Exhibit (4)(v)
GUARANTEE AGREEMENT
DATED AS OF _________ __, 20__
BY AND BETWEEN
WEYERHAEUSER COMPANY,
AS GUARANTOR
AND
JPMORGAN CHASE BANK,
AS TRUSTEE
CROSS-REFERENCE TABLE*
Section of
Trust Indenture Act Section of
of 1939, as amended Guarantee Agreement
310(a)..................................................... 4.1(a)
310(b).................................................. 2.8;4.1(c)
310(c).................................................. Inapplicable
311(a).......................................................2.2(b)
311(b)..................................................... 2.2(b)
311(c)................................................. Inapplicable
312(a)................................................. 2.2(a); 2.9
312(b).................................................. 2.2(b);2.9
312(c)..................................................... 2.9
313(a)..................................................... 2.3
313(b)..................................................... 2.3
313(c)..................................................... 2.3
313(d)..................................................... 2.3
314(a)..................................................... 2.4
314(b)................................................. Inapplicable
314(c)..................................................... 2.5
314(d)................................................. Inapplicable
314(e)..................................................... 2.5
314(f)................................................. Inapplicable
315(a)................................................. 1(d); 3.2(a)
315(b)..................................................... 2.7(a)
315(c)..................................................... 3.1(c)
315(d)..................................................... 3.1(d)
316(a).................................................. 2.6; 5.4(a)
316(b)..................................................... 5.3
316(c)................................................. Inapplicable
317(a)..................................................... 2.10
317(b)................................................. Inapplicable
318(a)..................................................... 2.1(b)
* This Cross-Reference Table does not constitute part of the Guarantee Agreement
and shall not affect the interpretation of any of its terms or provisions.
ii
Table of Contents
ARTICLE I DEFINITIONS AND INTERPRETATION.....................................1
SECTION 1.1 Definitions and Interpretation................................1
ARTICLE II TRUST INDENTURE ACT..............................................4
SECTION 2.1 Trust Indenture Act; Application..............................4
SECTION 2.2 Lists of Holders of Securities................................4
SECTION 2.3 Reports by the Guarantee Trustee..............................5
SECTION 2.4 Periodic Reports to Guarantee Trustee.........................5
SECTION 2.5 Evidence of Compliance with Conditions Precedent..............5
SECTION 2.6 Guarantee Events of Default; Waiver...........................5
SECTION 2.7 Guarantee Event of Default; Notice............................6
SECTION 2.8 Conflicting Interests.........................................6
ARTICLE III POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE..................6
SECTION 3.1 Powers and Duties of the Guarantee Trustee....................6
ARTICLE IV GUARANTEE TRUSTEE...............................................10
SECTION 4.1 Guarantee Trustee; Eligibility...............................10
SECTION 4.2 Appointment, Removal and Resignation of Guarantee
Trustee...............................................................10
ARTICLE V GUARANTEE........................................................11
SECTION 5.1 Guarantee....................................................11
SECTION 5.3 Waiver of Notice and Demand..................................11
SECTION 5.4 Obligations Not Affected.....................................12
SECTION 5.5 Rights of Holders............................................13
SECTION 5.6 Guarantee of Payment.........................................13
SECTION 5.7 Subrogation..................................................13
SECTION 5.8 Independent Obligations......................................13
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION.......................14
SECTION 6.1 Limitation of Transactions...................................14
SECTION 6.2 Ranking......................................................14
SECTION 6.3 Subordination of Common Securities...........................14
ARTICLE VII TERMINATION....................................................14
SECTION 7.1 Termination..................................................14
iii
ARTICLE VIII INDEMNIFICATION...............................................15
SECTION 8.1 Indemnification..............................................15
ARTICLE IX MISCELLANEOUS...................................................15
SECTION 9.1 Successors and Assigns.......................................15
SECTION 9.2 Amendments...................................................15
SECTION 9.3 Notices......................................................16
SECTION 9.4 Benefit......................................................16
SECTION 9.5 Governing Law................................................16
iv
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT ("Guarantee"), dated as of ________ , 20__, is
executed and delivered by Weyerhaeuser Company, a New York corporation (the
"Guarantor"), and JPMorgan Chase Bank, a New York banking corporation, as
trustee (the "Guarantee Trustee"), for the benefit of the Holders (as defined
herein) from time to time of the Securities (as defined herein) of Weyerhaeuser
Capital Trust II, a Delaware statutory business trust (the "Trust").
