum at said office or agency, in like coin or currency, at the
rate of 7.375% per annum from the March 15 or September 15, as the case may be,
next preceding the date of this Debenture to which interest has been paid or
duly provided for, unless the date hereof is a date to which interest has been
paid or duly provided for, in which case from the date of this Debenture, or
unless no interest has been paid or duly provided for on these Debentures, in
which case from March 12, 2002 until payment of said principal sum has been made
or duly provided for; provided that, if this Debenture is not a Global Security,
payment of interest may be made at the option of the Issuer by check mailed to
the address of the Person entitled thereto as such address shall appear on the
Security register; and provided, further, that if this Debenture is a Global
Security registered in the name of a Depositary or its nominee, payment of
interest shall be made to the Depositary or its nominee, as the case may be, in
accordance with the Depositary's procedures as in effect from time to time.
Notwithstanding the foregoing, if the date hereof is after March 1 or September
1, as the
A-5-2
case may be, and before the following March 15 or September 15, this Debenture
shall bear interest from such March 15 or September 15; provided, that if the
Issuer shall default in the payment of interest due on such March 15 or
September 15, then this Debenture shall bear interest from the next preceding
March 15 or September 15 to which interest has been paid or duly provided for
or, if no interest has been paid or duly provided for on these Debentures, from
March 12, 2002. The interest so payable on any March 15 or September 15 will,
subject to certain exceptions provided in the Indenture referred to below, be
paid to the person in whose name this Debenture is registered at the close of
business on the March 1 or September 1, as the case may be, next preceding such
March 15 or September 15. Interest on this Debenture shall be calculated on the
basis of a 360-day year consisting of twelve 30-day months.
This Debenture is one of a duly authorized issue of Securities of the
Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the
"Original Indenture"), as amended and supplemented by a First Supplemental
Indenture thereto dated as of February 15, 1991 (the "First Supplemental
Indenture"), a Second Supplemental Indenture thereto dated as of February 1,
1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture
thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a
Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth
Supplemental Indenture"; the Original Indenture, as amended and supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture, the Fourth Supplemental Indenture and any other
indentures supplemental thereto, is hereinafter called the "Indenture"), each
duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Issuer and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Debenture is one of the series of Securities designated
on the face hereof (the "Debentures").
The Debentures may be redeemed, in whole or from time to time in
part, at the option of the Issuer on any date at a redemption price equal to the
greater of:
(1) 100% of the principal amount of the Debentures to be redeemed,
and
(2) the sum of the present values of the remaining scheduled payments
of principal and interest on the Debentures to be redeemed
(exclusive of interest accrued to the applicable Redemption Date)
discounted to that Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 30 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid
interest on the principal amount of the Debentures being redeemed to such
Redemption Date; provided, however, that payments of interest on the Debentures
that are due and payable on or prior to a date fixed for redemption of
Debentures will be payable to the Holders of those Debentures registered as such
at the close of business on the relevant record dates according to their terms
and the terms and provisions of the Indenture. Any such redemption shall be
effected in accordance with the terms and conditions set forth in the Indenture.
As used in this Debenture, the following terms have the meanings set
forth below:
"Treasury Rate" means, with respect to any Redemption Date for the
Debentures, (1) the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published statistical
release designated "H.15(519)" or any successor publication which is published
weekly by the Board of Governors of the Federal Reserve System and which
establishes yields on actively traded United States Treasury securities adjusted
to constant maturity under the caption "Treasury Constant Maturities," for
A-5-3
the maturity corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Final Maturity Date for the Debentures,
yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate shall be
interpolated or extrapolated from such yields on a straight line basis, rounding
to the nearest month), or (2) if such release (or any successor release) is not
published during the week preceding the calculation date or does not contain
such yields, the rate per annum equal to the semi-annual equivalent yield to
maturity of the Comparable Treasury Issue, calculated using a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the
applicable Redemption Date. As used in the immediately preceding sentence and in
the definition of "Reference Treasury Dealer Quotations" below, the term
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that
is not a day on which banking institutions in The City of New York are
authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date
for the Debentures, the United States Treasury security selected by the
Independent Investment Banker as having a maturity comparable to the remaining
term of the Debentures to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Debentures to be redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date
for the Debentures, (1) the average of four Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such
Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2032.
"Independent Investment Banker" means, with respect to any Redemption
Date for the Debentures, Xxxxxx Xxxxxxx & Co. Incorporated and its successors or
X.X. Xxxxxx Securities Inc. and its successors, whichever shall be selected by
the Trustee after consultation with the Issuer, or, if both such firms or the
respective successors, if any, to such firms, as the case may be, are unwilling
or unable to select the Comparable Treasury Issue, an independent investment
banking institution of national standing appointed by the Trustee after
consultation with the Issuer.
