Exhibit 4.17
CALCULATION AGENT AGREEMENT
THIS CALCULATION AGENT AGREEMENT dated as of March 6, 2002 between
Weyerhaeuser Company, a Washington corporation (hereinafter called the
"Issuer"), and JPMorgan Chase Bank, a New York banking corporation (hereinafter
sometimes called the "Calculation Agent" which term shall, unless the context
shall otherwise require, include its successors and assigns), having its
principal corporate trust office at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
Recitals of the Issuer
The Issuer proposes to issue from time to time debt securities
("Securities") under an Indenture dated as of April 1, 1986, as amended and
supplemented by the First Supplemental Indenture dated as of February 15, 1991,
the Second Supplemental Indenture dated as of February 1, 1993, the Third
Supplemental Indenture dated as of October 22, 2001, and the Fourth Supplemental
Indenture to be dated as of March 12, 2002 (as so amended and supplemented and
as the same may be further amended or supplemented from time to time, the
"Indenture"), between the Issuer and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank and Chemical Bank), as Trustee. Capitalized terms used in
this Agreement and not otherwise defined herein are used as defined in the
Indenture. Certain of the Securities may bear interest at one or more floating
rates determined by reference to an interest rate formula (the "Floating Rate
Securities") and the Issuer desires to engage the Calculation Agent to perform
certain services in connection therewith, including in connection with a series
of Floating Rate Securities designated as its "Floating Rate Notes due 2003"
(the "Floating Rate Notes due 2003") that the Issuer proposes to issue.
NOW IT IS HEREBY AGREED THAT:
1. The Issuer hereby appoints JPMorgan Chase Bank as
Calculation Agent for the Floating Rate Securities, upon the terms and
subject to the conditions herein mentioned, subject to the Issuer's
right to designate a different party as Calculation Agent for all or
any series of Floating Rate Securities, and JPMorgan Chase Bank hereby
accepts such appointment. This appointment shall apply only to the
Floating Rate Notes due 2003 and to any other series of Floating Rate
Securities for which no other Calculation Agent is designated in the
applicable prospectus, prospectus supplement, offering memorandum or
other similar offering document relating to the Floating Rate
Securities of such series and the term "Floating Rate Securities" in
this Agreement shall mean only the Floating Rate Notes due 2003 and any
other series of Floating Rate Securities as to which this appointment
applies. Subject to the foregoing, the Calculation Agent shall act as
an agent of the Issuer for the purpose of determining the interest rate
or rates on the Floating Rate Securities.
2. The Issuer agrees to deliver to the Calculation Agent,
prior to the earlier of (a) the date of original issuance of the
Floating Rate Securities of any series and (b) the first Interest
Determination Date (as hereinafter defined) with respect to the
Floating Rate Securities of such series, copies of the proposed form or
forms, as the case may be, of the Securities of such series, including
copies of the terms and conditions relating to the
determination of the interest rate thereunder. As used in this
Agreement, the term "Interest Determination Date" shall mean, with
respect to the Floating Rate Securities of any series, any date as of
which the interest rate on the Floating Rate Securities is to be
determined in accordance with the terms of such Floating Rate
Securities and the Indenture. The Issuer shall not issue any Floating
Rate Security prior to the receipt of confirmation from the Calculation
Agent of its acceptance of the proposed form of such Security. The
Calculation Agent hereby acknowledges that it has received copies of
the proposed form of the Floating Rate Notes due 2003 and accepts such
proposed form. The Calculation Agent agrees that it will calculate the
interest rate on the Floating Rate Notes due 2003 on each Interest
Determination Date for such notes.
3. The Issuer shall notify the Calculation Agent of the
original issuance of the Floating Rate Securities of any series prior
to the date of original issuance thereof and, at the time of such
original issuance or, if earlier, prior to the first Interest
Determination Date with respect to the Floating Rate Securities of such
series, shall deliver to the Calculation Agent the information required
to be provided by the Issuer for the calculation of the applicable
interest rate or rates thereunder. The Calculation Agent acknowledges
that the Issuer has notified the Calculation Agent of the issuance of
the Floating Rate Notes due 2003 and has delivered to the Calculation
Agent the information required by the preceding sentence. The
Calculation Agent shall calculate the applicable interest rates for
Floating Rate Securities of each series in accordance with the terms of
such Securities, the Indenture and the provisions of this Agreement
and, without limitation to the foregoing, the Calculation Agent shall
calculate such interest rate on the respective "calculation dates" or
other similar dates, if any, specified by the terms of such Securities
and the Indenture.
