AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 29, 2002
REGISTRATION STATEMENT NO. 333-82376
AMENDMENT NO. 1
TO
WASHINGTON 2400 91-0470860
(State or other jurisdiction of (Primary standard industrial (I.R.S. employer
incorporation or organization) classification code number) identification number)
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33663 WEYERHAEUSER WAY SOUTH
FEDERAL WAY, WASHINGTON 98003
TELEPHONE: (253) 924-2345
(Address, including zip code, and telephone number, including area code of
registrant's principal executive offices)
CLAIRE S. GRACE
CORPORATE SECRETARY AND ASSISTANT GENERAL COUNSEL
WEYERHAEUSER COMPANY
33663 WEYERHAEUSER WAY SOUTH
FEDERAL WAY, WASHINGTON 98003
TELEPHONE: (253) 924-2345
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ]
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
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5.95% Notes due 2008...... $750,000,000 100% $750,000,000 $69,000*
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(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act of 1933.
* Paid previously.
PROSPECTUS
WEYERHAEUSER COMPANY
OFFER TO EXCHANGE ITS
5.95% NOTES DUE 2008
THAT HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 FOR ANY AND ALL
OF ITS OUTSTANDING 5.95% NOTES DUE 2008
- We are offering to exchange up to $750,000,000 aggregate principal amount of our 5.95% Notes due 2008 that have been registered under the Securities Act of 1933 for a like aggregate principal amount of our 5.95% Notes due 2008 that we previously issued without registration under the Securities Act.
- The terms of the exchange notes will be identical in all material respects to the terms of the old notes, except that the transfer restrictions, registration rights and additional interest provisions applicable to the old notes will not apply to the exchange notes.
- We will issue exchange notes in exchange for all old notes that are validly tendered and not withdrawn.
- The exchange offer will expire at 5:00 p.m., New York City time, on May 2, 2002 unless we extend it.
- You may withdraw tenders of old notes at any time before 5:00 p.m., New York City time, on the date of the expiration of the exchange offer.
- We will not receive any cash proceeds from the exchange offer.
- No dealer-manager is being used in connection with the exchange offer.
- The exchange of the exchange notes for old notes will not be a taxable transaction for U.S. federal income tax purposes.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED
NOT TO SEND US A PROXY.
We are not making this exchange offer in any state where it is not permitted.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS MARCH 29, 2002.
TABLE OF CONTENTS
PAGE
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Special Note Regarding Forward-Looking Statements........... 2
Prospectus Summary.......................................... 4
Recent Developments......................................... 9
Use of Proceeds............................................. 12
Ratios of Earnings to Fixed Charges......................... 12
The Exchange Offer.......................................... 13
Description of the Exchange Notes........................... 23
Certain United States Federal Income Tax Considerations..... 39
Plan of Distribution........................................ 42
Available Information....................................... 42
Incorporation by Reference.................................. 43
Legal Matters............................................... 43
Experts..................................................... 44
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We have not authorized any person to give any information or to make any representation in connection with this offer other than the information contained and incorporated or deemed to be incorporated by reference in this prospectus, and, if given or made, that information or representation must not be relied upon as having been authorized by us. This prospectus does not constitute an offer or solicitation of an offer by anyone in any jurisdiction in which that offer or solicitation is not authorized, or in which the person is not qualified to do so or to any person to whom it is unlawful to make an offer or solicitation. Neither the delivery of this prospectus nor any exchange or sale under this prospectus will, under any circumstances, create an implication that there has been no change in our affairs since the date of this prospectus, that the information contained in this prospectus is correct as of any time subsequent to its date, or that any information incorporated or deemed to be incorporated by reference in this prospectus is correct as of any time subsequent to its date.
This prospectus incorporates important business and financial information
about us that is not included in or delivered with this prospectus. This
information is available without charge to you upon written or oral request. To
receive a copy of any of the documents incorporated by reference in this
prospectus, other than exhibits unless they are specifically incorporated by
reference in those documents, call or write to our Director of Investor
Relations at Weyerhaeuser Company, P.O. Box 9777, Federal Way, Washington
98063-9777, telephone (253) 924-2058. IN ADDITION, TO OBTAIN TIMELY DELIVERY OF
ANY INFORMATION YOU REQUEST, YOU MUST SUBMIT YOUR REQUEST NO LATER THAN APRIL
25, 2002, WHICH IS FIVE BUSINESS DAYS BEFORE THE EXCHANGE OFFER IS CURRENTLY
SCHEDULED TO EXPIRE.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated or deemed to be incorporated by reference in this prospectus contain statements concerning our future results and performance and other matters that are "forward-looking" statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. These forward-looking statements are subject to a number of risks and uncertainties and should not be relied upon as predictions of future events. Some of these forward-looking statements can be identified by the use of forward-looking terminology such as "believes," "expects," "may," "will," "should," "seeks," "approximately," "intends," "plans," "pro forma," "estimates" or "anticipates" or the negative or other variations of those terms or comparable terminology, or by discussions of strategy, plans or intentions. In particular, some of these forward-looking statements deal with matters such as anticipated synergies, cost savings, cash flow, earnings, earnings per share and shareholder value that may
be realized as a result of our acquisition of Willamette Industries, Inc. and with the anticipated effect of that acquisition on our results of operations, financial condition and prospects. The accuracy of these forward-looking statements is subject to a number of risks, uncertainties and assumptions that may cause actual results to differ materially from those projected, including, but not limited to:
- the effect of general economic conditions;
- market demand for our products, which may be tied to the relative strength of various U.S. business segments;
- performance of our manufacturing operations;
- the level of competition from foreign producers;
- the effect of forestry, land use, environmental and other governmental regulations;
- the risk of losses from terrorist activity, fires, floods and other natural disasters; and
- our ability to successfully integrate and manage Willamette and any other businesses or companies we acquire and to realize anticipated cost savings and synergies, if any, from those acquisitions, and the ability of Willamette and any other businesses or companies we acquire to perform in accordance with our expectations.
We are also a large exporter and operate in a number of countries and we are affected by changes in economic activity in Canada, Europe and Asia, particularly Japan, and by changes in currency exchange rates, particularly the relative value of the U.S. dollar and the Euro, plus restrictions on international trade or tariffs imposed on imports. These and other factors that could cause or contribute to actual results differing materially from these forward-looking statements are discussed in greater detail elsewhere in this prospectus and in the documents incorporated and deemed to be incorporated by reference in this prospectus.
PROSPECTUS SUMMARY
This summary does not contain all of the information that may be important to you. You should carefully read the detailed information appearing elsewhere in this prospectus, the related letter of transmittal and the documents incorporated and deemed to be incorporated by reference in this prospectus.
In this prospectus, we sometimes refer to our 5.95% Notes due 2008 that we previously issued as the "old notes," the 5.95% Notes due 2008 that we are offering in exchange for the old notes as the "exchange notes" and the old notes and the exchange notes as, collectively, the "notes." We also sometimes refer to the exchange offer made by this prospectus and the related letter of transmittal as the "exchange offer" and to that letter of transmittal as the "letter of transmittal."
Unless otherwise expressly stated or the context otherwise requires, references to "Weyerhaeuser," "we," "our" and "us" and similar references mean Weyerhaeuser Company and its consolidated subsidiaries which include, with respect to information relating to dates or periods on and after February 11, 2002, Willamette Industries, Inc. and its consolidated subsidiaries.
WEYERHAEUSER COMPANY
Weyerhaeuser Company was incorporated in the State of Washington in January 1900 as Weyerhaeuser Timber Company. We are principally engaged in the growing and harvesting of timber and the manufacture, distribution and sale of forest products, real estate development and construction, and other real estate related activities. Our principal business segments, which account for the majority of our sales, earnings and asset base, are timberlands, wood products, and pulp, paper and packaging. The mailing address of our principal executive offices is 33663 Weyerhaeuser Way South, Federal Way, Washington 98003 and the telephone number of our principal executive offices is (253) 924-2345.
THE EXCHANGE OFFER
General....................... We are offering to exchange up to $750,000,000
aggregate principal amount of exchange notes
for a like aggregate principal amount of old
notes. Old notes may be tendered for exchange
in whole or in part in a principal amount of
$1,000 and integral multiples of $1,000. The
terms of the exchange notes will be identical
in all material respects to the terms of the
old notes, except that the transfer
restrictions, registration rights and
additional interest provisions applicable to
the old notes will not apply to the exchange
notes. We are making the exchange offer in
order to satisfy our obligations under a
registration rights agreement, which we refer
to as the "registration rights agreement," that
we entered into in connection with the initial
issuance of the old notes.
If the exchange offer is not completed by the
date specified in the registration rights
agreement, we will be required to pay
additional interest on the old notes until the
exchange offer is completed unless we file a
shelf registration statement for the old notes
with the Securities and Exchange Commission and
comply with other conditions.
Expiration Date............... 5:00 p.m., New York City time, on May 2, 2002,
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which we refer to as the "Expiration Date," unless we extend the term of the exchange offer, in which case the term "Expiration Date" will mean the latest date and time to which the exchange offer is extended. See "The Exchange Offer -- Expiration Date; Extensions; Amendments."