WHEREAS, pursuant to the Trust Agreement (as defined herein), the Trust
may issue up to $ ___________ in aggregate liquidation amount of preferred
securities, having a liquidation amount of $______ per preferred security and
designated the "___% Trust Preferred Securities" of the Trust (the "Preferred
Securities") and up to $____________ aggregate liquidation amount of common
securities, having a liquidation amount of $___ per security and designated the
"___% Common Securities" of the Trust (the "Common Securities" and, together
with the Preferred Securities, the "Securities");
WHEREAS, as an incentive for the Holders to purchase the Securities, the
Guarantor desires irrevocably and unconditionally to agree, to the extent set
forth in this Guarantee, to pay to the Holders of the Securities the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein; and
WHEREAS, if an Event of Default (as defined herein) has occurred and is
continuing, the rights of holders of the Common Securities to receive Guarantee
Payments (as defined herein) under this Guarantee are subordinated to the rights
of Holders of Preferred Securities to receive Guarantee Payments under this
Guarantee.
NOW, THEREFORE, in consideration of the purchase by each Holder of
Securities, which purchase the Guarantor hereby agrees shall benefit the
Guarantor, the Guarantor executes and delivers this Guarantee for the benefit of
the Holders.
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Guarantee, unless the context otherwise requires:
(a) Capitalized terms used in this Guarantee but not defined in the
preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Guarantee has the same meaning
throughout;
(c) all references to "the Guarantee" or "this Guarantee" are to this
Guarantee as modified, supplemented or amended from time to time;
1
(d) all references in this Guarantee to Articles and Sections are to
Articles and Sections of this Guarantee unless otherwise
specified;
(e) a term defined in the Trust Indenture Act has the same meaning when
used in this Guarantee unless other wise defined in this Guarantee
or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of the
Securities Act of 1933, as amended, or any successor rule thereunder.
"Business Day" has the meaning specified in the Trust Agreement
"Common Securities" has the meaning specified in the Recitals hereto.
"Common Shares" means the common shares, par value $1.25 per share, of the
Guarantor.
"Debentures" means the series of __________ debt securities of the
Guarantor designated the _________________ Due ________ held by the Property
Trustee as defined in the Trust Agreement.
"Global Securities" shall have the meaning specified in the Trust
Agreement.
"Guarantee Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Securities Guarantee.
"Guarantee Payments" means the following payments or distributions,
without duplication, with respect to the Securities, to the extent not paid or
made by the Trust: (i) any accumulated and unpaid Distributions (as defined in
the Trust Agreement) required to be paid on the Securities, to the extent that
the Trust has sufficient funds avail able therefor at the time, (ii) the
redemption price, including all accumulated and unpaid Distributions to the date
of redemption, with respect to any Securities called for redemption by the
Trust, to the extent that the Trust has sufficient funds available therefor at
the time, and (iii) upon a voluntary or involuntary dissolution, winding-up or
liquidation of the Trust (other than in connection with a consolidation,
amalgamation, merger, replacement or asset transfer pursuant to Section 3.15 of
the Trust Agreement, the distribution of Debentures to the Holders in exchange
for Securities as provided in the Trust Agreement or the redemption, repayment,
conversion or exchange of all of the Securities), the lesser of (a) the
aggregate of the liquidation amount and all accumulated and unpaid Distributions
on the Securities to the date of payment, to the extent the Trust has sufficient
funds available therefor and (b) the amount of assets of the Trust remaining
available for distribution to the Holders in liquidation of the Trust (in either
case, the "Liquidation Distribution").
"Guarantee Trustee" means JPMorgan Chase Bank until a Successor Guarantee
Trustee has been appointed and has accepted such appointment pursuant to the
terms of this Guarantee and thereafter means each such Successor Guarantee
Trustee.
