Contract
[Include
the following legend (the “DTC Legend”) only in Global 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 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.
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No. R-1
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Principal
Amount: $·,000,000
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CUSIP
No. 962166 BV5
ISIN No.
US962166BV52
WEYERHAEUSER
COMPANY
7.375%
Note due 2019
WEYERHAEUSER
COMPANY, a Washington corporation (the “Issuer,” which term includes any
successor thereto under the Indenture referred to below), for value received,
hereby promises to pay to ·
[For inclusion in Global
Securities - Cede & Co.], or registered assigns, at the office or
agency of the Issuer maintained for such purpose in the Borough of Manhattan,
The City of New York, the principal sum of ·
Dollars ($·,000,000)
on October 1, 2019, 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 April 1 and
October 1 of each year (each, an “Interest Payment Date”), commencing April 1,
2010, 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 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 October 1, 2009, 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 will be made against presentation of this Note at the office or
agency of the Issuer maintained for such purpose in the Borough of Manhattan,
The City of New York (and the offices or agencies of the Issuer maintained for
such purpose in any such other locations, if any, as the Issuer may from time to
time elect) or, 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 foregoing, if the date hereof is after
March 15 or September 15 (each, a “Regular Record Date”), as the case may be,
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 October 1,
2009; and provided,
further, that, notwithstanding the foregoing provisions of this sentence,
if no interest has been paid or duly provided for on these Notes, then this Note
shall bear interest from October 1, 2009. 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 Regular Record Date next
preceding such Interest Payment Date. Interest on this Note shall be
calculated on the basis of a 360-day year consisting of twelve 30-day
months.
-1-
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
between the Issuer and The Bank of New York Mellon Trust Company, N.A. (formerly
known as The Bank of New York Trust Company, N.A.), as successor trustee (herein
called the “Trustee”, which term includes any successor trustee under the
Indenture) to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank
and Chemical Bank), 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”).
-2-
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:
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(1)
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100%
of the principal amount of the Notes to be redeemed,
and
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(2)
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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 50 basis
points,
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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, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming 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.
“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 (as determined by the Independent Investment Banker) 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 Independent Investment Banker obtains fewer than four but more
than one such Reference Treasury Dealer Quotations, the average (as determined
by the Independent Investment Banker) of all such quotations, or (3) if the
Independent Investment Banker obtains only one such Reference Treasury Dealer
Quotation, such Reference Treasury Dealer Quotation.
“Independent
Investment Banker” means, with respect to any Redemption Date for the Notes,
Xxxxxx Xxxxxxx & Co. Incorporated and its successors, Deutsche Bank
Securities Inc. and its successors or X. X. Xxxxxx Securities Inc. and its
successors, whichever shall be selected by the Issuer, or, if all 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
Issuer.
-3-
“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 Dealers” means, with respect to any Redemption Date for the Notes,
Xxxxxx Xxxxxxx & Co. Incorporated, Deutsche Bank Securities Inc. 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 Issuer shall substitute therefor another Primary Treasury Dealer),
and one other Primary Treasury Dealer selected by 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
Independent Investment Banker, 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 Independent Investment Banker by that Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding that Redemption Date. As used in the immediately preceding
sentence, 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.
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 of 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.
-4-
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 $2,000 and
any integral multiple of $1,000 in excess thereof. 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.
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, 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.
-5-
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.
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 signatory of the
Trustee.
Offer
to Purchase Upon Change of Control Triggering Event
If a
Change of Control Triggering Event occurs, the Issuer will make an offer (the
“Change of Control Offer”) to each Holder of Notes to repurchase (at such
Holder’s option) all or any part (in a principal amount of $2,000 or an integral
multiple of $1,000 in excess thereof) of such Holder’s Notes on the terms
described below. In the Change of Control Offer, the Issuer will
offer payment in cash equal to 101% of the principal amount of the Notes
repurchased, plus accrued and unpaid interest, if any, on the Notes (or portions
thereof) repurchased to, but excluding, the date of repurchase (the “Change of
Control Payment”); provided that, notwithstanding the foregoing, payments of
interest on the Notes that are due and payable on any dates falling on or prior
to such a date of repurchase will be payable to the Holders of those Notes
registered as such at the close of business on the relevant record dates in
accordance with their terms and the terms of the Indenture. Within 30
days following any Change of Control Triggering Event, the Issuer will mail (or
cause to be mailed) a notice (the “Change of Control Purchase Notice”) to all
Holders of Notes (with a copy to the Trustee) describing the transaction or
transactions constituting the Change of Control Triggering Event and offering to
repurchase the Notes on the date specified in such notice, which date will be a
business day no earlier than 30 days and no later than 60 days after the date
such notice is mailed (the “Change of Control Payment Date”).