4. Upon the determination of an interest rate applicable to a
Floating Rate Security, the Calculation Agent shall promptly notify the
Issuer, the Trustee and any paying agent of such interest rate. Upon
the request of the Holder of a Floating Rate Security, the Calculation
Agent shall advise such Holder of the interest rate then in effect and,
if then determined, the interest rate that will become effective as of
the next succeeding date on which the interest rate on such Floating
Rate Note is to be reset. The provisions of the immediately preceding
sentence shall inure to the benefit of the Holders of the Floating Rate
Securities from time to time, as third party beneficiaries, and may be
enforced by such Holders.
5. The Issuer will pay such compensation as shall be agreed
upon with the Calculation Agent and the out-of-pocket expenses,
including reasonable counsel fees, incurred by the Calculation Agent in
connection with its duties hereunder, upon receipt of such invoices as
the Issuer shall reasonably require.
6. Notwithstanding any satisfaction or discharge of the
Securities or the Indenture, the Issuer will indemnify the Calculation
Agent against any losses, liabilities, costs, claims, actions or
demands which it may incur or sustain or which may be made against it
in connection with its appointment or the exercise of its powers and
duties hereunder as well as the reasonable costs, including the
reasonable expenses and fees of counsel in defending any claim, action
or demand, except such as may result from the
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gross negligence, willful misconduct or bad faith of the Calculation
Agent or any of its employees or agents. The Calculation Agent shall
give the Issuer prompt notice of any such claim, action or demand known
to it, but failure to do so shall not affect the indemnity provided
hereby. Except as provided in the preceding sentence, the Calculation
Agent shall incur no liability and shall be indemnified and held
harmless by the Issuer for, or in respect of, any actions taken or
suffered to be taken in good faith by the Calculation Agent in reliance
upon (i) the written opinion or advice of counsel or (ii) written
instructions from an officer of the Issuer.
7. The Calculation Agent accepts its obligations herein set
forth upon the terms and conditions hereof, including the following, to
all of which the Issuer agrees:
(i) in acting under this Agreement and in connection
with the Floating Rate Securities, the Calculation Agent,
acting as agent for the Issuer, does not assume any obligation
toward, or any relationship of agency or trust for or with,
any of the Holders of such Floating Rate Securities, except as
set forth in the last sentence of Section 4 above;
(ii) unless herein otherwise specifically provided,
any order, certificate, notice, request or communication from
the Issuer made or given under any provisions of this
Agreement shall be sufficient if signed by any person whom the
Calculation Agent reasonably believes to be a duly authorized
officer or attorney-in-fact of the Issuer;
(iii) the Calculation Agent shall be obligated to
perform only such duties as are set forth specifically herein,
in the Floating Rate Securities or in the Indenture and any
duties necessarily incidental thereto;
(iv) the Calculation Agent shall be protected and
shall incur no liability for or in respect of any action taken
or omitted to be taken or anything suffered by it in reliance
upon any provision contained in a Floating Rate Security, the
Indenture or any information supplied to it by an officer of
the Issuer pursuant to this Agreement, including the
information to be supplied pursuant to paragraph 3 above;
(v) the Calculation Agent, whether acting for itself
or in any other capacity, may become the owner or pledgee of
Securities with the same rights as it would have had if it
were not acting hereunder as Calculation Agent;
(vi) the Calculation Agent shall incur no liability
hereunder except for loss sustained by reason of its or its
employees' or agents' gross negligence, willful misconduct or
bad faith; and
(vii) in no event shall the Calculation Agent be
liable for special, indirect or consequential loss or damage
of any kind whatsoever (including but not limited to lost
profits), even if the Calculation Agent has been advised of
the likelihood of such loss or damage and regardless of the
form of action.
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8. (a) The Issuer agrees to notify the Calculation Agent at
least three Business Days prior to the earlier of (i) the original
issuance of Floating Rate Securities of any series with an interest
rate to be determined by any formula that would require the Calculation
Agent to select banks or other financial institutions (the "Reference
Banks") for purposes of quoting rates and (ii) the first Interest
Determination Date therefor. Immediately prior to seeking such quotes
from such Reference Banks, the Calculation Agent will notify the Issuer
and the Trustee of the names and addresses of such Reference Banks. The
Calculation Agent shall not be responsible to the Issuer or any third
party for any failure of the Reference Banks to fulfill their duties or
meet their obligations as Reference Banks or as a result of the
Calculation Agent having acted (except in the event of gross
negligence, wilful misconduct or bad faith) on any quotation or other
information given by any Reference Bank which subsequently may be found
to be incorrect.