2
"Holder" shall mean any holder of Securities, as registered on the books
and records of the Trust; provided, however, that, in determining whether the
holders of the requisite percentage of Preferred Securities have given any
request, notice, consent or waiver hereunder, "Holder" shall not include the
Guarantor or any Affiliate of the Guarantor or any other obligor on the
Preferred Securities.
"Indemnified Person" means the Guarantee Trustee, any Affiliate of the
Guarantee Trustee, or any officers, directors, shareholders, members, partners,
employees, representatives or agents of the Guarantee Trustee.
"Indenture" means the Indenture, dated as of ______________, between the
Guarantor and JPMorgan Chase Bank, as trustee, and any indenture supplemental
thereto pursuant to which the Debentures are to be issued to the Property
Trustee as defined in the Trust Agreement.
"List of Holders" has the meaning assigned to it in Section 2.2 hereof.
"Majority in Liquidation of Amount" means, except as provided in the terms
of the Preferred Securities or by the Trust Indenture Act, Holder(s) of
outstanding Securities, voting together as a single class, or, as the context
requires, Holders of outstanding Preferred Securities or Holders of outstanding
Common Securities, voting separately as a class, who are the record owners of
more than 50% of the aggregate Liquidation Amount (including the stated amount
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) of all outstanding Securities of the relevant class. In determining
whether the Holders of the requisite amount of Securities have voted, Securities
which are owned by the Guarantor or any Affiliate of the Guarantor or any other
obligor on the Securities shall be disregarded for the purpose of any such
determination.
"Officers' Certificate" means, with respect to any Person, a certificate
signed on behalf of such Person by two Authorized Officers (as defined in the
Trust Agreement). Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Guarantee shall include:
(a) a statement that each officer signing the certificate has read the
covenant or condition and the definition relating thereto;
(b) a brief statement of the nature and scope of the examination or
investigation undertaken by each officer on behalf of such Person in rendering
the certificate;
(c) a statement that each such officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable such officer
on behalf of such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such officer
acting on behalf of such Person, such condition or covenant has been complied
with.
3
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Preferred Securities" has the meaning set forth in the recitals of this
Guarantee.
"Redemption Price" shall have the meaning specified in the Trust
Agreement.
"Responsible Officer" means, with respect to the Guarantee Trustee, any
officer of the Guarantee Trustee with direct responsibility for the
administration of this Guarantee and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of that officer's knowledge of and familiarity with the particular
subject.
"Securities" has the meaning specified in the Recitals hereto.
"Successor Guarantee Trustee" means a successor Guarantee Trustee
possessing the qualifications to act as Guarantee Trustee under Section 4.1.
"Trust Agreement" means the Amended and Restated Trust Agreement, dated as
of the date hereof, as amended, modified or supplemented from time to time,
among the trustees of the Trust named therein, the Guarantor, as sponsor, and
the Holders, from time to time, of undivided beneficial ownership interests in
the assets of the Trust.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee is subject to the provisions of the Trust Indenture Act
that are required to be part of this Guarantee, and shall, to the extent
applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this Guarantee limits,
qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities.
(a) The Guarantor shall provide the Guarantee Trustee (i) except while the
Preferred Securities are represented by one or more Global Securities, at least
two Business Days prior to the date for payment of Distributions, a list, in
such form as the Guarantee Trustee may reasonably require, of the names and
addresses of the Holders of the Preferred Securities ("List of Holders") as of
the record date relating to the payment of such Distributions, and (ii) at any
other time, within 30 days of receipt by the Guarantor of a written request from
the Guarantee
4
Trustee for a List of Holders as of a date no more than 14 days before such List
of Holders is given to the Guarantee Trustee; provided that the Guarantor shall
not be obligated to provide such List of Holders at any time the List of Holders
does not differ from the most recent List of Holders given to the Guarantee
trustee by the Guarantor. The Guarantee Trustee shall preserve, in as current a
form as is reasonably practicable, all information contained in Lists of Holders
given to it, provided that the Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations under Sections
311(a), 311(b) and 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Within 60 days after ____________ of each year (commencing with the year
of the first anniversary of the issuance of the Securities), the Guarantee
Trustee shall provide to the Holders of the Securities such reports, if any, as
are required by Section 313 of the Trust Indenture Act in the form and in the
manner provided by Section 313 of the Trust Indenture Act. The Guarantee Trustee
shall also comply with the requirements of Section 313(d) of the Trust Indenture
Act.