Procedure for Tendering Old
Notes......................... To tender old notes, holders must complete,
sign and date the letter of transmittal and
deliver it, together with certificates for the
old notes to be exchanged and any other
required documents, to the exchange agent
referred to below or comply with the procedures
for book-entry transfer, in each case on or
prior to the Expiration Date and in accordance
with the detailed procedures specified in this
prospectus and the letter of transmittal.
Holders of old notes who are unable to deliver
these documents or comply with the procedures
for book-entry transfer on or prior to the
Expiration Date may follow the guaranteed
delivery procedures described in this
prospectus. See "The Exchange
Offer -- Procedures for Tendering Old Notes."
Holders of old notes registered in the name of
a broker, dealer, commercial bank, trust
company or other nominee are urged to contact
that person promptly if they wish to tender old
notes. Letters of transmittal and other
required documents should not be sent to us.
Those documents should only be sent to the
exchange agent. Questions regarding how to
tender and requests for information should be
directed to the exchange agent. See "The
Exchange Offer -- Exchange Agent."
Withdrawal Rights............. Tenders of old notes may be withdrawn at any
time on or prior to the Expiration Date by
delivering a written notice of withdrawal to
the exchange agent in conformity with the
procedures described under "The Exchange
Offer -- Withdrawal Rights."
Conditions to the Exchange
Offer......................... We will not be required to accept for exchange,
or to exchange, any old notes if specified
events or conditions have occurred or exist or
have not been satisfied. If we determine that
any of these events or conditions has occurred
or exists or has not been satisfied, we may,
subject to applicable law, terminate the
exchange offer, waive that condition or
otherwise amend the terms of the exchange offer
in any respect. See "The Exchange
Offer -- Certain Conditions to the Exchange
Offer."
Resales of Exchange Notes..... Based on existing interpretations by the staff
of the SEC contained in interpretive letters
issued to parties unrelated to us, we believe
that, except as described in the next sentence,
you will generally be able to transfer the
exchange notes issued pursuant to the exchange
offer without compliance with the registration
or prospectus delivery requirements of the
Securities Act, so long as you are not an
affiliate of ours, you acquire the exchange
notes in the ordinary course of your business,
you have no arrangement or understanding with
any person to participate in the distribution
of the old notes or the exchange notes within
the meaning of the Securities Act and you are
not a broker-dealer that purchased the old
notes being tendered in the exchange offer
directly from us for resale pursuant to Rule
144A or any other available exemption from
registration under the Securities Act. However,
if you are a broker-dealer and receive exchange
notes in exchange for old notes that were
acquired for your own account as a result of
market-making activities or other trading
activities, you must deliver a prospectus
meeting the requirements of the Securities Act
in connection with any resale of the exchange
notes. Each holder of old notes who wishes to
receive exchange notes will be required to make
specified
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representations and warranties to us in order
to insure compliance with the interpretive
letters referred to above. See "The Exchange
Offer -- Resales of Exchange Notes."
Exchange Agent................ The exchange agent for the exchange offer is
JPMorgan Chase Bank. The address and telephone
and facsimile numbers of the exchange agent
appear under "The Exchange Offer -- Exchange
Agent."
Use of Proceeds............... We will not receive any cash proceeds from the
issuance of the exchange notes offered by this
prospectus.
Consequences of Failure to
Exchange
the Old Notes............... Any old notes that are not tendered and
exchanged for exchange notes will remain
outstanding following the exchange offer and
will continue to be subject to transfer
restrictions and to bear interest at the rate
of 5.95% per annum, but will not be entitled to
any additional interest or registration rights
under the registration rights agreement. If old
notes are tendered and accepted in the exchange
offer, a holders' ability to sell any old notes
that remain outstanding could be adversely
affected and there may be no trading market for
the old notes. See "-- Consequences of Failure
to Exchange the Old Notes" below.
United States Federal Income
Tax
Considerations.............. The exchange of the exchange notes for old
notes will not be a taxable transaction for
U.S. federal income tax purposes. Holders of
old notes should review the information
appearing under "Certain United States Federal
Income Tax Considerations" prior to tendering
old notes in the exchange offer.
THE EXCHANGE NOTES
Issuer........................ Weyerhaeuser Company, a Washington corporation.
Ranking....................... The exchange notes will be unsecured and
unsubordinated obligations of Weyerhaeuser
Company and will rank equally with all other
unsecured and unsubordinated indebtedness of
Weyerhaeuser Company. The exchange notes will
be effectively subordinated to all existing and
future liabilities, including indebtedness,
trade payables, guarantees, lease obligations
and letter of credit obligations, of our
subsidiaries. See "Description of the Exchange
Notes--Ranking."
Exchange Notes Offered........ $750,000,000 in principal amount of 5.95% Notes
due 2008.
Maturity Date................. November 1, 2008.
Interest...................... Interest rate: 5.95% per annum, accruing from
May 1, 2002.
Payment frequency: semiannually on May 1 and
November 1.
First payment: The first interest payment date
for the exchange notes will be November 1, 2002
and the interest payable on the exchange notes
on that date will be paid to the persons in
whose names the exchange notes are registered
at the close of business on October 15, 2002.
Because the exchange notes will not be issued
until after May 1, 2002, holders of the
exchange notes will not be entitled to receive
the interest payable on the interest payment
date falling on May 1, 2002. Instead, interest
payable on the interest
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payment date falling on May 1, 2002 will be payable on the old notes and will be paid to the persons in whose names the old notes are registered at the close of business on April 15, 2002.
Optional Redemption........... We may redeem some or all of the exchange
notes, at any time or from time to time, at the
redemption prices described in the section
entitled "Description of the Exchange
Notes -- Optional Redemption." The exchange
notes will not be subject to any sinking fund
provision.
Covenants..................... We will issue the exchange notes under an
indenture with JPMorgan Chase Bank, as trustee.
The indenture will, among other things,
restrict our ability and the ability of our
"subsidiaries," as that term is defined in the
indenture, to:
- incur indebtedness for borrowed money
secured by mortgages on timber or
timberlands located in specified states or
on any principal manufacturing plant
located in the United States unless we
secure the notes and any other debt
securities issued under the indenture
equally and ratably with, or prior to, that
indebtedness; and
- enter into specified sale and leaseback
transactions with respect to real property
located in the United States unless we
apply an amount equal to the fair value of
the leased property, as determined by our
board of directors, to repay indebtedness
or unless we would be entitled, pursuant to
the limitation on liens covenant described
in the preceding bullet point, to incur
indebtedness for borrowed money secured by
a mortgage on the leased property without
equally and ratably securing the debt
securities issued under the indenture.
These covenants are subject to a number of
exceptions and limitations and you should
carefully review the information under
"Description of the Exchange Notes -- Certain
Restrictions" for more information.
The indenture also provides that we may not
cause or permit Willamette Industries, Inc. to
guarantee any of our borrowings under specified
credit facilities unless Willamette also
guarantees the payment of the notes and other
debt securities issued under the indenture.
However, Willamette's guarantee of the notes
and other debt securities issued under the
indenture will terminate upon the earlier of
(1) the termination of its guarantee of
borrowings under those credit facilities and
(2) the effectiveness of the anticipated merger
of Willamette with and into Weyerhaeuser
Company. Moreover, the covenant in the
indenture requiring that, under the
circumstances described above, Willamette
guarantee the notes and other debt securities
issued under the indenture will terminate upon
the effectiveness of the anticipated merger of
Willamette with and into Weyerhaeuser Company.
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See "Recent Developments -- Acquisition of Willamette Industries, Inc." and "Description of the Exchange Notes -- Possible Guarantee of Debt Securities."
Form of Exchange Notes........ The exchange notes will be issued in book-entry
form and will be evidenced by one or more
global certificates, which we sometimes
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refer to as "global exchange notes," registered in the name of Cede & Co., as nominee of The Depository Trust Company, or "DTC." Holders of interests in global exchange notes will not be entitled to receive exchange notes in definitive certificated form registered in their names except in the limited circumstances described under "Description of the Exchange Notes -- Book-Entry; Delivery and Form."
Denominations................. The exchange notes will be issued in
denominations of $1,000 and integral multiples
of $1,000.
Absence of a Public Market for
the
Exchange Notes.............. The exchange notes will be a new issue of
securities for which there is no established
market. Accordingly, there can be no assurance
that a market for the exchange notes will
develop or as to the liquidity of any market
that may develop. The broker-dealers that
initially purchased the old notes directly from
us have previously advised us that they intend
to make a market in the exchange notes.
However, they are not obligated to do so and
any market making with respect to the exchange
notes may be discontinued without notice.
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CONSEQUENCES OF FAILURE TO EXCHANGE THE OLD NOTES
The old notes have not been registered under the Securities Act or any state securities laws and therefore may not be offered, sold or otherwise transferred except in compliance with the registration requirements of the Securities Act and any other applicable securities laws or pursuant to an exemption from or in a transaction not subject to those requirements. The transfer of old notes is also subject to other conditions and restrictions set forth in the related indenture. Any old notes that are not tendered and exchanged for exchange notes will remain outstanding after consummation of the exchange offer and will continue to bear a legend reflecting those restrictions on transfer. In addition, upon consummation of the exchange offer, holders of old notes that remain outstanding will not be entitled to any rights under the registration rights agreement to have those old notes registered under the Securities Act. We do not intend to register under the Securities Act any old notes which remain outstanding after completion of the exchange offer.