-6-
Holders
electing to have a Note or portion thereof repurchased pursuant to a Change of
Control Offer will be required to surrender the Note (which, in the case of
Notes in book-entry form, may be by book-entry transfer) to the
Trustee (or to such other agent as may be appointed by the Issuer for such
purpose) at the address specified in the applicable Change of Control Purchase
Notice prior to the close of business on the business day immediately preceding
the applicable Change of Control Payment Date and to comply with other
procedures set forth in such Change of Control Purchase Notice. As
used in the preceding sentence and in the last sentence of the preceding
paragraph, the term “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.
On any
Change of Control Payment Date, the Issuer will, to the extent
lawful:
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(1)
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accept
for payment all Notes or portions of Notes properly tendered pursuant to
the Change of Control Offer;
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(2)
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deposit
with the Trustee (if the Trustee is acting as paying agent for the Notes)
or any other duly appointed paying agent for the Notes an amount equal to
the Change of Control Payment in respect of all Notes or portions of Notes
properly tendered; and
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(3)
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deliver
the repurchased Notes or cause the repurchased Notes to be delivered to
the Trustee for cancellation, accompanied by an Officers’ Certificate
stating the aggregate principal amount of repurchased Notes and that all
conditions precedent provided for in the Notes and the Indenture relating
to such Change of Control Offer and the repurchase of Notes by the Issuer
pursuant thereto have been complied
with.
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Interest
on Notes and portions of Notes duly tendered for repurchase pursuant to a Change
of Control Offer will cease to accrue on and after the applicable Change of
Control Payment Date, unless the Issuer shall have failed to accept such Notes
and such portions of Notes for payment, failed to deposit the total Change of
Control Payment in respect thereof or failed to deliver the Officers’
Certificate, all as required by, and in accordance with, the immediately
preceding sentence.
The
Issuer will promptly pay, or will cause the Trustee (if the Trustee is acting as
paying agent for the Notes) or another duly appointed paying agent for the Notes
to promptly pay (by application of funds deposited by the Issuer), to each
Holder of Notes (or portions thereof) duly tendered and accepted for payment by
the Issuer pursuant to a Change of Control Offer, the Change of Control Payment
for such Notes, and the Issuer will cause the Trustee to promptly authenticate
and mail (or deliver by book entry transfer, as applicable) to each such Holder
a new Note equal in principal amount to the unpurchased portion, if any, of the
Notes surrendered by such Holder; provided that each such new Note will be in a
principal amount of $2,000 or an integral multiple of $1,000 in excess
thereof. The Issuer shall, or shall cause the Trustee to, promptly
mail (or cause to be delivered by book entry transfer, as applicable) to the
Holders thereof any Notes not so accepted for payment by the
Issuer.
-7-
The
Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent those
laws and regulations are applicable in connection with the repurchase of Notes
as a result of a Change of Control Triggering Event. To the extent
that the provisions of any such securities laws or regulations conflict with the
Change of Control Offer provisions of the Notes, the Issuer shall comply with
those securities laws and regulations and shall not be deemed to have breached
its obligations under the Change of Control Offer provisions of the Notes by
virtue of such conflict.
The
Issuer will not be required to make a Change of Control Offer upon the
occurrence of a Change of Control Triggering Event if a third party makes such
an offer in the manner, at the times and otherwise in compliance with the
requirements for an offer made by the Issuer and the third party purchases all
Notes properly tendered under its offer and delivers the repurchased Notes or
causes the repurchased Notes to be delivered to the Trustee for cancellation on
the applicable Change of Control Payment Date. In addition, the
Issuer will not repurchase any Notes pursuant to a Change of Control Offer if
there has occurred and is continuing on the applicable Change of Control Payment
Date an Event of Default under the Indenture (other than an Event of Default
resulting from the Issuer’s failure to comply with any of the provisions of the
Notes or the Indenture relating to such Change of Control Offer or the
repurchase of Notes pursuant thereto, including, without limitation, any default
in payment of the Change of Control Payment), including Events of Default
arising with respect to other series of Securities outstanding under the
Indenture.