SECTION 2.4 Periodic Reports to Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee such documents,
reports and information (if any) as required by Section 314(a) of the Trust
Indenture Act and the compliance certificate required by Section 314(a) of the
Trust Indenture Act in the form, in the manner and at the times required by
Section 314(a) of the Trust Indenture Act, but in no event later than 120 days
after the end of each calendar year.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such evidence of
compliance with any conditions precedent, if any, provided for in this Guarantee
that relate to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) may be given in the form of an Officers'
Certificate.
SECTION 2.6 Guarantee Events of Default; Waiver.
The Holders of a Majority in Liquidation Amount of Preferred Securities
may, by vote or written consent, on behalf of the Holders of all of the
Securities, waive any past Guarantee Event of Default and its consequences. Upon
such waiver, any such Guarantee Event of Default shall cease to exist, and any
Guarantee Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Guarantee, but no such waiver shall extend to any
subsequent or other default or Guarantee Event of Default or impair any right
consequent thereon.
5
SECTION 2.7 Guarantee Event of Default; Notice.
(a) The Guarantee Trustee shall, within 90 days after the occurrence of
a Guarantee Event of Default, transmit by mail, first class postage prepaid, to
the Holders of the Securities, notices of all Guarantee Events of Default known
to the Guarantee Trustee, unless such defaults have been cured before the giving
of such notice, provided, that, the Guarantee Trustee shall be protected in
withholding such notice if and so long as a Responsible Officers of the
Guarantee Trustee in good faith determines that the withholding of such notice
is in the interests of the Holders of the Securities.
(b) The Guarantee Trustee shall not be deemed to have knowledge of any
Guarantee Event of Default except any Guarantee Event of Default as to which the
Guarantee Trustee shall have received written notice or a Responsible Officer of
the Guarantee Trustee charged with the administration of this Guarantee shall
have obtained actual knowledge.
SECTION 2.8 Conflicting Interests.
The Trust Agreement shall be deemed to be specifically described in this
Guarantee for the purposes of clause (i) of the first proviso contained in
Section 310(b) of the Trust Indenture Act.
SECTION 2.9. Disclosure of Information.
The disclosure of information as to the names and addresses of the Holders
of the Securities in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, shall not be
deemed to be a violation of any existing law, or any law hereafter enacted which
does not specifically refer to Section 312 of the Trust Indenture Act, nor shall
the Guarantee Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
SECTION 2.10. Guarantee Trustee May File Proofs of Claim.
Upon the occurrence of a Guarantee Event of Default, the Guarantee Trustee
is hereby authorized to (a) recover judgment, in its own name and as trustee of
an express trust, against the Guarantor for the whole amount of any Guarantee
Payments remaining unpaid and (b) file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have its claims and those
of the Holders of the Securities allowed in any judicial proceedings relative to
the Guarantor, its creditors or its property.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee shall be held by the Guarantee Trustee for the benefit
of the Holders of the Securities, and the Guarantee Trustee shall not transfer
this Guarantee to any Person
6
except a Holder of Securities exercising his or her rights pursuant to Section
5.4(b) or to a Successor Guarantee Trustee on acceptance by such Successor
Guarantee Trustee of its appointment to act as Successor Guarantee Trustee. The
right, title and interest of the Guarantee Trustee in and to this Guarantee
shall automatically vest in any Successor Guarantee Trustee, and such vesting
and cessation of title shall be effective whether or not conveyancing documents
have been executed and delivered pursuant to the appointment of such Successor
Guarantee Trustee.
(b) If a Guarantee Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee for the benefit of the Holders of
the Securities.