If old notes are tendered and accepted in the exchange offer, a holder's ability to sell any old notes that remain outstanding could be adversely affected and there may be no trading market for those old notes. To the extent that old notes are tendered and accepted in the exchange offer, the principal amount of outstanding old notes will decrease, which will likely adversely affect the liquidity of any trading market for the old notes that may exist.
In the registration rights agreement we agreed, among other things, to use our reasonable best efforts to consummate an exchange offer of exchange notes for old notes. The registration rights agreement provides, among other things, that if we do not consummate the exchange offer by a specified date, additional interest will accrue and be payable on the old notes until the exchange offer is completed unless we file a shelf registration for the old notes with the SEC and comply with other conditions. Following completion of the exchange offer, the old notes will not be entitled to any additional interest under the registration rights agreement and will continue to bear interest at the same rate as the exchange notes.
The old notes and the exchange notes will be issued under the same indenture and will constitute a single series of debt securities under that indenture. If the exchange offer is consummated, any old notes that remain outstanding and the exchange notes will constitute a single series of debt securities under the indenture. This means that, in circumstances where the indenture provides for holders of debt securities of any series issued under the indenture to vote or take any other action as a class, the old notes and the exchange notes will vote or take that action as a single class.
RECENT DEVELOPMENTS
SALE OF $5.5 BILLION OF DEBT SECURITIES
On March 12, 2002, we issued the following debt securities:
- $500 million aggregate principal amount of our floating rate notes due 2003,
- $1 billion aggregate principal amount of our 5.50% notes due 2005,
- $1 billion aggregate principal amount of our 6.125% notes due 2007,
- $1.75 billion of our 6.75% notes due 2012, and
- $1.25 billion of our 7.375% debentures due 2032.
We received net proceeds of approximately $5.4 billion from the sale of these debt securities and we used those net proceeds to repay a portion of the borrowings we incurred to acquire Willamette Industries, Inc. as described below.
The floating rate notes due 2003 mature on September 15, 2003, the 5.50% notes due 2005 mature on March 15, 2005, the 6.125% notes due 2007 mature on March 15, 2007, the 6.75% notes due 2012 mature on March 15, 2012 and the 7.375% debentures due 2032 mature on March 15, 2032. The floating rate notes due 2003 bear interest at a per annum rate equal to LIBOR, as defined and adjusted quarterly, plus 1.125%. Interest on the floating rate notes due 2003 is payable quarterly and the floating rate notes due 2003 are not subject to redemption prior to maturity. Interest on the other debt securities referred to above is payable semi-annually and we may redeem some or all of those other debt securities, in whole at any time or from time to time in part, at our option, at specified redemption prices. All of these debt securities, including the floating rate notes due 2003, were issued under the same indenture as the notes and, accordingly, are entitled to the benefit of the same events of default and covenants as the notes, including the covenants described under "Description of the Exchange Securities -- Possible Guarantee of Debt Securities."
ACQUISITION OF WILLAMETTE INDUSTRIES, INC.
On November 29, 2000, Company Holdings, Inc., our wholly-owned subsidiary which we refer to as "CHI," commenced a tender offer for all of the outstanding shares of common stock of Willamette Industries, Inc. at a price of $48.00 per share. We announced that we were increasing the tender offer price to $50.00 per share on May 7, 2001 and to $55.00 per share on December 13, 2001.
Willamette was founded in 1906 as the Willamette Valley Lumber Co. in Dallas, Oregon. In 1967, Willamette Valley and several related firms merged to form Willamette Industries, Inc. Willamette is a forest products company that produces market pulp, fine paper, specialty printing papers, business forms, cut sheets, kraft linerboard, corrugating medium, bag paper, corrugated containers, paper bags, inks, lumber, plywood, particleboard, medium density fiberboard, oriented strand board, laminated beams, laminated veneer lumber, I-joists and other wood products.
On January 28, 2002, we entered into a merger agreement with Willamette and CHI. Pursuant to the merger agreement, CHI filed an amended tender offer for all of the outstanding shares of common stock of Willamette at a purchase price of $55.50 per share. On February 11, 2002, CHI announced the expiration of the tender offer and the acceptance for payment of the tendered shares of Willamette common stock. As of February 11, 2002, we had acquired approximately 106.9 million shares, or approximately 97%, of Willamette's outstanding common stock and Willamette became a subsidiary of CHI.
We completed the merger of CHI with and into Willamette, with Willamette as the surviving corporation, on March 14, 2002. We sometimes refer to this merger as the "second-step merger." In the second-step merger, each share of Willamette common stock, other than shares owned by Willamette, Weyerhaeuser or CHI, was converted into the right to receive $55.50 in cash without interest. Upon completion of the second-step merger, Willamette became our wholly-owned subsidiary.
We plan to merge Willamette with and into Weyerhaeuser Company, the Weyerhaeuser parent company, with Weyerhaeuser Company as the surviving corporation, whereupon the separate corporate existence of Willamette will cease. We sometimes refer to this proposed merger as the "parent company merger." Consummation of the parent company merger will require that we take a number of actions and, as a result, we have not yet established a proposed date for completion of the parent company merger nor can we assure you that the parent company merger will be consummated. However, the remaining Credit Facilities, as defined below, provide that, if the parent company merger is not consummated by March 31, 2003, Willamette Industries, Inc. will be required to guarantee borrowings and other amounts due under the remaining Credit Facilities, in which case it would also be required, under the indenture governing the notes, to guarantee the notes and other debt securities outstanding under the indenture, including the $5.5 billion of debt securities we issued on March 12, 2002 as described above. However, any guarantee by Willamette Industries, Inc. of the notes and other debt securities outstanding under the indenture will terminate upon the earlier of (1) the termination of its guarantee of borrowings under the Credit Facilities and (2) the effectiveness of the parent company merger. Moreover, if the parent company merger is consummated before March 31, 2003, then the covenant in the indenture requiring that Willamette Industries, Inc. guarantee the notes and other debt securities will terminate. See "Description of the Exchange Notes -- Ranking" and "-- Possible Guarantee of Debt Securities." Accordingly, we intend to consummate the parent company merger before March 31, 2003.
Pursuant to the merger agreement, holders of options to purchase shares of Willamette common stock were entitled to surrender their options in exchange for a per option cash payment equal to the amount by which $55.50 exceeds the option exercise price. Upon consummation of the second-step merger, options that were not surrendered became options to purchase shares of our common stock in an amount and at an exercise price adjusted by a conversion ratio based on the $55.50 per share price we paid in the tender offer and the second-step merger and on the market price of our common stock.
Funding for the acquisition was provided under credit facilities we obtained from a syndicate of lenders led by Morgan Stanley Senior Funding, Inc. and JPMorgan Chase Bank (formerly The Chase Manhattan Bank), both of which are affiliates of broker-dealers that were the initial purchasers in the offering of the old notes and to which we collectively refer as the "Lead Lenders." We refer to these credit facilities as the "Credit Facilities." The Credit Facilities were originally comprised of:
(1) a 364-day revolving credit facility (the "364-day Facility") providing for revolving credit loans aggregating up to $2 billion and maturing no later than February 7, 2003 to be made to us and our subsidiary, Weyerhaeuser Real Estate Company, and under which each borrower may, at its option, convert any or all of its outstanding revolving loans into term loans maturing no later than February 7, 2004,
(2) a five-year revolving credit facility providing for aggregate borrowings of up to $2 billion maturing on February 8, 2007 (the "5-year Facility"), and
(3) a bridge revolving credit facility providing for aggregate borrowings of up to $4 billion maturing on August 3, 2003 (the "Bridge Facility").
As described below, the Bridge Facility has been terminated. In addition, we recently amended the 364-day Facility to reduce the maximum amount of loans available under that facility to $1.3 billion in the aggregate and to extend the maturity date of revolving credit loans made under that facility to March 25, 2003 and any term loans made under that facility to March 25, 2004. We also amended the 5-year Facility to reduce the maximum amount of loans available under that facility to $1.3 billion in the aggregate and to extend the maturity date of those loans to March 26, 2007. The 364-day Facility and the 5-year Facility contain representations and warranties, financial and other covenants, mandatory prepayment provisions and events of default.
We used the net proceeds from the sale of the $5.5 billion of debt securities we issued on March 12, 2002 as described above to repay all borrowings outstanding under the Bridge Facility, whereupon the Bridge Facility terminated, and to repay some of the borrowings outstanding under the 5-year Facility. Borrowings
under the 5-year Facility that were repaid with the net proceeds from the sale of these debt securities may be reborrowed, subject to compliance with financial covenants and other conditions.