The
foregoing Change of Control provisions of the Notes shall cease to be applicable
(and any failure of the Issuer to comply therewith shall not constitute an Event
of Default) if (i) the Indenture shall have ceased to be of further effect with
respect to the Notes pursuant to Section 10.1(A) of the Indenture (as used in
this paragraph, “satisfaction and discharge”), or (ii) the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all of the Notes
pursuant to Section 10.1(B) of the Indenture (as used in this paragraph,
“defeasance”) (it being understood that, in addition to the other conditions to
defeasance set forth in the Indenture, any such defeasance shall not be
effective until the 121st day after the date of deposit referred to in
subparagraph (a) of Section 10.1(B) of the Indenture), and, in the case of both
clause (i) and (ii) of this sentence, the Issuer shall have satisfied the
conditions set forth in the Indenture to such satisfaction and discharge or such
defeasance, as the case may be, and (without limitation to the foregoing) shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
(each of which comply with Section 11.5 of the Indenture), each to the effect
that all conditions precedent to such satisfaction and discharge or defeasance,
as the case may be, provided for in the Indenture have been complied
with.
For
purposes of the provisions set forth under this caption “Offer to Purchase Upon
Change of Control Triggering Event,” the following terms have the respective
meanings specified below:
“Capital
Stock” means, with respect to any Person, any and all shares, interests,
participations or other equivalents (however designated) in the equity of such
Person (including, without limitation, (i) with respect to a corporation, common
stock, preferred stock and any other capital stock, (ii) with respect to a
partnership, partnership interests (whether general or limited), and (iii) with
respect to a limited liability company, limited liability company
interests).
-8-
“Change
of Control” means the occurrence of any of the following: (a) the consummation
of any transaction (including, without limitation, any merger or consolidation)
resulting in any “person” (as that term is used in Section 13(d)(3) of the
Exchange Act) (other than the Issuer or any of its subsidiaries) becoming the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act),
directly or indirectly, of more than 50% of the Issuer’s outstanding Voting
Stock or other Voting Stock into which the Issuer’s Voting Stock is
reclassified, consolidated, exchanged or changed, measured by voting power
rather than number of shares; (b) the direct or indirect sale, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one transaction or a series of related transactions, of all or substantially
all of the properties or assets of the Issuer and its subsidiaries, taken as a
whole, to one or more Persons (other than the Issuer or any of it subsidiaries);
or (c) the first day on which a majority of the members of the Issuer’s board of
directors are not Continuing Directors. Notwithstanding the foregoing, a
transaction will not be deemed to be a Change of Control if (1) the Issuer
becomes a direct or indirect wholly-owned subsidiary of a holding company and
(2)(y) the direct or indirect holders of the Voting Stock of such holding
company immediately following that transaction are substantially the same as the
holders of the Issuer’s Voting Stock immediately prior to that transaction or
(z) immediately following that transaction no “person” (as that term is used in
Section 13(d)(3) of the Exchange Act), other than a holding company satisfying
the requirements of this sentence, is the “beneficial owner” (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 50% of the outstanding Voting Stock of such holding company, measured by
voting power rather than number of shares. As used in this paragraph,
the term “subsidiary” means, with respect to any Person (the “Parent”), any
other Person at least a majority of whose outstanding Voting Stock, measured by
voting power rather than number of shares, is owned, directly or indirectly, at
the date of determination by the Parent and/or one or more other subsidiaries of
the Parent.
“Change
of Control Triggering Event” means the occurrence of both a Change of Control
and a Rating Event.
“Continuing
Directors” means, as of any date of determination, any member of the Issuer’s
board of directors who (a) was a member of the Issuer’s board of directors on
the date the Notes were originally issued or (b) was nominated for election,
elected or appointed to the Issuer’s board of directors with the approval of a
majority of the Continuing Directors who were members of the Issuer’s board of
directors at the time of such nomination, election or appointment (either by a
specific vote or by approval of the Issuer’s proxy statement in which such
member was named as a nominee for election as a director, without objection to
such nomination). If at any time the Issuer is not a corporation,
then references in the foregoing sentence to members of its board of directors
shall be deemed to include, as applicable, the members of any other governing
body thereof performing a similar function.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any successor
thereto.