"Redemption Date" means, with respect to any Debenture or portion
thereof to be redeemed, the date fixed for such redemption pursuant to the
Indenture and the Debentures.
"Reference Treasury Dealer" means, with respect to any Redemption Date
for the Debentures, Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities
Inc. and their respective successors (provided, however, that if any such firm
or any such successor, as the case may be, shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Trustee, after consultation with the Issuer, shall substitute therefor another
Primary Treasury Dealer), and two other Primary Treasury Dealers selected by the
Trustee after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date for the Debentures, the
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by that Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day preceding
that Redemption Date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the applicable Redemption Date to each Holder of the
Debentures to be redeemed at the Holder's registered
A-5-4
address. If less than all the Debentures are to be redeemed at the option of the
Issuer, the Trustee will select, in a manner it deems fair and appropriate, the
Debentures, or portions of the Debentures, to be redeemed.
Unless the Issuer defaults in payment of the redemption price (including
interest accrued to the applicable Redemption Date), on and after the applicable
Redemption Date interest will cease to accrue on the Debentures or portions of
the Debentures called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any
notice of redemption of the Debentures need not set forth the redemption price
but only the manner of calculation thereof. The Issuer will notify the Trustee
of the redemption price promptly after the calculation thereof. The Trustee
shall have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect
to the Debentures shall have occurred and be continuing, the principal hereof
and accrued and unpaid interest hereon may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee,
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Securities at the time Outstanding of all series to be
affected (voting as one class), evidenced as in the Indenture provided, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in any manner the rights of the Holders of
the Securities of each such series; provided, that no such supplemental
indenture shall, among other things, (i) extend the final maturity of any
Security, or reduce the principal amount thereof or reduce the rate or extend
the time of payment of any interest thereon, or reduce any amount payable on the
redemption thereof, or make the principal thereof or the interest thereon
payable in any coin or currency other than that provided in the Securities or in
accordance with the terms thereof, or impair or affect the rights of any Holder
to institute suit for the payment thereof, without the consent of the Holder of
each Security so affected, or (ii) reduce the aforesaid percentage of Securities
the Holders of which are required to consent to any such supplemental indenture
without the consent of the Holder of each Security so affected. It is also
provided in the Indenture that, with respect to certain defaults or Events of
Default, prior to any declaration accelerating the maturity of the Securities of
any series, the Holders of a majority in aggregate principal amount of the
Outstanding Securities of such series (or, in the case of certain defaults or
Events of Default, all or certain series of the Securities) may on behalf of the
Holders of all the Securities of such series (or all or certain series of the
Securities, as the case may be) waive any such past default or Event of Default
and its consequences. The preceding sentence shall not, however, apply to a
default or Event of Default in respect of the payment of the principal of or
premium, if any, or interest on any of the Securities or a default or Event of
Default in respect of a covenant or provision of the Indenture which cannot be
modified or amended without the consent of the Holder of each Security affected.
Any such consent or waiver by the Holder of this Debenture (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Debenture and any Debentures which
may be issued in exchange or substitution herefor or on registration of transfer
hereof, irrespective of whether or not any notation thereof is made upon this
Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture in the manner, at the respective times, at the rate
and in the coin or currency herein prescribed.
The Debentures are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000. Debentures may be
exchanged for a like aggregate principal amount of Debentures of other
authorized denominations upon surrender of the Debentures to be exchanged at the
agency of the Issuer maintained for that purpose in the Borough of Manhattan,
The City of New York in the manner
A-5-5
and subject to the limitations provided in the Indenture, without charge except
for any tax or other governmental charge that may be imposed in connection
therewith.
The Debentures are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Debenture at
the agency of the Issuer maintained for that purpose in the Borough of
Manhattan, The City of New York, a new Debenture or Debentures of authorized
denominations for an equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge that
may be imposed in connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Debentures under the Indenture, Holders of
Debentures shall have all the rights set forth in the Registration Rights
Agreement dated as of March 12, 2002 between the Issuer and Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx Securities Inc. (as the same may be amended or
supplemented from time to time in accordance with its terms, the "Registration
Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders
of the Debentures will, subject to certain exceptions and on the terms and
subject to the conditions specified in the Registration Rights Agreement, have
the right to exchange their Debentures for a like principal amount of Exchange
Securities of the same series issued under the Indenture, which Exchange
Securities will have been registered under the Securities Act. The Holders of
the Debentures shall be entitled to receive certain additional interest on the
Debentures in the event such exchange offer is not consummated or upon certain
other conditions, all as set forth in the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Debenture (whether or not this Debenture shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof and
premium, if any, and, subject to the provisions of the first paragraph hereof,
interest hereon and for all other purposes, and neither the Issuer nor the
Trustee nor any authorized agent of the Issuer or the Trustee shall be affected
by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or in any Debenture, or because of any indebtedness
represented thereby, shall be had against any incorporator, stockholder, officer
or director, as such, of the Issuer or of any successor entity, either directly
or through the Issuer or any successor entity, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance hereof and as part of the consideration for the
issue hereof.