As of December 30, 2001, on a pro forma basis after giving effect to the completion of our tender offer for shares of common stock of Willamette, the consummation of the second-step merger pursuant to which Willamette became our wholly-owned subsidiary and related transactions, and the sale of the $5.5 billion of debt securities that we issued on March 12, 2002 and the incurrence of borrowings under the Credit Facilities and the application of the net proceeds from the sale of those debt securities and the proceeds from those borrowings to pay the purchase price of shares of Willamette common stock acquired in the tender offer and the second-step merger and related costs and expenses as if those transactions had occurred as of December 30, 2001:
- we would have had total short-term debt of approximately $877 million, including approximately $290 million of borrowings outstanding under credit facilities, and
- we would have had approximately $13.2 billion of total long-term debt, excluding current maturities and less discount, including $564 million of borrowings outstanding under credit facilities.
These pro forma amounts do not give effect to liabilities incurred by Weyerhaeuser or Willamette subsequent to December 30, 2001, including the indebtedness described in the following paragraph.
We estimate that the total amount of funds required to purchase the outstanding Willamette shares pursuant to the tender offer and in connection with the second-step merger and to pay estimated costs and expenses related to the acquisition of Willamette was approximately $6.3 billion. In addition, at the time of consummation of the tender offer we incurred approximately $500 million of additional borrowings under the Credit Facilities to repay approximately $500 million of Willamette's indebtedness outstanding at that time (including approximately $116 million of indebtedness incurred by Willamette subsequent to December 31, 2001). As of February 12, 2002, after giving effect to this repayment, Willamette had total outstanding indebtedness of approximately $1.3 billion, and we guaranteed most of this indebtedness, effective upon consummation of the second-step merger.
The description of some of the terms of the merger agreement and the Credit Facilities appearing in prospectus is not complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the merger agreement and the Credit Facilities. Copies of the merger agreement and the Credit Facilities have been filed or incorporated by reference as exhibits to the documents incorporated by reference in this prospectus and are available as described under "Available Information."
REDUCTION IN CREDIT RATING ON OUR DEBT SECURITIES
On February 11, 2002, Moody's Investor Services announced that it had lowered its rating on our senior unsecured debt, which includes the old notes and, if issued, will include the exchange notes, to "Baa2" from "A3" as a result of the increase in our leverage resulting from the acquisition of Willamette. On February 15, 2002, Standard & Poor's announced that it had lowered its rating on our long-term senior debt, which includes the old notes and, if issued, will include the exchange notes, to "BBB" from "A-" for the same reason. Credit rating agencies may from time to time change their ratings on our debt securities, including the old notes and, if issued, the exchange notes, as a result of our operating results or actions we take or as a result of a change in the views of the credit rating agencies regarding, among other things, the general outlook for our industry or the economy. In addition, we are not able to predict the effect of the Willamette acquisition on our financial condition or results of operations, including cash flows, earnings or earnings per share. There can be no assurance that Standard & Poor's and Moody's or other rating agencies will not reduce their ratings of our debt securities or place those debt securities on a so-called "watch list" for possible future downgrading. Any of these events will likely increase our costs of debt and other financing and have an adverse effect on the market price of the old notes and, if issued, the exchange notes. The credit ratings accorded to our debt securities, including the old notes and, if issued, the exchange notes, are not recommendations to purchase, hold or sell those debt securities inasmuch as those ratings do not comment as to the market price or suitability for particular investors.
USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of the exchange notes offered by this prospectus. In consideration of issuing the exchange notes as contemplated by this prospectus, we will receive a like principal amount of old notes. The terms of the exchange notes will be identical in all material respects to the terms of the old notes, except that the transfer restrictions, registration rights and additional interest provisions applicable to the old notes will not be applicable to the exchange notes. The old notes tendered in exchange for the exchange notes will be retired and cancelled. Accordingly, the issuance of the exchange notes will not result in any increase in our indebtedness.
RATIOS OF EARNINGS TO FIXED CHARGES
The following table presents the ratios of earnings to fixed charges for Weyerhaeuser Company and its consolidated subsidiaries for the periods indicated.
FISCAL YEAR
-------------------------------------
2001 2000 1999 1998 1997
----- ----- ----- ----- -----
Ratio of earnings to fixed charges(1).................. 2.23x 3.58x 3.45x 2.20x 2.29x
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(1) For the purpose of calculating the ratios of earnings to fixed charges, earnings consist of earnings before income taxes, extraordinary items, undistributed earnings of equity investments and fixed charges. Fixed charges consist of interest on indebtedness, amortization of debt expense and one-third of rents, which we deem representative of an interest factor. The ratios of earnings to fixed charges of Weyerhaeuser Company with its Weyerhaeuser Real Estate Company, Weyerhaeuser Financial Services, Inc. and Gryphon Investments of Nevada, Inc. subsidiaries accounted for on the equity method but excluding the undistributed earnings of those subsidiaries were 1.58x, 3.58x, 3.78x, 2.72x and 2.91x for the fiscal years ended December 30, 2001, December 31, 2000, December 26, 1999, December 27, 1998 and December 28, 1997, respectively.
On a pro forma basis after giving effect to the completion of our tender offer for shares of common stock of Willamette, the consummation of the second-step merger pursuant to which Willamette became our wholly-owned subsidiary and related transactions, and the sale of the $5.5 billion of debt securities we issued on March 12, 2002 as described above under "Recent Developments -- Sale of $5.5 Billion of Debt Securities" and the incurrence of bank borrowings and the application of the estimated net proceeds from the sale of those debt securities and the proceeds from those borrowings to pay the purchase price of shares of Willamette stock acquired in the tender offer and the second-step merger and related costs and expenses as if those transactions had occurred as of the first day of our 2001 fiscal year, our pro forma ratio of earnings to fixed charges for the fiscal year ended December 30, 2001 would have been 1.33x. On a pro forma basis after giving effect to the transactions described above and accounting for our Weyerhaeuser Real Estate Company, Weyerhaeuser Financial Services, Inc. and Gryphon Investments of Nevada, Inc. subsidiaries on the equity method but excluding the undistributed earnings of those subsidiaries, our pro forma ratio of earnings to fixed charges for the fiscal year ended December 30, 2001 would have been 0.98x and our pro forma fixed charges would have exceeded our pro forma earnings for that fiscal year by approximately $14.6 million. These pro forma ratios and this pro forma amount do not give effect to approximately $116 million of indebtedness that Willamette incurred subsequent to December 31, 2001, nor do they give effect to our incurrence of approximately $500 million of additional borrowings under the Credit Facilities on February 12, 2002 or the application of the proceeds from those borrowings to repay approximately $500 million of Willamette's indebtedness (including the $116 million of indebtedness incurred by Willamette subsequent to December 31, 2001).
These pro forma ratios of earnings to fixed charges are subject to a number of estimates, assumptions and uncertainties, including assumed rates of interest on a substantial portion of our pro forma indebtedness, and do not purport to reflect what our ratios of earnings to fixed charges would have been had the acquisition of Willamette and the other transactions described above taken place on the date indicated, nor do they purport to reflect our ratios of earnings to fixed charges for any future period. For example, our acquisition of
Willamette will be accounted for using the purchase method of accounting. The total purchase price of the acquisition will be allocated to the assets and liabilities acquired based upon their respective estimated fair market values. The allocation of the purchase price reflected in the unaudited pro forma condensed consolidated financial statements upon which the pro forma ratios of earnings to fixed charges are based is preliminary, was performed as of December 30, 2001, and is subject to adjustment upon, among other things, receipt of appraisals and valuations of some of the acquired assets and liabilities and changes resulting from operations subsequent to December 30, 2001. Accordingly, the final allocation of the purchase price to the acquired assets and liabilities, which will be performed as of February 11, 2002, may differ from the allocation reflected in those unaudited pro forma condensed consolidated financial statements. The pro forma ratios should be read in conjunction with, and are qualified in their entirety by reference to, the unaudited pro forma condensed consolidated financial statements incorporated by reference in this prospectus from our Form 8-K filed with the SEC on March 28, 2002 and the consolidated financial statements and related notes of Weyerhaeuser and Willamette incorporated by reference in this prospectus.
THE EXCHANGE OFFER
The following summary of selected provisions of the exchange offer and the registration rights agreement is not complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the exchange offer appearing in this prospectus and the related letter of transmittal and all of the provisions of the registration rights agreement. A copy of the letter of transmittal is being distributed to holders of the old notes together with this prospectus and copies of the letter of transmittal and the registration rights agreement have been filed as exhibits to the registration statement of which this prospectus is a part and you may obtain copies of those documents as described below under "Available Information" and "Incorporation by Reference."
PURPOSE OF THE EXCHANGE OFFER
In connection with the sale of the old notes, we entered into the registration rights agreement pursuant to which we agreed, among other things, to use our reasonable best efforts to consummate an exchange offer with respect to the exchange of the exchange notes for old notes pursuant to an effective registration statement. The registration rights agreement provides, among other things, that if we have not consummated the exchange offer on or prior to June 3, 2002, then, in addition to the interest otherwise payable on the old notes, additional interest will accrue and be payable on the old notes at the rate of 0.25% per annum from and including the day immediately succeeding June 3, 2002 until the exchange offer is consummated unless we file a shelf registration statement with respect to the old notes with the SEC and comply with other conditions. The terms of the exchange notes will be identical in all material respects to the terms of the old notes, except that additional interest as described in the preceding sentence will not be payable in respect of the exchange notes and the exchange notes will have been registered under the Securities Act and therefore will not be subject to certain restrictions on transfer applicable to the old notes and will not be entitled to any registration rights under the registration rights agreement.