(c) The Guarantee Trustee, before the occurrence of any Guarantee Event of
Default and after the curing of all Guarantee Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Guarantee, and no implied covenants shall be read into this
Guarantee against the Guarantee Trustee. In case a Guarantee Event of Default
has occurred (that has not been cured or waived pursuant to Section 2.6), the
Guarantee Trustee shall exercise such of the rights and powers vested in it by
this Guarantee, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(d) No provision of this Guarantee shall be construed to relieve the
Guarantee Trustee from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of any Guarantee Event of Default and
after the curing or waiving of all such Guarantee Events of Default that
may have occurred:
(A) the duties and obligations of the Guarantee Trustee shall
be determined solely by the express provisions of this Guarantee,
and the Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set
forth in this Guarantee, and no implied covenants or obligations
shall be read into this Guarantee against the Guarantee Trustee; and
(B) in the absence of bad faith on the part of the Guarantee
Trustee, the Guarantee Trustee may conclusively rely, as to the
truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to
the Guarantee Trustee and conforming to the requirements of this
Guarantee; but in the case of any such certificates or opinions that
by any provision hereof are specifically required to be furnished to
the Guarantee Trustee, the Guarantee Trustee shall be under a duty
to examine the same to determine whether or not they conform to the
requirements of this Guarantee;
(ii) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment was
made;
7
(iii) the Guarantee Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of not less than a Majority in Liquidation
Amount of the Securities at the time outstanding, relating to the time,
method and place of conducting any proceeding for any remedy available to
the Guarantee Trustee, or exercising any trust or power conferred upon the
Guarantee Trustee under this Guarantee; and
(iv) no provision of this Guarantee shall require the Guarantee
Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if the Guarantee Trustee shall
have reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee or if the Guarantee Trustee shall have reasonable grounds for
believing that an indemnity, reasonably satisfactory to the Guarantee
Trustee, against such risk or liability is not reasonably assured to it
under the terms of this Guarantee.
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively rely, and shall be
fully protected in acting or refraining from acting, upon any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed
by it to be genuine and to have been signed, sent or presented by
the proper party or parties;
(ii) any direction or act of the Guarantor contemplated by
this Guarantee shall be sufficiently evidenced by an Officers'
Certificate;
(iii) whenever, in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable that a matter be proved or
established before taking, suffering or omitting any action
hereunder, the Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith on its
part, request and rely upon an Officers' Certificate which, upon
receipt of such request, shall be promptly delivered by the
Guarantor;
(iv) the Guarantee Trustee shall have no duty to see to any
recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof);
(v) the Guarantee Trustee may consult with counsel, and the
advice or opinion of such counsel with respect to legal matters
shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with such advice or opinion. Such counsel
may be counsel to the Guarantor or any of its Affiliates and may
include any of the Guarantor's employees. The Guarantee Trustee
shall have the right at
8
any time to seek instructions concerning the administration of this
Guarantee Agreement from any court of competent jurisdiction.
(vi) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
at the request or direction of any Holder, unless such Holder shall
have provided to the Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Guarantee Trustee, against the costs,
expenses (including attorneys' fees and expenses and the expenses of
the Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with such
request or direction, including such reasonable advances as may be
requested by the Guarantee Trustee; provided that nothing contained
in this Section 3.2(a)(vi) shall be taken to relieve the Guarantee
Trustee, upon the occurrence of a Guarantee Event of Default, of its
obligation to exercise the rights and powers vested in it by this
Guarantee;
(vii) the Guarantee Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the
Guarantee Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(viii) the Guarantee Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
by or through agents, nominees, custodians or attorneys, and the
Guarantee Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(ix) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders of the Securities, and the
signature of the Guarantee Trustee or its agents alone shall be
sufficient and effective to perform any such action. No third party
shall be required to inquire as to the authority of the Guarantee
Trustee to so act or as to its compliance with any of the terms and
provisions of this Guarantee, both of which shall be conclusively
evidenced by the Guarantee Trustee's or its agent's taking such
action; and
(x) whenever in the administration of this Guarantee, the
Guarantee Trustee shall deem it desirable to receive instructions
with respect to enforcing any remedy or right or taking any other
action hereunder, the Guarantee Trustee (i) may request instructions
from the Holders of the Securities, (ii) may refrain from enforcing
such remedy or right or taking such other action until such
instructions are received, and (iii) shall be protected in acting in
accordance with such instructions.