This Debenture shall be governed by and construed in accordance with the
laws of the State of New York, except as may otherwise be required by mandatory
provisions of law.
Terms used in this Debenture which are defined in the Indenture shall
have the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged
from its obligations with respect to the Debentures, subject to exceptions, if
the Issuer deposits with the Trustee cash or U.S. Government Obligations in the
amount and in the manner, and satisfies certain other conditions, as in the
Indenture provided.
This Debenture shall not be valid or obligatory for any purpose until
the certificate of authentication hereon shall have been signed by or on behalf
of the Trustee under the Indenture by manual signature of an authorized officer
of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
A-5-6
IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to
be signed and its corporate seal attested by the manual or facsimile signatures
of its duly authorized officers and has caused its corporate seal (or a
facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
[SEAL]
By:
--------------------------------
Name:
Title:
Attest:
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and
referred to in the within mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
---------------------------------
Authorized Officer
-----------------------
* The signatures and/or the Trustee's certificate of authentication may be
moved to appear on the same page as the principal amount of this Security.
A-5-7
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ____________________
(State)
Additional abbreviations may also be used though not in the above
list.
---------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------
--------------------------------------------
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
--------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably constituting
and appointing
Attorney
-----------------------------------------------------------------------
to transfer said security on the books of the Issuer with full power of
substitution in the premises.
Dated: Signed:
-------------------- ----------------------------
Notice: The signature to this assignment must correspond with the name
as it appears upon the face of the within security in every particular,
without alteration or enlargement or any change whatever.
A-5-8
[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the
meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 7.375%
Debenture due 2032 (the "Debentures") or a portion hereof (the "Specified
Securities").
In connection with such request, the Transferor does hereby certify that such
transfer is being made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act") (as indicated by the
applicable box checked below), or the transfer does not require registration
under the Securities Act because (as indicated by the applicable box checked
below):
[ ] (a) The Specified Securities are being transferred pursuant to
an effective registration statement under the Securities
Act.
[ ] (b) The Specified Securities are being acquired for the
Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the
Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in
compliance with Rule 144A ("Rule 144A") under the
Securities Act to a Person the Transferor reasonably
believes is a "qualified institutional buyer" (as defined
in Rule 144A) that is purchasing the Specified Securities
for its own account or for the account of another
"qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in
reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to
and in compliance with an exemption from the registration
requirements of the Securities Act provided by Rule 144
under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the
"United States" (as defined in Regulation S ("Regulation
S") under the Securities Act) in an "offshore transaction"
(as defined in Regulation S) in compliance with Rule 904
under the Securities Act.
A-5-9
This Certificate and the statements contained herein are made for the benefit of
the Trustee, the Issuer and the initial purchasers, if any, in the initial
offering of the Debentures.
Dated:
------------------- ----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a
"qualified institutional buyer" as defined in Rule 144A under the Securities Act
of 1933 (the "Securities Act") and is aware that the Specified Securities (as
defined above) are being transferred in reliance on 144A under the Securities
Act, (ii) the undersigned is acquiring the Specified Securities for its own
account or for the account of one or more other qualified institutional buyers
over which it exercises sole investment discretion (in which latter case the
undersigned has given notice to each such account that the Specified Securities
are being transferred in reliance on Rule 144A) and (iii) this instrument has
been executed on behalf of the undersigned by one of its executive officers. The
undersigned transferee acknowledges and agrees that the Specified Securities
have not been registered under the Securities Act and may not be transferred
except in accordance with the resale and other transfer restrictions set forth
on the face thereof.