Upon consummation of the exchange offer, holders of old notes will not be entitled to any further registration rights under the registration rights agreement and will not be entitled to any additional interest as described above. In addition, failure to exchange old notes for exchange notes may have other adverse consequences, some of which are described above under "Prospectus Summary -- Consequences of Failure to Exchange the Old Notes."
The exchange offer is not being made to, nor will we accept tenders for exchange from or on behalf of, holders of old notes in any jurisdiction in which the exchange offer or the acceptance of the exchange offer would not be in compliance with the laws of that jurisdiction or would otherwise not be in compliance with any applicable securities or blue sky laws.
TERMS OF THE EXCHANGE OFFER
We hereby offer, upon the terms and subject to the conditions set forth in this prospectus and in the accompanying letter of transmittal, to issue up to $750,000,000 aggregate principal amount of exchange notes
in exchange for a like aggregate principal amount of old notes that are validly tendered on or prior to the Expiration Date and not withdrawn in accordance with the procedures described below. Promptly after the Expiration Date, we will issue up to $750,000,000 aggregate principal amount of exchange notes in exchange for a like principal amount of outstanding old notes validly tendered and accepted by us in the exchange offer. Holders may tender their old notes in whole or in part in a principal amount of $1,000 and integral multiples of $1,000.
The exchange offer is not conditioned upon any minimum principal amount of old notes being tendered. As of the date of this prospectus, $750,000,000 aggregate principal amount of old notes is outstanding.
Holders of old notes do not have any appraisal or dissenters' rights in connection with the exchange offer. Old notes that are not tendered for exchange or are tendered but not accepted in connection with the exchange offer will remain outstanding, will continue to be entitled to the benefits of the Indenture, as defined below, and will continue to bear interest at the rate of 5.95% per annum.
If any tendered old notes are not accepted for exchange because of an invalid tender, the occurrence of other events described in this prospectus or otherwise, the unaccepted old notes will be re-credited to the applicable account at DTC or, in any case where old notes in definitive certificated form ("certificated old notes") are surrendered for exchange, we will return those certificated old notes, without expense, to the tendering holder promptly after the Expiration Date.
Holders who tender old notes in connection with the exchange offer will not be required to pay brokerage commissions or fees or, except as otherwise provided in the instructions in the letter of transmittal and in the discussion below under "-- Fees and Expenses," transfer taxes with respect to the exchange of old notes in connection with the exchange offer. We will pay all charges and expenses, other than specified taxes described below, in connection with the exchange offer. See "-- Fees and Expenses."
NEITHER WE NOR OUR BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO HOLDERS OF OLD NOTES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL OR ANY PORTION OF THEIR OLD NOTES PURSUANT TO THE EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE ANY SUCH RECOMMENDATION. HOLDERS OF OLD NOTES MUST
MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF OLD NOTES TO TENDER AFTER READING THIS PROSPECTUS, TOGETHER WITH THE DOCUMENTS INCORPORATED AND DEEMED TO BE INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL, AND CONSULTING WITH THEIR ADVISERS, IF ANY, BASED ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" means 5:00 p.m., New York City time, on May 2, 2002 unless we extend the term of the exchange offer, in which case the term "Expiration Date" will mean the latest date and time to which the exchange offer is extended.
We expressly reserve the right in our sole and absolute discretion, subject to applicable law, at any time and from time to time:
(1) to delay the acceptance of the old notes for exchange,
(2) to terminate the exchange offer, whether or not any old notes have previously been accepted for exchange, if we determine, in our sole and absolute discretion, that any of the events or conditions referred to under "-- Certain Conditions to the Exchange Offer" has occurred or exists or has not been satisfied,
(3) to extend the Expiration Date of the exchange offer from time to time and retain all old notes tendered pursuant to the exchange offer, subject, however, to the right of holders of old notes to withdraw their tendered old notes as described under "-- Withdrawal Rights," and
(4) to waive any condition or otherwise amend the terms of the exchange offer in any respect.
If the exchange offer is amended in a manner determined by us to constitute a material change, or if we waive a condition of the exchange offer that we determine to be material, we will promptly disclose that amendment or waiver by means of a supplement to this prospectus and we will extend the exchange offer to the extent required by Rule 14e-1 under the Securities Exchange Act.
Any such delay in acceptance, extension, termination or amendment will be followed promptly by oral, promptly confirmed in writing, or written notice to the exchange agent and by making a public announcement, and that announcement in the case of an extension will be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Date. We may make that public announcement by issuing a press release or in any other manner that we deem appropriate, subject to applicable law.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF EXCHANGE NOTES
Upon the terms and subject to the conditions of the exchange offer, we will exchange, and will issue and deliver to the exchange agent, exchange notes for old notes validly tendered and not withdrawn promptly after the Expiration Date.
In all cases, delivery of exchange notes in exchange for old notes validly tendered and accepted for exchange pursuant to the exchange offer will be made only after timely receipt by the exchange agent of:
(1) certificates evidencing the old notes or a book-entry confirmation of a book-entry transfer of the old notes into the exchange agent's account at DTC, and
(2) the letter of transmittal, properly completed and duly executed or, if old notes are tendered pursuant to the procedures for book-entry transfer, an agent's message, as defined below, and any other documents required by the letter of transmittal,
in each case in compliance with the procedures described below under "-- Procedures for Tendering Old Notes." The term "book-entry confirmation" means a timely confirmation of a book-entry transfer of old notes into the exchange agent's account at DTC.
Subject to the terms and conditions of the exchange offer, we will be deemed to have accepted for exchange, and thereby exchanged, old notes validly tendered and not withdrawn as, if and when we give oral, promptly confirmed in writing, or written notice to the exchange agent of our acceptance of those old notes for exchange pursuant to the exchange offer. The exchange agent will act as our agent and as agent for tendering holders for the purpose of receiving tenders of book-entry confirmations, agent's messages, certificated old notes, letters of transmittal and related documents and transmitting exchange notes to validly tendering holders. The exchange of exchange notes for old notes will be made promptly after the Expiration Date. If, for any reason whatsoever, acceptance for exchange or the exchange of any old notes tendered pursuant to the exchange offer is delayed, whether before or after our acceptance for exchange of old notes, or if we extend the exchange offer or are unable to accept for exchange or exchange old notes tendered pursuant to the exchange offer, then, without prejudice to our rights described in this prospectus, the exchange agent may, nevertheless, on our behalf and subject to Rule 14e-1(c) under the Securities Exchange Act, retain tendered old notes and those old notes may not be withdrawn except to the extent tendering holders are entitled to withdrawal rights as described under "-- Withdrawal Rights."
Pursuant to the terms of the exchange offer, a holder of old notes will represent and warrant that it has full power and authority to tender, exchange, sell, assign and transfer old notes, that we will acquire good, marketable and unencumbered title to the tendered old notes, free and clear of all liens, restrictions, charges and encumbrances, and that old notes tendered for exchange are not subject to any adverse claims or proxies. The holder also will agree that it will, upon request, execute and deliver any additional documents deemed by us or the exchange agent to be necessary or desirable to complete the exchange, sale, assignment, and transfer of the old notes tendered pursuant to the exchange offer.
PROCEDURES FOR TENDERING OLD NOTES
Valid Tender. In order for old notes to be validly tendered pursuant to the exchange offer, a holder of old notes must either:
- complete, sign and date the letter of transmittal or a facsimile of the letter of transmittal, have the signatures guaranteed if required by the letter of transmittal and mail or otherwise deliver that letter of transmittal or facsimile to the exchange agent, or
- if the old notes are tendered pursuant to procedures for book-entry transfer described below, transmit an agents' message, as defined below, to the exchange agent instead of the letter of transmittal,
in either case for receipt by the exchange agent on or prior to the Expiration Date. In addition:
- certificates for the old notes being tendered for exchange must be received by the exchange agent along with the letter of transmittal (or a facsimile of the letter of transmittal) and any other documents required by the letter of transmittal on or prior to the Expiration Date, or
- a timely confirmation of a book-entry transfer of the old notes into the exchange agent's account at DTC pursuant to the procedures for book-entry transfer described below, along with the letter of transmittal (or a facsimile of the letter of transmittal) and any other documents required by the letter of transmittal or an agent's message, must be received by the exchange agent on or prior to the Expiration Date, or
- the holder must comply with the guaranteed delivery procedures described below under "-- Guaranteed Delivery" on or prior to the Expiration Date.
The term "agent's message" means a message, transmitted to the exchange agent's account at DTC and received by the exchange agent and forming a part of the book-entry confirmation, which states that DTC has received an express acknowledgement from the tendering DTC participant that the participant has received and agrees to be bound by, and makes the representations and warranties contained in, the letter of transmittal and that we may enforce the letter of transmittal against that participant. Anything in this prospectus or the letter of transmittal to the contrary notwithstanding, if old notes are tendered pursuant to the procedures for book-entry transfer as described above, the holder of those old notes must cause an agent's message to be received by the exchange agent on or prior to the Expiration Date.