(b) No provision of this Guarantee shall be deemed to impose any duty or
obligation on the Guarantee Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the
9
Guarantee Trustee shall be unqualified or incompetent in accordance with
applicable law, to perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority available to the
Guarantee Trustee shall be construed to be a duty.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under the laws of
the United States of America or any State or Territory thereof or of the
District of Columbia, or a corporation or Person permitted by the
Securities and Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws to exercise
corporate trust powers, having a combined Preferred and surplus of at
least 50 million U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then, for the purposes of this
Section 4.1(a)(ii), the combined Preferred and surplus of such corporation
shall be deemed to be its combined Preferred and surplus as set forth in
its most recent report of condition so published.
(b) If at any time the Guarantee Trustee shall cease to be eligible to so
act under Section 4.1(a), the Guarantee Trustee shall immediately resign in the
manner and with the effect set out in Section 4.2(c).
(c) If the Guarantee Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust Indenture Act, the
Guarantee Trustee and Guarantor shall in all respects comply with the provisions
of Section 310(b) of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of Guarantee Trustee.
(a) Subject to Section 4.2(b), unless a Guarantee Event of Default shall
have occurred and be continuing, the Guarantee Trustee may be appointed or
removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance with Section
4.2(a) until a Successor Guarantee Trustee has been appointed and has accepted
such appointment by written instrument executed by such Successor Guarantee
Trustee and delivered to the Guarantor.
(c) The Guarantee Trustee appointed to office shall hold office until a
Successor Guarantee Trustee shall have been appointed or until its removal or
resignation. The Guarantee Trustee may resign from office (without need for
prior or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which
10
resignation shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by instrument in writing executed by
such Successor Guarantee Trustee and delivered to the Guarantor and the re
signing Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been appointed and
accepted appointment as provided in this Section 4.2 within 60 days after
delivery to the Guarantor of an instrument of resignation, the resigning
Guarantee Trustee may petition any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may thereupon, after
prescribing such notice, if any, as it may deem proper, appoint a Successor
Guarantee Trustee.
(e) No Guarantee Trustee shall be liable for the acts or omissions to act
of any Successor Guarantee Trustee.
(f) Upon termination of this Guarantee or removal or resignation of the
Guarantee Trustee pursuant to this Section 4.2, the Guarantor shall pay to the
Guarantee Trustee all amounts owing for fees and reimbursement of expenses which
have accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in full to the
Holders the Guarantee Payments (without duplication of amounts theretofore paid
by the Trust), as and when due, regardless of any defense, right of set-off or
counterclaim that the Trust may have or assert. The Guarantor's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Guarantor to the Holders or by causing the Trust to pay such
amounts to the Holders. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to extend the interest
payment period on the Debentures pursuant to the terms thereof and the Guarantor
shall not be obligated hereunder to make any Guarantee Payments during any
Extension Period (as defined in the Debentures) with respect to the
Distributions (as defined in the Trust Agreement) on the Securities.
[The Guarantor also irrevocably and unconditionally agrees to cause the
Trust to deliver to the Holders of such Securities those other securities in
accordance with the provisions of Section 7.13 of the Trust Agreement.]
SECTION 5.3 Waiver of Notice and Demand.
The Guarantor hereby waives notice of acceptance of this Guarantee and of
any liability to which it applies or may apply, presentment, demand for payment,
any right to require a proceeding first against the Trust or any other Person
before proceeding against the Guarantor, protest, notice of nonpayment, notice
of dishonor, notice of redemption and all other notices and demands.
11
SECTION 5.4 Obligations Not Affected.