Dated:
------------------- ----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
A-5-10
[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars
($_). The following increases or decreases in the principal amount of this
Global Security have been made:
=================================================================================================
Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
-------------------------------------------------------------------------------------------------
=================================================================================================
A-5-11
EXHIBIT B
Form of Certificate
[Date]
JPMorgan Chase Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Weyerhaeuser Company
X.X. Xxx 0000
Xxxxxxx Xxx, Xxxxxxxxxx 00000-0000
Re: Weyerhaeuser Company
(the "Issuer")
[Floating Rate] [_____%] [Notes] [Debentures] due __________
(the "Securities")
Dear Sirs and Mesdames:
This letter relates to $______,000 principal amount of Securities
represented by a Regulation S [Global] [Physical] Security (as defined in the
Indenture referred to below) (the "Legended Security") which bears a legend
outlining restrictions upon transfer of such Legended Security. Pursuant to
Section 2.1(b) of the Indenture dated as of April 1, 1986 (the "Original
Indenture"), as amended and supplemented by a First Supplemental Indenture
thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a
Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second
Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of
October 22, 2001 (the "Third Supplemental Indenture") and a Fourth Supplemental
Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental
Indenture"; the Original Indenture, as amended and supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture, is hereinafter
called the "Indenture") relating to the Securities, we hereby certify that we
are (or we will hold such Securities on behalf of) a person outside the United
States to whom the Securities could be transferred in accordance with Rule 904
of Regulation S promulgated under the U.S. Securities Act of 1933. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Regulation S [Global]
[Physical] Securities all in the manner provided for in the Indenture.
B-1
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate and
defined herein have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
Authorized Signature
B-2
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[Date]
JPMorgan Chase Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Dear Sirs and Mesdames:
We are delivering this letter in connection with our proposed purchase
of $___ aggregate principal amount of [Floating Rate] [____%] [Notes]
[Debentures] due __________ (the "Securities") of Weyerhaeuser Company, a
Washington corporation (the "Issuer").
We hereby confirm that:
(i) we are an institutional "accredited investor" within the meaning
of Rule 501(a) (1), (2), (3) or (7) under the Securities Act of
1933, as amended (the "Securities Act") (an "Institutional
Accredited Investor");
(ii) any purchase of the Securities by us will be for our own account
or for the account of one or more other Institutional Accredited
Investors for which we exercise sole investment discretion;
(iii) in the event we purchase any of the Securities, we will acquire
Securities having a minimum principal amount of not less than
$250,000, in each case for our own account or for any separate
account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the Securities;
(v) we not acquiring the Securities with a view to, or for offer or
sale in connection with, any distribution in violation of the
Securities Act; provided that the disposition of our property and
the property of any accounts for which we are acquiring
Securities shall remain at all times within our or their control;
and
(vi) we acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask
such questions of representatives of the Issuer and receive
answers thereto, as we deem necessary in connection with our
decision to purchase the Securities.
C-1
We understand that the Securities are being offered in a transaction not
involving any public offering within the United States within the meaning of the
Securities Act and that the Securities have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Securities, that if in the future we decide to offer,
resell, pledge or otherwise transfer such Securities, such Securities may be
offered, resold, pledged or otherwise transferred only (i) to the Issuer or any
of its subsidiaries, (ii) to a person whom we reasonably believe is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act), (iii)
to a person who we reasonably believe is an Institutional Accredited Investor in
a transaction in which the Institutional Accredited Investor, prior to the
transfer, furnishes to the trustee a signed letter containing certain
representations and agreements relating to the restrictions on transfer of the
Securities (the form of which letter can be obtained from the trustee for the
Securities) and, if requested by the Issuer, an opinion of counsel reasonably
acceptable to the Issuer to the effect that the transfer is being made pursuant
to an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, (iv) outside the United States in a
transaction in accordance with Rule 904 under the Securities Act, (v) pursuant
to an exemption from registration provided by Rule 144 under the Securities Act
(if available) or (vi) pursuant to an effective registration statement under the
Securities Act, in each of cases (i) through (vi) in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction. We understand that, prior to any transfer referred to
in clause (iii), (iv) or (v) of the preceding sentence, we must furnish to the
trustee for the Securities such certifications, legal opinions and other
information as the Issuer may reasonably require to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
We acknowledge that you, the Issuer and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
C-2
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
Date:
--------------------
----------------------------------------
(Name of Purchaser)
By:
-------------------------------------
Name:
Title:
Address:
C-3
EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
[Date]
JPMorgan Chase Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Re: Weyerhaeuser Company
(the "Issuer")
[Floating Rate] [_____%] [Notes] [Debentures] due ____
(the "Securities")
Dear Sirs and Mesdames:
In connection with our proposed sale of $______,000 aggregate principal
amount of the Securities, we confirm that such sale has been effected pursuant
to and in accordance with Regulation S or Rule 144 under the Securities Act of
1933 (as indicated by the applicable box checked below) and, accordingly, we
represent that:
[ ] Rule 904 Transfers. The transfer is being effected in accordance
with Rule 904 and:
(1) the offer of the Securities was not made to a person in the
United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the
United States in contravention of the requirements of Rule 903 or Rule
904 of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933; and
(5) if the transfer is being made prior to the termination of the
distribution compliance period applicable to the Securities, the
interest in the Securities transferred will be held immediately
thereafter through Euroclear Bank S.A./NV, as operator of the Euroclear
System, or Clearstream Banking, societe anonyme, Luxembourg, as
applicable.