To be tendered in accordance with the terms of the exchange offer, certificates evidencing the old notes being tendered for exchange or a book-entry confirmation, and the letter of transmittal and other required documents or an agent's message in lieu thereof, as the case may be, must be received by the exchange agent at one of the addresses specified under "-- Exchange Agent."
If less than all of the old notes delivered to the exchange agent by a holder are being tendered, the tendering holder should fill in the amount of old notes being tendered in the appropriate box on the letter of transmittal. The entire amount of old notes delivered to the exchange agent will be deemed to have been tendered unless otherwise indicated.
A tender by a holder that is not withdrawn prior to the Expiration Date in accordance with the procedures described below under "-- Withdrawal Rights" will constitute an agreement between that holder and us in accordance with the terms and subject to the conditions set forth in this prospectus and the letter of transmittal.
THE METHOD OF DELIVERY OF THE BOOK-ENTRY CONFIRMATION, THE AGENT'S MESSAGE, CERTIFICATES EVIDENCING THE OLD NOTES AND THE LETTER OF TRANSMITTAL, AS THE CASE MAY BE, AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND SOLE RISK OF THE TENDERING HOLDER, AND DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF A LETTER OF TRANSMITTAL IS USED OR CERTIFICATES
EVIDENCING THE OLD NOTES ARE DELIVERED TO THE EXCHANGE AGENT, WE RECOMMEND THAT
HOLDERS USE AN OVERNIGHT OR HAND DELIVERY SERVICE, IN EACH CASE PROPERLY
INSURED,
RATHER THAN DELIVERY BY MAIL. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
Book-Entry Transfer. The exchange agent has established or will establish an account with respect to the old notes at DTC for purposes of the exchange offer. Any financial institution that is a participant in DTC's book-entry transfer system may make a book-entry delivery of the old notes by causing DTC to transfer the old notes into the exchange agent's account at DTC in accordance with DTC's procedures for transfers. However, although delivery of old notes may be effected through book-entry transfer at DTC, the letter of transmittal or a facsimile thereof, with any required signature guarantees and any other required documents, or an agents' message in lieu of the letter of transmittal, must, in any case, be transmitted to and received by the exchange agent on or prior to the Expiration Date or the holder must comply with the guaranteed delivery procedures described below under "-- Guaranteed Delivery."
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S PROCEDURES DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Signature Guarantees. Certificates for the old notes need not be endorsed and signature guarantees on the letter of transmittal, if applicable, will not be required unless:
(a) the person surrendering the old notes for tender or signing the letter of transmittal, if applicable, is not the registered holder of the old notes being tendered, or
(b) the person tendering the old notes completes the box entitled "Special Issuance Instructions" or "Special Delivery Instructions" in the letter of transmittal,
except that signature guarantees will not be required in the case of old notes that are tendered for the account of an Eligible Institution, as defined below. In the case of (a) or (b) above, the certificates for the old notes must be duly endorsed or accompanied by a properly executed bond power, and the endorsement or signature on the bond power and on the letter of transmittal must be guaranteed by a firm or other entity identified in Rule 17Ad-15 under the Securities Exchange Act as an "eligible guarantor institution," including, as the following terms are defined in that Rule:
- a bank;
- a broker, dealer, municipal securities broker, municipal securities dealer, government securities broker, or government securities dealer;
- a credit union;
- a national securities exchange, registered securities association or clearing agency; or
- a savings association (each, an "Eligible Institution"),
except that no signature guarantee will be required if the old notes are being tendered for the account of an Eligible Institution.
Guaranteed Delivery. If a holder desires to tender old notes pursuant to the exchange offer and time will not permit all required documents, including, if applicable, certificates evidencing the old notes, to reach the exchange agent on or before the Expiration Date, or the procedures for book-entry transfer cannot be completed on or before the Expiration Date, the old notes may nevertheless be tendered, provided that all of the following guaranteed delivery procedures are complied with:
(1) the tender is made by or through an Eligible Institution;
(2) a properly completed and duly executed notice of guaranteed delivery, substantially in the form accompanying the letter of transmittal, is received by the exchange agent, as provided below, on or prior to the Expiration Date; and
(3) the certificates representing all tendered old notes, in proper form for transfer, or a book-entry confirmation, together with a properly completed and duly executed letter of transmittal, or facsimile, with any required signature guarantees and any other documents required by the letter of transmittal or,
instead of a letter of transmittal, an appropriate agent's message pursuant to DTC's procedures, are received by the exchange agent within three New York Stock Exchange trading days after the Expiration Date.
The notice of guaranteed delivery may be delivered by hand or transmitted by facsimile or mail to the exchange agent to one of the addresses appearing below and must include a guarantee by an Eligible Institution in the form set forth in that notice.
Notwithstanding any other provision hereof, the delivery of exchange notes in exchange for old notes duly tendered and accepted for exchange pursuant to the exchange offer will in all cases be made only after timely receipt by the exchange agent of old notes, or of a book-entry confirmation with respect to the old notes, and a properly completed and duly executed letter of transmittal (or facsimile thereof), together with any required signature guarantees and any other documents required by the letter of transmittal or, instead of a letter of transmittal, an appropriate agent's message through DTC's book-entry system. Accordingly, the delivery of exchange notes may not be made to all tendering holders at the same time, and will depend upon when old notes, book-entry confirmations and agent's messages with respect to old notes and other required documents are received by the exchange agent.
Our acceptance for exchange of old notes tendered pursuant to the procedures described in this prospectus and the letter of transmittal will constitute a binding agreement between the tendering holder and us upon the terms and subject to the conditions of the exchange offer.
Determination of Validity. All questions as to the form of documents, validity, eligibility, including time of receipt, and acceptance for exchange of any tendered old notes will be determined by us, in our sole and absolute discretion, and that determination will be final and binding on all parties. We reserve the right, in our sole and absolute discretion, to reject any and all tenders determined by us not to be in proper form or the acceptance of which, or exchange for, may, in the view of our counsel, be unlawful. We also reserve the right, in our sole and absolute discretion, subject to applicable law, to waive any of the conditions of the exchange offer as set forth under "-- Certain Conditions of the Exchange Offer" or any condition or irregularity in any tender of any old notes of any particular holder whether or not similar conditions or irregularities are waived in the case of other holders.
Our interpretation of the terms and conditions of the exchange offer, including the letter of transmittal and the related instructions, will be final and binding. No tender of old notes will be deemed to have been validly made until all defects and irregularities with respect to that tender have been cured or waived. Neither we, any of our affiliates, the exchange agent nor any other person will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification.
If any letter of transmittal, endorsement, bond power, power of attorney, or any other document required by the letter of transmittal is signed by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a corporation or other person acting in a fiduciary or representative capacity, that person should so indicate when signing and, unless waived by us, proper evidence satisfactory to us, in our sole and absolute discretion, of that person's authority to so act must be submitted.
A beneficial owner of old notes that are held by or registered in the name of a broker, dealer, commercial bank, trust company or other nominee or custodian is urged to contact that entity promptly if that beneficial holder wishes to participate in the exchange offer.
We reserve the right in our sole and absolute discretion to purchase or make offers for any old notes that remain outstanding subsequent to the Expiration Date and, to the extent permitted by law, purchase old notes in the open market, in privately negotiated transactions or otherwise. The terms of any of those purchases or offers may differ from the terms of the exchange offer.
RESALES OF EXCHANGE NOTES
We are making the exchange offer in reliance on the position of the staff of the Division of Corporation Finance of the SEC as set forth in certain interpretive letters addressed to parties unrelated to us in other transactions. However, we have not sought our own interpretive letter and there can be no assurance that the staff of the Division of Corporation Finance of the SEC would make a similar determination with respect to the exchange offer as it has in those interpretive letters to other parties. Based on those interpretations by the staff of the Division of Corporation Finance of the SEC and except as described in the following sentence, we believe that exchange notes issued pursuant to this exchange offer in exchange for old notes may be offered for resale, resold and otherwise transferred by a holder without further compliance with the registration and prospectus delivery requirements of the Securities Act, provided that the holder is not an "affiliate," within the meaning of Rule 405 under the Securities Act, of ours, the holder acquired the exchange notes in the ordinary course of its business, the holder has no arrangement or understanding with any person to participate in the distribution of the old notes or the exchange notes within the meaning of the Securities Act, and the holder is not a broker-dealer that purchased the old notes being tendered in the exchange offer directly from us for resale pursuant to Rule 144A or another available exemption from registration under the Securities Act. Any holder of old notes who intends to participate in the exchange offer for the purpose of distributing exchange notes or to participate in a distribution of the exchange notes, or any broker dealer who purchased the old notes being tendered in the exchange offer directly from us to resell pursuant to Rule 144A or any other available exemption under the Securities Act:
- will not be able to rely on the interpretations of the staff of the Division of Corporation Finance of the SEC set forth in the above-mentioned interpretive letters,
- will not be permitted or entitled to tender those old notes in the exchange offer, and
- must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer of, or other secondary resale transaction involving, notes. Any such sale, transfer or other secondary resale transaction should be covered by an effective registration statement containing the selling securityholder information required by Item 507 of Regulation S-K under the Securities Act.