-9-
“Investment
Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by
Xxxxx’x and BBB- (or the equivalent) by S&P, and the equivalent investment
grade credit rating from any replacement Rating Agency or Rating Agencies
selected by the Issuer.
“Xxxxx’x”
means Xxxxx’x Investors Service, Inc.
“Rating
Agencies” means (a) each of Xxxxx’x and S&P; and (b) if either of Xxxxx’x or
S&P ceases to rate the Notes or fails to make a rating of the Notes publicly
available for reasons outside of the Issuer’s control, a “nationally recognized
statistical rating organization” (within the meaning of Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act) selected by the Issuer (as certified by a Board
Resolution delivered to the Trustee) as a replacement for Moody’s or S&P, or
both of them, as the case may be.
“Rating
Event” means the rating on the Notes is lowered by each of the Rating Agencies
and the Notes are rated below an Investment Grade Rating by each of the Rating
Agencies on any day within the 60-day period (which 60-day period shall be
extended so long as the rating of the Notes is under publicly announced
consideration for a possible downgrade by either of the Rating Agencies) after
the earlier of (a) the occurrence of a Change of Control and (b) public notice
of the occurrence of a Change of Control or the Issuer’s intention to effect a
Change of Control; provided, however, that a Rating Event otherwise arising by
virtue of a particular reduction in rating will not be deemed to have occurred
in respect of a particular Change of Control (and thus will not be deemed a
Rating Event for purposes of the definition of “Change of Control Triggering
Event”) if each Rating Agency making the reduction in rating to which this
definition would otherwise apply does not announce or publicly confirm or inform
the Trustee in writing at the Issuer’s request that the reduction was the
result, in whole or in part, of any event or circumstance comprised of or
arising as a result of, or in respect of, the applicable Change of Control
(whether or not the applicable Change of Control has occurred at the time of the
Rating Event).
“S&P”
means Standard & Poor’s Rating Services, a division of The XxXxxx-Xxxx
Companies, Inc.
“Voting
Stock” means, with respect to any specified “person” (as that term is used in
Section 13(d)(3) of the Exchange Act) as of any date, any Capital
Stock of such person that is at the time entitled to vote generally in the
election of the board of directors of such person or, if such person is not a
corporation, any governing body thereof performing a similar
function.
As used
under this caption “Offer to Purchase Upon Change of Control Triggering Event,”
all references to sections of the Exchange Act and to rules and regulations
under the Exchange Act shall include any successor provisions
thereto.
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For
purposes of clarity, the Issuer confirms that (1) the provisions set forth under
this caption “Offer to Purchase Upon Change of Control Triggering Event”
constitute covenants of the Issuer under the Indenture in respect of, and solely
for the benefit of the Holders of, the Notes, (2) for purposes of Section
5.1(d), Section 5.10, Section 8.2 and any other applicable provisions of the
Indenture, the Notes shall be deemed to be the only series of Securities
affected by such covenants or by any default in the performance, or breach, of
any such covenants or any default or Event of Default resulting therefrom or by
any change therein or amendment thereto or waiver thereof and, without
limitation to the foregoing, any such default or Event of Default shall be
deemed to be a default or Event of Default, as the case may be, only with
respect to the Notes, (3) such covenants shall constitute a “right of repayment
at the option of the Securityholder” for purposes of Section 8.2 of the
Indenture and, without limitation to the foregoing, no supplemental indenture
entered into pursuant to Article Eight of the Indenture shall reduce the amount
payable in respect of, or extend the time for payment of, any Notes pursuant to
such covenants without the consent of the Holder of each Note so affected and
(4) any failure by the Issuer to pay all or any part of the Change of Control
Payment as and when required pursuant to such covenants shall constitute an
Event of Default with respect to the Notes under Section 5.1(b) of the
Indenture.