[ ] Rule 144 Transfers. The transfer is being made pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act provided by Rule 144 under the Securities Act.
D-1
You and the Issuer are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate and not
defined herein have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:
-------------------------------------
Authorized Signature
D-2
EXHIBIT E
[FORM OF GUARANTEE PROVISIONS]
ARTICLE THIRTEEN*
GUARANTEE OF THE SECURITIES
SECTION 13.1. Guarantee. The provisions of this Article Thirteen shall
apply to the Securities of each series (including, without limitation, any
Securities Outstanding or originally issued on the date on which this Article
Thirteen shall become effective) unless specifically provided in a Board
Resolution, Officers' Certificate or indenture supplemental hereto provided
pursuant to Section 2.3.
In recognition of the benefits that the issuance of the Securities has
conferred and will continue to confer upon the Guarantor and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, subject to the provisions of this Article Thirteen, the Guarantor
hereby irrevocably and unconditionally guarantees to each Holder of a Security
authenticated and made available for delivery by the Trustee and to each Holder
of any Coupon appertaining thereto, and to the Trustee on behalf of each such
Holder, the due and punctual payment of the principal of and premium, if any,
and interest on such Security and any Coupons appertaining thereto (including,
without limitation, to the maximum extent permitted by law, interest on any
overdue installments of principal, premium, if any, or interest) and the due and
punctual payment of any sinking fund or analogous payments provided for pursuant
to the terms of such Security, when and as the same shall become due and
payable, whether at maturity, upon redemption, upon acceleration, upon repayment
or repurchase at the option of the Holders or otherwise, in accordance with the
terms of such Security and any such Coupons appertaining thereto and this
Indenture; provided that the foregoing guarantee shall not be applicable to any
Securities of a series or any Coupons appertaining thereto if the terms of the
Securities of such series, as set forth in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3,
expressly provide that the Securities of such series are not entitled to the
benefit of the covenant set forth in Section 3.9(a) of this Indenture. Subject
to the proviso to the immediately preceding sentence, in the case of any failure
of the Issuer punctually to make any such payment, the Guarantor hereby agrees
to cause such payment to be made punctually when and as the same shall become
due and payable, whether at maturity, upon redemption, upon acceleration, upon
repayment or repurchase at the option of the Holder or otherwise, and as if such
payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of the validity, regularity or
enforceability of any Security or any Coupon appertaining thereto or this
Indenture, the absence of any action to enforce the same, any waiver or consent
by the Holder of any Security or any Coupon appertaining thereto or by the
Trustee with respect to any provisions hereof or thereof, the recovery of any
judgment against the Issuer, or any action to enforce the same, or any other
circumstances which might otherwise
----------
* The numbering of this Article and the sections thereof may be appropriately
revised.
E-1
constitute a legal or equitable discharge or defense of a guarantor and whether
or not a Guarantee in substantially the form attached as Exhibit F to the Fourth
Supplemental Indenture is affixed to or endorsed on any Security. The Guarantor
hereby waives the benefit of diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy of the Issuer,
any right to require a proceeding first against the Issuer, any right to require
the prior disposition of the assets of the Issuer to meet its obligations,
protest, or notice with respect to any Security or the indebtedness evidenced
thereby or any Coupon appertaining thereto or with respect to any sinking fund
or analogous payment required pursuant to the terms of such Security, and all
demands whatsoever and covenants that its Guarantee will not be discharged with
respect to any Security or any Coupon appertaining thereto except by payment in
full of the principal of and premium, if any and interest on such Security or
Coupon, as the case may be (except to the extent that such Guarantor is released
from its obligations under this Indenture and its Guarantee with respect to such
Security and any such Coupon as expressly provided in Section 3.9 of this
Indenture). The Guarantor hereby agrees that, in the event of a default in the
payment of any principal of or premium, if any, or interest on any Security or
any Coupon appertaining thereto, or a default in any sinking fund or analogous
payment referred to therein, legal proceedings may be instituted by the Trustee
on behalf of, or by, the Holder of such Security or such Coupon, as the case may
be, on the terms and conditions set forth in this Indenture, directly against
the Guarantor to enforce the Guarantee without first proceeding against the
Issuer; provided that the provisions of this sentence shall not be applicable to
a Security or any series or any Coupon appertaining thereto if the terms of the
Securities of such series, as set forth in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3,
expressly provide that the Securities of such series are not entitled to the
benefit of the covenant set forth in Section 3.9(a) of this Indenture.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities of a particular series and any Coupons appertaining thereto against
the Issuer in respect of any amounts paid by the Guarantor on account of any
such Security or any such Coupon pursuant to the provisions of this Indenture or
the Guarantee, if any, affixed to or endorsed on such Security; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of and premium, if any, and interest on all of the Securities of such
series and any Coupons appertaining thereto issued hereunder shall have been
paid in full or such payment duly provided for.