The obligations, covenants, agreements and duties of the Guarantor under
this Guarantee shall be absolute and unconditional and shall remain in full
force and effect until the entire liquidation amount of all outstanding
Securities shall have been paid and such obligation shall in no way be affected
or impaired by reason of the happening from time to time of any event, including
without limitation, the following, whether or not with notice to, or the consent
of, the Guarantor:
(a) the release or waiver, by operation of law or otherwise, of the
performance or observance by the Trust of any express or implied agreement,
covenant, term or condition relating to the Securities to be performed or
observed by the Trust;
(b) the extension of time for the payment by the Trust of all or any
portion of the Distributions, Redemption Price, Liquidation Distribution or any
other sums payable under the terms of the Securities or the extension of time
for the performance of any other obligation under, arising out of, or in
connection with, the Securities (other than an extension of time for payment of
Distributions, the Redemption Price, Liquidation Distribution or other sum
payable that results from the extension of any interest payment period on the
Debentures or any extension of the maturity date of the Debentures permitted by
the Indenture);
(c) any failure, omission, delay or lack of diligence on the part of the
Property Trustee or the Holders to enforce, assert or exercise any right,
privilege, power or remedy conferred on the Property Trustee or Holders pursuant
to the terms of the Securities, or any action on the part of the Trust granting
indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution, sale of any
collateral, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of debt of,
or other similar proceedings affecting, the Trust or any of the assets of the
Trust;
(e) any invalidity of, or defect or deficiency in the Securities;
(f) the settlement or compromise of any obligation guaranteed hereby or
hereby incurred; or
(g) any other circumstance whatsoever that might otherwise constitute a
legal or equitable discharge or defense of a guarantor, it being the intent of
this Section 5.4 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the Holders or
any other Person to give notice to, or obtain consent of, the Guarantor with
respect to the happening of any of the foregoing.
No setoff, counterclaim, reduction or diminution of any obligation, or any
defense of any kind or nature that the Guarantor has or may have against any
Holder shall be available hereunder to the Guarantor against such Holder to
reduce the payments to it under this Guarantee.
12
SECTION 5.5 Rights of Holders.
(a) The Holders of a Majority in Liquidation Amount of the Securities have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Guarantee Trustee in respect of this Guarantee or to
direct the exercise of any trust or power conferred upon the Guarantee Trustee
under this Guarantee.
(b) If the Guarantee Trustee fails to enforce this Guarantee, then any
Holder of Preferred Securities may, subject to the subordination provisions of
Section 6.2, institute a legal proceeding directly against the Guarantor to
enforce its rights under this Guarantee, without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other Person. In
addition, if the Guarantor has failed to make a Guarantee Payment, a Holder of
Securities may, subject to the subordination provisions of Section 6.2, directly
institute a proceeding against the Guarantor for enforcement of the Guarantee
for such payment to the Holder of the Securities of the principal of or interest
on the Debentures on or after the respective due dates specified in the
Debentures, and the amount of the payment will be based on the Holder's pro rata
share of the amount due and owing on all of the Securities. The Guarantor hereby
waives any right or remedy to require that any action on this Guarantee be
brought first against the Trust or any other person or entity before proceeding
directly against the Guarantor.
SECTION 5.6 Guarantee of Payment.
This Guarantee creates a guarantee of payment and not of collection.
SECTION 5.7 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders of
Securities against the Trust in respect of any amounts paid to such Holders by
the Guarantor under this Guarantee; provided, however, that the Guarantor shall
not (except to the extent required by mandatory provisions of law) be entitled
to enforce or exercise any right that it may acquire by way of subrogation or
any indemnity, reimbursement or other agreement, in all cases as a result of
payment under this Guarantee, if, at the time of any such payment, any amounts
are due and unpaid under this Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay over such amount to the
Guarantee Trustee for the benefit of the Holders.
SECTION 5.8 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are independent
of the obligations of the Trust with respect to the Preferred Securities, and
that the Guarantor shall be liable as principal and as debtor hereunder to make
Guarantee Payments pursuant to the terms of this Preferred Securities Guarantee
notwithstanding the occurrence of any event referred to in subsections (a)
through (g), inclusive, of Section 5.4 hereof.
13
ARTICLE VI
LIMITATION OF TRANSACTIONS; RANKING; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Securities remain out standing, if (i) there shall have
occurred an event of de fault under the Indenture with respect to the
Debentures, or (ii) there shall have occurred a Guarantee Event of Default or
(iii) the Guarantor shall have given notice of its election of an Extension
Period as provided in the Debentures and shall not have rescinded such notice,
or such Extension Period or any extension thereof shall be continuing, then the
Guarantory shall not (x) declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or acquire or make a liquidation payment
with respect to, any of its Guarantor's capital stock, (y) make any payment of
principal, interest or premium, if any, on or repay, repurchase or redeem any
debt securities issued by the Guarantor which rank pari passu with or junior to
the Debentures, or (z) make any guarantee payments with respect to any guarantee
by the Guarantor of the debt securities of any subsidiary of the Guarantor if
such guarantee ranks pari passu with or junior in interest to the Debentures
(other than (a) dividends or distributions in Common Shares of the Guarantor,
(b) any declaration of a dividend in connection with the implementation of a
rights plan or the issuance of stock under any such plan or the redemption or
repurchase of any such rights pursuant thereto, (c) payments under this
Guarantee and (d) purchases of Common Shares related to the issuance of Common
Shares or rights under any of the Guarantor's benefit plans for its directors,
officers or employees).