In addition, as described below, if any broker-dealer holds old notes acquired for its own account as a result of market-making activities or other trading activities and exchanges those old notes for exchange notes, that broker-dealer must deliver a prospectus meeting the requirements of the Securities Act in connection with any resales of those exchange notes.
Each holder of old notes who wishes to exchange old notes for exchange notes pursuant to the exchange offer will be required to represent as follows:
- any exchange notes received by that holder will be acquired in the ordinary course of its business,
- the holder has no arrangement or understanding with any person to participate in the distribution of the old notes or the exchange notes within the meaning of the Securities Act,
- the holder is not an "affiliate," as defined in Rule 405 of the Securities Act, of us, or, if it is such an affiliate, the holder will comply with the registration and prospectus delivery requirements of the Securities Act to the extent applicable (it being understood that, if we effect the exchange offer, we will not be required to register exchange notes owned by any such affiliate under the Securities Act or to make a prospectus available for the resale of those exchange notes),
- the holder is not engaged in, and does not intend to engage in, the distribution of the exchange notes within the meaning of the Securities Act,
- if that holder is a broker-dealer, that it will receive exchange notes in exchange for old notes that were acquired for its own account as a result of market-making activities or other trading activities and that it will be required to acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of those exchange notes, and
- if that holder is a broker-dealer, it did not purchase the old notes being tendered in the exchange offer directly from us for resale pursuant to Rule 144A or any other available exemption from registration under the Securities Act.
Any holder that is not able to make these representations or certain similar representations contained in the letter of transmittal will not be entitled to participate in the exchange offer or to exchange their old notes for exchange notes.
As described above, any broker-dealer that receives exchange notes for its own account in exchange for old notes pursuant to the exchange offer must acknowledge that it acquired those old notes for its own account as a result of market-making activities or other trading activities and will be required to acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of those exchange notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus to the buyer, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Division of Corporation Finance of the SEC in the interpretive letters referred to above, we believe that broker-dealers who hold old notes acquired for their own accounts as a result of market-making activities or other trading activities ("participating broker-dealers") may fulfill their prospectus delivery requirements with respect to the exchange notes received upon exchange of those old notes, other than old notes which represent an unsold allotment from the initial offering of the old notes, with a prospectus meeting the requirements of the Securities Act, which may be the prospectus prepared for an exchange offer so long as it contains a description of the plan of distribution with respect to the resale of those exchange notes. Accordingly, this prospectus, as it may be amended or supplemented from time to time, may be used by a participating broker-dealer during the period referred to below in connection with resales of exchange notes received in exchange for old notes where those old notes were acquired by the participating broker-dealer for its own account as a result of market-making or other trading activities. Subject to provisions set forth in the registration rights agreement, we have agreed that this prospectus, as it may be amended or supplemented from time to time, may be used by a participating broker-dealer in connection with resales of those exchange notes for a period of 180 days after the Expiration Date, subject to exceptions, including our right to suspend the use of this prospectus as described below. However, a participating broker- dealer who intends to use this prospectus in connection with the resale of exchange notes must, on or before the Expiration Date, notify or cause the exchange agent to be notified, in the manner provided in the letter of transmittal, that it is a participating broker-dealer. Any participating broker-dealer who is an "affiliate," within the meaning of Rule 405 of the Securities Act, of ours may not rely on those interpretive letters and may not use this prospectus in connection with the resale of exchange notes.
Pursuant to the registration rights agreement, we will be entitled from
time to time, by notice to participating broker-dealers given as provided in the
registration rights agreement, to require participating broker-dealers to
discontinue the sale or other disposition of exchange notes pursuant to this
prospectus for a period not to exceed 120 days (whether or not consecutive) in
any period of twelve consecutive months under certain circumstances relating to
possible acquisitions or business combinations or other transactions, business
developments or other events involving us, or because of the happening of any
event that makes any statement made in this prospectus or the related
registration statement untrue in any material respect or as a result of which
this prospectus or the related registration statement contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or which requires the
making of any changes in this prospectus or that registration statement in order
to make the statements therein not misleading. As used in the preceding
sentence, references to this prospectus and the registration statement include
the documents incorporated and deemed to be incorporated by reference in this
prospectus and the registration statement. In that regard, each participating
broker-dealer who receives exchange notes upon surrender of old notes pursuant
to the exchange offer will be deemed to have agreed that, upon receipt of any
such notice from us, that participating broker-dealer will forthwith discontinue
the sale or other disposition of exchange notes pursuant to this prospectus
until we have either delivered copies of a supplemented or amended prospectus or
given notice that disposition of exchange notes may be resumed using the then
current
prospectus, as the case may be. If we give such notice to suspend the sale of the exchange notes, we will extend the 180-day period referred to above during which participating broker-dealers are entitled to use this prospectus in connection with the resale of exchange notes by the number of days during the period from and including the date of the giving of that notice to and including the date when participating broker-dealers shall have received copies of the amended or supplemented prospectus necessary to permit resales of the exchange notes or to and including the date on which participating broker-dealers have received notice that the disposition of exchange notes may be resumed using the then current prospectus.
WITHDRAWAL RIGHTS
Except as otherwise provided herein, tenders of old notes may be withdrawn at any time on or prior to the Expiration Date.
In order for a withdrawal to be effective, a written or facsimile transmission of a notice of withdrawal must be received by the exchange agent at one of its addresses set forth under "-- Exchange Agent" on or prior to the Expiration Date. Any notice of withdrawal must:
- specify the name of the person who tendered the old notes to be withdrawn and the aggregate principal amount of old notes being withdrawn,
- identify the previously tendered old notes to be withdrawn, including the registration numbers and principal amount of those old notes or, in the case of old notes transferred by a book-entry transfer through DTC, the name and number of the account at DTC to be credited with the old notes being withdrawn,
- if old notes in certificated form were tendered, contain the name of the registered holder of the old notes, if different from that of the person who tendered the old notes, and
- be signed by the holder in the same manner as the original signature on the letter of transmittal (if used), including any required signature guarantees or, if an agent's message was submitted instead of a letter of transmittal, the withdrawal notice must be transmitted by DTC and received by the exchange agent in the same manner as the agent's message originally tendering the old notes for exchange.
If old notes have been tendered pursuant to the procedures for book-entry transfer described above, any notice of withdrawal must comply with DTC's procedures. Withdrawals of tenders of old notes may not be rescinded. Old notes properly withdrawn will not be deemed validly tendered for purposes of the exchange offer, but may be retendered at any subsequent time on or prior to the Expiration Date by following the procedures described under "-- Procedures for Tendering Old Notes."
All questions as to the validity, form and eligibility, including time of receipt, of withdrawal notices will be determined by us, in our sole and absolute discretion, and that determination will be final and binding on all parties. Neither we, our affiliates, the exchange agent nor any other person shall be under any duty to give any notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notification. Any old notes which have been tendered but which are withdrawn will be returned to the holder thereof or, in the case of old notes tendered by book-entry transfer, will be credited to the account at DTC designated in the notice of withdrawal promptly after withdrawal.
INTEREST ON THE EXCHANGE NOTES
The exchange notes will bear interest from May 1, 2002. The first interest payment date for the exchange notes will be November 1, 2002 and the interest payable on the exchange notes on that date will be paid to the persons in whose names the exchange notes are registered at the close of business on October 15, 2002. Because the exchange notes will not be issued until after May 1, 2002, holders of the exchange notes will not be entitled to receive the interest payable on the interest payment date falling on May 1, 2002. Instead, interest payable on the interest payment date falling on May 1, 2002 will be payable on the old notes and will be paid to the persons in whose names the old notes are registered at the close of business on April 15, 2002.
Holders of old notes whose old notes are accepted for exchange will not receive accrued interest on those old notes for any period from and after the interest payment date falling on May 1, 2002, and will be deemed to have waived the right to receive any interest on those old notes accrued from and after that interest payment date.
CERTAIN CONDITIONS TO THE EXCHANGE OFFER
Notwithstanding any other provisions of the exchange offer or any extension of the exchange offer, we will not be required to accept for exchange, or to exchange, any old notes for any exchange notes and, as described below, may terminate the exchange offer, whether or not any old notes have theretofore been accepted for exchange, if the exchange offer violates applicable law or any applicable interpretation of the staff of the SEC.
If we determine in our sole and absolute discretion that any of the foregoing events or conditions has occurred or exists or has not been satisfied, we may, subject to applicable law, terminate the exchange offer, whether or not any old notes have theretofore been accepted for exchange, or may waive any such condition or otherwise amend the terms of the exchange offer in any respect. If we determine, in our sole and absolute discretion, that any such waiver or amendment constitutes a material change to the exchange offer, we will promptly disclose that waiver or amendment by means of a supplement to this prospectus and we will extend the exchange offer to the extent required by Rule 14e-1 under the Securities Exchange Act.