If the Issuer shall have agreed pursuant to a registration rights
agreement or other similar instrument or agreement to pay additional interest or
to make similar payments with respect to the Securities of any series or any
Coupons appertaining thereon, then the Guarantor's Guarantee, if any, of the
Securities of such series and any Coupons appertaining thereto shall also be
deemed to guarantee the due and punctual payment of such additional interest or
other similar payments, as the case may be, on the same terms and subject to the
same conditions as the Guarantee of interest on the Securities of such series
and any Coupons appertaining thereto.
The Guarantee set forth in this Section 13.1 shall not be valid or
become obligatory for any purpose with respect to any Security of any series or
any Coupon appertaining thereto until the certificate of authentication on such
Security shall have been signed by the Trustee or an Authenticating Agent in the
manner provided in this Indenture.
E-2
SECTION 13.2. Incorporators, Stockholders, Officers and Directors of the
Guarantor Exempt from Individual Liability. No recourse for the payment of any
principal or premium, if any, or interest under Section 13.1 or the Guarantee,
or for any claim based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the Guarantor contained
in this Indenture or in the Guarantee or because of any indebtedness evidenced
thereby, shall be had against any incorporator, as such, or against any past,
present or future stockholder, officer or director, as such, of the Guarantor or
of any successor, either directly or through the Guarantor or any successor,
under any rule of law, statute or constitutional provision or by the enforcement
of any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 13.3. Execution and Delivery of the Guarantees. To further
evidence the Guarantee set forth in Section 13.1 with respect to the Securities
of any series or any Coupons appertaining thereto, the Issuer and the Guarantor
hereby agree that a Guarantee, substantially in the form set forth in Exhibit F
to the Fourth Supplemental Indenture, shall be endorsed on Securities of such
series originally authenticated and made available for delivery by the Trustee;
provided that the Issuer shall not be required to make a notation on the
Securities of any series to reflect the Guarantee or to endorse a Guarantee on
the Securities of any series if the Securities of that series were originally
issued prior to the date on which the Guarantor became a guarantor of the
Securities of such series or any Coupons appertaining thereto. The validity and
enforceability of the Guarantee set forth in Section 13.1 of this Indenture with
respect to any Security or any Coupon appertaining thereto shall not be impaired
or otherwise affected by the fact that a Guarantee (whether in substantially the
form attached as Exhibit F to the Fourth Supplemental Indenture or in any other
form) is not endorsed on that Security or any other Security, and the Guarantor
agrees that the Guarantee set forth in Section 13.1 shall remain in full force
and effect with respect to each Security and Coupon entitled to the benefit of
such Guarantee notwithstanding any failure to endorse a notation of the
Guarantee (whether in substantially the form attached as Exhibit F to the Fourth
Supplemental Indenture or in any other form) on any Security.
The Guarantor hereby agrees that each notation of the Guarantee endorsed
on a Security shall be signed on behalf of the Guarantor by its president, any
vice president or its treasurer (each, a "subject officer") and by any other
subject officer, its secretary, any assistant secretary and any assistant
treasurer. The Guarantor's corporate seal need not be affixed to any Guarantee
endorsed on a Security. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of the Guarantee of any Security that has
been duly authenticated and made available for delivery by the Trustee or any
Coupon appertaining thereto.
In case any officer of the Guarantor who shall have signed any Guarantee
that is endorsed on any Security shall cease to be such officer of the Guarantor
before such Security shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security nevertheless may be authenticated and
such Security and Guarantee may be delivered or disposed of as though the person
who signed such Guarantee had not ceased to be such officer of
E-3
the Guarantor; and any Guarantee endorsed on any Security may be signed on
behalf of the Guarantor by such persons as, at the actual date of the execution
of such Guarantee, shall be the proper officers of the Guarantor.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee, if any,
endorsed thereon.