Additional
Covenants
The
Issuer agrees that, at any and all times that (1) any of the Notes are
Outstanding and (2) any Prior Indebtedness is entitled to the benefit of,
covered by, or otherwise subject to, the Original Assumption
Agreement:
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(A)
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the
Issuer will not cause or permit the Second Assumption Agreement to be
terminated or to cease to be in full force and effect and will take and
cause to be taken (by WNR or otherwise) all such action as may
be necessary so that the Second Assumption Agreement shall remain in full
force and effect, and
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(B)
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the
Issuer will take or cause to be taken (by WNR or otherwise) all such
action (including, without limitation, entering into and causing WNR to
enter into amendments or supplements to the Second Assumption Agreement)
so that the terms of the Second Assumption Agreement shall be at least as
favorable (as reasonably determined by the Issuer) to the Holders of the
Notes as the terms of the Original Assumption Agreement are to the holders
of any Prior Indebtedness (for purposes of clarity, the Second Assumption
Agreement, as in effect on October 1, 2009, shall be deemed to be as
favorable to the Holders of the Notes as the Original Assumption
Agreement, as in effect on such date, is to the holders of the Prior
Indebtedness).
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The
provisions set forth in the immediately preceding paragraph shall cease to be
applicable (and any failure of the Issuer to comply therewith shall not
constitute an Event of Default with respect to the Notes under the Indenture)
if (i) the Indenture shall have ceased to be of further effect with
respect to the Notes pursuant to Section 10.1(A) of the Indenture (as used in
this paragraph, “satisfaction and discharge”), or (ii) the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all of the Notes
pursuant to Section 10.1(B) of the Indenture (as used in this paragraph,
“defeasance”) (it being understood that, in addition to the other conditions to
defeasance set forth in the Indenture, any such defeasance shall not be
effective until the 121st day after the date of deposit referred to in
subparagraph (a) of Section 10.1(B) of the Indenture), and, in the case of both
clause (i) and (ii) of this sentence, the Issuer shall have satisfied the
conditions set forth in the Indenture to such satisfaction and discharge or such
defeasance, as the case may be, and (without limitation to the foregoing) shall
have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel
(each of which comply with Section 11.5 of the Indenture), each to the effect
that all conditions precedent to such satisfaction and discharge or defeasance,
as the case may be, provided for in the Indenture have been complied
with.
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For
purposes of the provisions set forth under this caption “Additional Covenants,”
the following terms have the respective meanings set forth below:
“Original
Assumption Agreement” means the Assumption Agreement dated as of January 1, 2009
between the Issuer and WNR, as the same may be amended or supplemented from time
to time.
“Prior
Indebtedness” means any indebtedness, bonds, notes, debentures or other similar
instruments which were entitled to the benefit of, covered by, or otherwise
subject to, the Original Assumption Agreement as of October 1, 2009, including,
without limitation, all indebtedness listed on Schedule 1 to the Original
Assumption Agreement as of such date.
“Second
Assumption Agreement” means the Assumption Agreement dated as of October 1, 2009
between the Issuer and WNR, as the same may be amended or supplemented from time
to time.
“WNR”
means Weyerhaeuser NR Company, a Washington corporation, and its
successors.
For
purposes of clarity, the Issuer confirms that (1) the provisions set forth under
this caption “Additional Covenants” constitute covenants of the Issuer under the
Indenture in respect of, and solely for the benefit of the Holders of, the Notes
and (2) for purposes of Section 5.1(d), Section 5.10, Section 8.2 and any other
applicable provisions of the Indenture, the Notes shall be deemed to be the only
series of Securities affected by such covenants or by any default in the
performance, or breach, of any such covenants or any default or Event of Default
resulting therefrom or by any change therein or amendment thereto or waiver
thereof and, without limitation to the foregoing, any such default or Event of
Default shall be deemed to be a default or Event of Default, as the case may be,
only with respect to the Notes.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, Xxxxxxxxxxxx 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:
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WEYERHAEUSER
COMPANY
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[SEAL]
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By:
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Name: Xxxxxxx
X. Xxxxx
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Title: Vice
President and
Treasurer
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Attest:
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Name: Xxxxxx
X. Xxxxx
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Title: Corporate
Secretary and
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Assistant General Counsel
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TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This is
one of the Securities of the series designated herein and referred to in the
within-mentioned Indenture.
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THE
BANK OF NEW YORK MELLON TRUST
COMPANY,
N.A.,
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as
Trustee
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By:
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Authorized
Signatory
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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:
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TEN
COM—as tenants in common
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UNIF GIFT MIN ACT - -
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__________________Custodian__________________
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TEN
ENT—as tenants by the entireties
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(Cust)
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(Minor)
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XX
XXX—as joint tenants with right of survivorship
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Under
Uniform Gifts to Minors
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and
not as tenants in common
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Act________________________________________
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(State)
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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
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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.
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Signed:
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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.
-14-