(b) Except as provided below, the Calculation Agent may at any
time resign as Calculation Agent by giving written notice to the Issuer
and the Trustee of such intention on its part, specifying the date on
which its desired resignation shall become effective, provided that
such notice shall be given not less than 60 days prior to the said
effective date unless the Issuer agrees in writing. The Calculation
Agent may be removed by the filing with it and the Trustee of an
instrument in writing signed by the Issuer specifying such removal and
the date when it shall become effective. Any resignation or removal of
the Calculation Agent shall take effect only upon:
(i) the appointment by the Issuer as hereinafter
provided of a successor Calculation Agent; and
(ii) the acceptance of such appointment by such
successor Calculation Agent; provided, however, that in the
event the Calculation Agent has given not less than 60 days'
prior notice of its desired resignation, and during such 60
days there has not been acceptance by a successor Calculation
Agent of its appointment as successor Calculation Agent, the
Calculation Agent so resigning may petition any court of
competent jurisdiction for the appointment of a successor
Calculation Agent. The Issuer covenants that it shall appoint
a successor Calculation Agent as soon as practicable after
receipt of any notice of resignation hereunder. Upon its
resignation or removal becoming effective, the retiring
Calculation Agent shall be entitled to the payment of all
compensation and the reimbursement of its expenses (including
reasonable counsel fees) incurred by such retiring Calculation
Agent, in accordance with paragraph 5 hereof, to the date such
resignation or removal becomes effective.
(c) If at any time the Calculation Agent shall resign or be
removed, or shall become incapable of acting or shall be adjudged
bankrupt or insolvent, or liquidated or dissolved, or an order is made
or an effective resolution is passed to wind up the Calculation Agent,
or if the Calculation Agent shall file a voluntary petition in
bankruptcy or make an assignment for the benefit of its creditors, or
shall consent to the appointment of a receiver, administrator or other
similar official of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they
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mature, or if a receiver, administrator or other similar official of
the Calculation Agent or of all or any substantial part of its property
shall be appointed, or if any order of any court shall be entered
approving any petition filed by or against the Calculation Agent under
the provisions of any applicable bankruptcy or insolvency law, or if
any public officer shall take charge or control of the Calculation
Agent or its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then a successor Calculation Agent shall
be appointed by the Issuer by an instrument in writing filed with the
predecessor Calculation Agent, the successor Calculation Agent and the
Trustee. Upon the appointment as aforesaid of a successor Calculation
Agent and acceptance by the latter of such appointment the former
Calculation Agent shall cease to be Calculation Agent hereunder.
(d) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Issuer and the Trustee an
instrument accepting such appointment hereunder, and thereupon such
successor Calculation Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers,
immunities, duties and obligations of such predecessor with like effect
as if originally named as the Calculation Agent hereunder, and such
predecessor shall thereupon become obliged to transfer and deliver, and
such successor Calculation Agent shall be entitled to receive, copies
of any relevant records maintained by such predecessor Calculation
Agent.
(e) Any corporation into which the Calculation Agent may be
merged or converted or any corporation with which the Calculation Agent
may be consolidated or any corporation resulting from any merger,
conversion or consolidation to which the Calculation Agent shall be a
party shall, to the extent permitted by applicable law, be the
successor Calculation Agent under this Agreement without the execution
or filing of any paper or any further act on the part of any of the
parties hereto. Notice of any such merger, conversion or consolidation
shall forthwith be given to the Issuer and the Trustee.
(f) The provisions of paragraph 6 hereof shall survive any
resignation or removal hereunder.
9. Any notice required to be given hereunder shall be
delivered in person or by overnight courier, sent by letter or telecopy
or communicated by telephone (subject, in the case of communication by
telephone, to confirmation dispatched within two Business Days by
letter or telecopy), in the case of the Issuer, to it at Weyerhaeuser
Company, X.X. Xxx 0000, Xxxxxxx Xxx, Xxxxxxxxxx 00000-0000, Attention:
Treasurer; in the case of the Calculation Agent, to it at the address
set forth in the heading of this Agreement, Attention: Institutional
Trust Services; in the case of the Trustee, to it at 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Institutional Trust
Services; or, in any case, to any other address of which the party
receiving notice shall have notified the party giving such notice in
writing.
10. This Agreement may be amended only by a writing duly
executed and delivered by each of the parties signing below.
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11. The provisions of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
12. This Agreement may be executed in counterparts and the
executed counterparts shall together constitute a single instrument.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed and delivered as
of the day and year first above written.
WEYERHAEUSER COMPANY
By: _________________________________
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
JPMORGAN CHASE BANK
By: _________________________________
Name:
Title:
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