SECTION 13.4. Limitation of the Guarantor's Liability. The Guarantor
and, by its acceptance of a Security issued under this Indenture, each Holder
hereby confirms that it is the intention of all parties that the obligations of
the Guarantor under Section 13.1 of this Indenture and the Guarantees, if any,
endorsed on the Securities shall not constitute a fraudulent conveyance or
fraudulent transfer under any applicable fraudulent conveyance, fraudulent
transfer, bankruptcy, insolvency or other similar law of any applicable
jurisdiction. To effectuate the foregoing intention, the Holders, by their
acceptance of the Securities and any Coupons appertaining thereto, and the
Guarantor hereby agree that the obligations of the Guarantor under its Guarantee
set forth in Section 13.1 of this Indenture and the Guarantees, if any, endorsed
on the Securities are limited to the maximum amount as will, after giving effect
to all other contingent and fixed liabilities of the Guarantor, result in the
obligations of the Guarantor under its Guarantee set forth in Section 13.1 of
this Indenture and the Guarantees, if any, endorsed on the Securities not
constituting a fraudulent conveyance or fraudulent transfer under applicable
federal or state law. Subject to the preceding limitation, the obligations of
the Guarantor under its Guarantee set forth in Section 13.1 of this Indenture
and its Guarantee, if any, endorsed on the Securities constitute a guarantee of
payment in full when due and not merely a guarantee of collectability.
E-4
EXHIBIT F
[FORM OF GUARANTEE TO BE ENDORSED ON SECURITIES]
GUARANTEE
For value received, Willamette Industries, Inc., an Oregon corporation
(the "Guarantor"), hereby irrevocably and unconditionally guarantees to the
Holder of the Security* upon which this Guarantee is endorsed [INSERT IF
APPLICABLE--and to the Holder of each Coupon appertaining thereto], and to the
Trustee on behalf of each such Holder, the due and punctual payment of the
principal of [INSERT IF APPLICABLE-- and premium, if any, and interest on] such
Security [INSERT IF APPLICABLE--and any Coupons appertaining thereto]
(including, without limitation, to the maximum extent permitted by law, interest
on any overdue installments of principal [INSERT IF APPLICABLE--, premium, if
any, or interest]) [INSERT IF APPLICABLE--and the due and punctual payment of
the sinking fund payments provided for pursuant to the terms of such Security],
when and as the same shall become due and payable, whether at maturity, upon
acceleration, upon repayment or repurchase at the option of the Holders or
otherwise, in accordance with the terms of such Security [INSERT IF APPLICABLE--
and the Coupons appertaining thereto] and the Indenture referred to therein. In
the case of any failure of the Issuer punctually to make any such payment, the
Guarantor hereby agrees to cause such payment to be made punctually when and as
the same shall become due and payable, whether at maturity, upon redemption,
upon acceleration, upon repayment or repurchase at the option of the Holder or
otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of the validity, regularity or
enforceability of the Security upon which this Guarantee is endorsed [INSERT IF
APPLICABLE--or any Coupon appertaining thereto] or the Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of any
Security [INSERT IF APPLICABLE--or any Coupon appertaining thereto] or by the
Trustee with respect to any provisions thereof or of the Indenture, the recovery
of any judgment against the Issuer, or any action to enforce the same, or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, any right to require the prior disposition
of assets of the Issuer to meet its obligations, protest or notice with respect
to such Security or the indebtedness evidenced thereby [INSERT IF APPLICABLE--or
any Coupon appertaining thereto] [INSERT IF APPLICABLE--or with respect to any
sinking fund payment required pursuant to the terms of such Security], and all
demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to the Security upon which it is endorsed [INSERT IF APPLICABLE--or
any Coupon appertaining thereto] except by payment in full of the principal of
[INSERT IF APPLICABLE--and premium, if any, and interest on] such Security
[INSERT IF APPLICABLE--or Coupon, as the case may be] (except to the extent that
the Guarantor is released from its obligations under the Indenture and this
Guarantee with respect
----------
* References to the "Security" may be changed to refer to the actual type of
debt security on which the Guarantee is endorsed.
F-1
to the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and
any Coupons appertaining thereto] as expressly provided in Section 3.9 of the
Indenture). The Guarantor hereby agrees that, in the event of a default in
payment of principal of [INSERT IF APPLICABLE--or premium, if any, or interest
on] the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--or
any Coupon appertaining thereto], [INSERT IF APPLICABLE--or a default in any
sinking fund payment referred to therein,] legal proceedings may be instituted
by the Trustee on behalf of, or by, the Holder of such Security [INSERT IF
APPLICABLE--or such Coupon, as the case may be,] on the terms and conditions set
forth in the Indenture, directly against the Guarantor to enforce this Guarantee
without first proceeding against the Issuer.