SECTION 6.2 Ranking.
This Guarantee will constitute an unsecured obligation of the Guarantor
and will rank pari passu with the Debentures issued under the Indenture.
SECTION 6.3 Subordination of Common Securities
If an Event of Default under the Trust Agreement has occurred and is
continuing, the rights of Holders of the Common Securities to receive Guarantee
Payments hereunder are subordinated to the rights of Holders of Preferred
Securities to receive Guarantee Payments under this Guarantee.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee shall terminate upon (i) full payment of the Redemption
Price of all Securities, (ii) conversion or exchange, if applicable, of all
Securities, (iii) distribution of the Debentures to the Holders of all of the
Securities or (iv) full payment of the amounts payable in accordance with the
Trust Agreement upon liquidation of the Trust. Notwithstanding the foregoing,
this Guarantee will continue to be effective or will be reinstated, as the case
may be, if
14
at any time any Holder of Securities must restore payment of any sums paid under
the Securities or under this Guarantee.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Indemnification.
(a) To the fullest extent permitted by applicable law, the Guarantor shall
indemnify and hold harmless each Indemnified Person from and against any loss,
damage or claim incurred by such Indemnified Person by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person in accordance with this Guarantee, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, damage or
claim incurred by such Indemnified Person by reason of negligence or willful
misconduct with respect to such acts or omissions.
(b) To the fullest extent permitted by applicable law, expenses (including
legal fees and expenses) incurred by an Indemnified Person in defending any
claim, demand, action, suit or proceeding shall, from time to time, be advanced
by the Guarantor prior to the final disposition of such claim, demand, action,
suit or proceeding upon receipt by the Guarantor of an undertaking by or on
behalf of the Indemnified Person to repay such amount if it shall be determined
that the Indemnified Person is not entitled to be indemnified as authorized in
Section 8.1(a).
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Securities then
outstanding. Except in connection with any permitted merger or consolidation of
the Guarantor with or into another entity or any permitted sale, transfer or
lease of the Guarantor's assets to another entity, the Guarantor may not assign
its rights or delegate its obligations under this Guarantee.
SECTION 9.2 Amendments.
Except with respect to any changes that do not materially adversely affect
the rights of Holders (in which case no consent of the Holders will be
required), this Guarantee may not be amended without the prior approval of the
Holders of at a Majority in Liquidation Amount of the Securities. The provisions
of Section 11.2 of the Trust Agreement with respect to meetings of, and action
by written consent of, Holders of the Securities apply to the giving of such
approval.
15
SECTION 9.3 Notices.
All notices provided for in this Guarantee shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) If given to the Guarantee Trustee, at the Guarantee Trustee's mailing
address set forth below (or such other address as the Guarantee Trustee may give
notice of to the Holders of the Securities):
(b) If given to the Guarantor, at the Guarantor's mailing address set
forth below (or such other address as the Guarantor may give notice of to the
Holders of the Securities):
Weyerhaeuser Company
00000 Xxxxxxxxxxxx Xxx Xxxxx
Xxxxxxx Xxx, Xxxxxxxxxx 00000
(c) If given to any Holder of Securities, at the address set forth on
the books and records of the Trust.
All such notices shall be deemed to have been given when received in
person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 9.4 Benefit.
This Guarantee is solely for the benefit of the Holders of the Securities
and, subject to Section 3.1(a), is not separately transferable from the
Securities.
SECTION 9.5 Governing Law.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICT OF LAWS.
THIS GUARANTEE is executed as of the day and year first above written.
WEYERHAEUSER COMPANY,
as Guarantor
By___________________
Name:
Title:
[JPMORGAN CHASE BANK] , as
Guarantee Trustee
16
By:___________________
Name:
Title:
17