The Guarantor shall be subrogated to all rights of the Holders of the
Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and any
Coupons appertaining thereto] against the Issuer in respect of any amounts paid
by the Guarantor on account of such Security [INSERT IF APPLICABLE--or any such
Coupon] pursuant to the provisions of the Indenture or this Guarantee; provided,
however, that the Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation until the
principal of [INSERT IF APPLICABLE--and premium, if any, and interest on] such
Security and all other Securities of the same series [INSERT IF APPLICABLE--and
all Coupons appertaining thereto] issued under the Indenture shall have been
paid in full or such payment duly provided for.
All terms used in this Guarantee which are defined in the Indenture
referred to in the Security upon which this Guarantee is endorsed shall have the
meanings assigned to them in such Indenture.
[INSERT THE FOLLOWING IF THE ISSUER SHALL HAVE AGREED, PURSUANT TO A
REGISTRATION RIGHTS AGREEMENT OR SIMILAR INSTRUMENT OR AGREEMENT, TO PAY
ADDITIONAL INTEREST OR TO MAKE SIMILAR PAYMENTS WITH RESPECT TO THE SECURITIES
OF THE SERIES UPON WHICH THIS GUARANTEE IS ENDORSED--Pursuant to a [DESCRIBE
REGISTRATION RIGHTS AGREEMENT OR SIMILAR INSTRUMENT OR AGREEMENT] (the "[DEFINED
TERM FOR AGREEMENT]"), the Holder of the Security upon which this Guarantee is
endorsed [INSERT IF APPLICABLE--and any Coupons appertaining thereto] shall be
entitled to receive certain [INSERT DESCRIPTION OF ADDITIONAL INTEREST OR
SIMILAR PAYMENTS] ("additional interest") on this Security [INSERT IF
APPLICABLE--and any Coupons appertaining thereto] upon the terms and subject to
the conditions set forth in the [DEFINED TERM FOR AGREEMENT], and the
Guarantor's obligations under this Guarantee shall also be deemed to guarantee
the due and punctual payment of such additional interest on the same terms and
subject to the same conditions as its guarantee of interest on such Security
[INSERT IF APPLICABLE--and the Coupons appertaining thereto.]]
No recourse for the payment of the principal [INSERT IF APPLICABLE--or
premium, if any, or interest under] this Guarantee, or for any claim based
hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Guarantor contained in the Indenture or
in this Guarantee or because of any indebtedness evidenced hereby or thereby,
shall be had against any incorporator, as such, or against any past, present or
future stockholder, officer or director, as such, of the Guarantor or of any
successor, either directly or through the Guarantor or any successor, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all
F-2
such liability being expressly waived and released by the acceptance of the
Security upon which this Guarantee is endorsed and as part of the consideration
for the issue of such Security.
The Guarantor and, by its acceptance of the Security upon which this
Guarantee is endorsed, the Holder of such Security hereby confirms that it is
the intention of all parties that the obligations of the Guarantor under Section
13.1 of the Indenture and the Guarantees endorsed on such Security and on any
other Securities issued under the Indenture shall not constitute a fraudulent
conveyance or fraudulent transfer under any applicable fraudulent conveyance,
fraudulent transfer, bankruptcy, insolvency or other similar laws of any
applicable jurisdiction. To effectuate the foregoing intention, the Holder of
the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and
any Coupons appertaining thereto], by its acceptance thereof, and the Guarantor
hereby agree that the obligations of the Guarantor under Section 13.1 of the
Indenture and the Guarantee endorsed on such Security are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of the Guarantor, result in the obligations of the Guarantor under
Section 13.1 of the Indenture and the Guarantee endorsed on such Security and on
any other Securities issued under the Indenture not constituting a fraudulent
conveyance or fraudulent transfer under applicable federal or state law. Subject
to the preceding limitation, the obligations of the Guarantor under this
Guarantee constitute a guarantee of payment in full when due and not merely a
guarantee of collectability.
This Guarantee shall be governed by and construed in accordance with the
laws of the State of New York, except as may otherwise be required by mandatory
provisions of law.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guarantee is
endorsed shall have been executed by the Trustee under the Indenture by manual
signature of one of its authorized officers.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly
executed.
Dated:*
WILLAMETTE INDUSTRIES, INC.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
----------
* Each Guarantee shall be dated the date of the Security upon which it is
endorsed.
F-3