EXCHANGE AGENT
JPMorgan Chase Bank has been appointed as exchange agent for the exchange offer. Delivery of the certificates evidencing the old notes, book-entry confirmations, agent's messages, letters of transmittal and any other required documents, questions, requests for assistance, and requests for additional copies of this prospectus, the letter of transmittal or the notice of guaranteed delivery should be directed to the exchange agent as follows:
By Mail, Overnight Courier, or Hand Delivery:
JPMorgan Chase Bank
55 Water Street, Second Floor
Room 234 -- North Building
New York, New York 10041
Reference: Weyerhaeuser Company Exchange
To Confirm by Telephone or for Information:
(212) 638-0459
Attention: Victor Matis
Reference: Weyerhaeuser Company Exchange
Facsimile Transmissions:
(212) 638-7380 or 7381 Reference: Weyerhaeuser Company Exchange Confirm by Telephone:
(212) 638-0459
Attention: Victor Matis
Reference: Weyerhaeuser Company Exchange
Delivery to other than one of the above addresses or facsimile numbers will not constitute a valid delivery.
FEES AND EXPENSES
We have agreed to pay the exchange agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses. We will also, upon request, reimburse brokerage houses and other custodians, nominees and fiduciaries for the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this prospectus and related documents to the beneficial owners of old notes, and in handling or tendering for their customers. We will not make any other payments to brokers, dealers or others soliciting acceptances of the exchange offer.
Holders who tender their old notes for exchange will not be obligated to pay any transfer taxes in connection with those exchanges. If, however, exchange notes are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the old notes tendered, or if a transfer tax is imposed for any reason other than the exchange of old notes in connection with the exchange offer, then the amount of any transfer taxes, whether imposed on the registered holder or any other persons, will be payable by the tendering holder. If satisfactory evidence of payment of those taxes or exemption from those taxes is not submitted with the applicable letter of transmittal or agent's message, the amount of those transfer taxes will be billed directly to the tendering holder.
DESCRIPTION OF THE EXCHANGE NOTES
The old notes were issued and the exchange notes will be issued under an indenture dated as of April 1, 1986, as amended and supplemented by a first supplemental indenture dated as of February 15, 1991, a second supplemental indenture dated as of February 1, 1993, a third supplemental indenture dated as of October 22, 2001, and a fourth supplemental indenture dated as of March 12, 2002, each between us and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as trustee. We refer to the indenture, as so amended and supplemented, as the "Indenture." The following summary of selected provisions of the Indenture and the notes is not complete and is subject to, and is qualified in its entirety by reference to, all the provisions of the Indenture and the notes. Copies of the Indenture and the forms of certificates evidencing the notes have been filed or incorporated by reference as exhibits to the registration statement of which this prospectus is a part and you may obtain copies of those documents as described below under "Available Information" and "Incorporation by Reference."
In this section, references to "Weyerhaeuser," "we," "our" and "us" mean Weyerhaeuser Company excluding, unless the context otherwise requires or otherwise expressly stated, its subsidiaries, and references to "Willamette" or "Willamette Industries, Inc." mean Willamette Industries, Inc. excluding, unless the context otherwise requires or otherwise expressly stated, its subsidiaries. Capitalized terms that are used in the following summary but not defined have the meanings given to those terms in the Indenture. The numerical references appearing in parentheses in the following summary are to sections of the Indenture.
GENERAL
The Indenture provides that we may issue debt securities ("debt securities") under the Indenture from time to time in one or more series and permits us to establish the terms of each series of debt securities at the time of issuance. The Indenture does not limit the amount of debt securities that we may issue under the Indenture and provides the debt securities may be denominated and payable in foreign currencies or units based on or relating to foreign currencies.
The old notes and the exchange notes will constitute a separate series of debt securities under the Indenture, initially limited to $750,000,000 in aggregate principal amount. Under the Indenture we may, without the consent of the holders of the notes, "reopen" the series and issue additional old notes and exchange notes from time to time in the future. The old notes, the exchange notes and any additional notes we may issue in the future upon such a reopening will constitute a single series of debt securities under the Indenture. This means that, in circumstances where the Indenture provides for the holders of debt securities of any series to vote or take any other action as a single class, the old notes and the exchange notes, as well as any additional old notes or exchange notes that we may issue by reopening the series, will vote or take that action as a single class.
The notes are unsecured and unsubordinated obligations of Weyerhaeuser. The notes are not obligations of any of our subsidiaries. See "-- Ranking" below.
The exchange notes will mature on November 1, 2008. Interest on each exchange note will accrue from May 1, 2002 at the rate of 5.95% per annum, payable semi-annually in arrears on May 1 and November 1 of each year to the person in whose name that exchange note is registered at the close of business on the April 15 or October 15, as the case may be, next preceding the applicable payment date. The first interest payment date for the exchange notes will be November 1, 2002 and the interest payable on the exchange notes on that date will be paid to the persons in whose names the exchange notes are registered at the close of business on October 15, 2002. Because the exchange notes will not be issued until after May 1, 2002, holders of the exchange notes will not be entitled to receive the interest payable on the interest payment date falling on May 1, 2002. Instead, interest payable on the interest payment date falling on May 1, 2002 will be payable on the old notes and will be paid to the persons in whose names the old notes are registered at the close of business on April 15, 2002.
Interest on the exchange notes will be computed on the basis of a 360-day year consisting of twelve 30-day months. Holders of old notes that are exchanged for exchange notes pursuant to the exchange offer will not receive accrued interest on those old notes for any period from and after the interest payment date falling on May 1, 2002. See "The Exchange Offer -- Interest on the Exchange Notes."
The exchange notes do not provide for any additional interest to be paid on those notes pursuant to the registration rights agreement.
If an interest payment date, redemption date or maturity date of any exchange note falls on a day that is not a business day, then the payment of principal, premium, if any, or interest, as the case may be, due in respect of that exchange note on that date need not be made on that date, but may be made on the next succeeding business day with the same force and effect as if made on that interest payment date, redemption date or maturity date, as the case may be, and no interest will accrue for the period after that date.
The exchange notes will be issued in fully registered form without coupons in denominations of $1,000 and integral multiples of $1,000. The exchange notes will be denominated and payable in U.S. dollars.
The exchange notes will be issued in book-entry form and will be evidenced by one or more registered global certificates without coupons, which we sometimes refer to as "global exchange notes," registered in the name of Cede & Co., as nominee for DTC. Holders of interests in global exchange notes will not be entitled to receive exchange notes in definitive certificated form, which we sometimes refer to as "certificated exchange notes," registered in their names except in the limited circumstances described below. See "-- Book-Entry; Delivery and Form" for a summary of selected provisions applicable to the depositary arrangements.
Exchange notes in certificated form may be presented for payment and surrendered for registration of transfer and exchange at our agency maintained for that purpose in the Borough of Manhattan, The City of New York, currently the office of the trustee located at 55 Water Street, Second Floor, Room 234 -- North Building, New York, New York 10041. Except as provided under "The Exchange Offer -- Fees and Expenses," holders will not be required to pay any charge for the registration of transfer or exchange of notes, other than any tax or other governmental charge payable in connection with the transfer or exchange, but subject to the limitations provided in the Indenture.
Payment of interest on global exchange notes will be made to DTC or its nominee. Payment of interest on certificated exchange notes, if issued, will be made against presentation of those notes at the agency referred to in the preceding paragraph or, at our option, by mailing checks payable to the persons entitled to that interest to their addresses as they appear in the note register.
The exchange notes will not be entitled to the benefit of any sinking fund and will not be subject to repurchase by us at the option of the holders prior to maturity. Except to the limited extent described below under "Consolidation, Merger, Conveyance or Transfer," the Indenture does not contain any provisions that are intended to protect holders of exchange notes in the event of a highly-leveraged or similar transaction affecting us. The Indenture does not limit the incurrence of debt by us or any of our subsidiaries.
RANKING
The notes are our obligations exclusively and are not be the obligations of any of our subsidiaries. Although we are an operating company and hold many of our assets directly, a portion of our consolidated assets is held by our subsidiaries. Accordingly, our cash flow and the consequent ability to service our debt, including the notes, and to pay amounts due in respect of our other obligations are dependent in part upon the results of operations of our subsidiaries and the distribution of funds by those subsidiaries to us. The ability of our subsidiaries to provide funds to us is contingent upon the results of operations and financial condition of those subsidiaries, may be limited by restrictive covenants in various instruments and agreements and is subject to various other business considerations.
Because a portion of our assets is held by our subsidiaries, our obligations under the notes are effectively subordinated to all existing and future liabilities, including indebtedness, trade payables, guarantees, lease obligations and letter of credit obligations, of our subsidiaries. As a result, our rights and the rights of our creditors, including holders of the notes, to receive assets of any subsidiary upon its liquidation or reorganization are subject to the prior claims of that subsidiary's creditors, except to the extent that we ourselves may be a creditor with recognized claims against that subsidiary, in which case our claims would still be effectively subordinated to any mortgages or other liens on the assets of that subsidiary and would be subordinated to any indebtedness of that subsidiary senior to that held by us. Although some debt instruments to which we and some of our subsidiaries are parties impose limitations on the incurrence of additional indebtedness, both we and our subsidiaries retain the ability to incur substantial additional indebtedness and other liabilities.
As of December 30, 2001, on a pro forma basis after giving effect to the completion of our tender offer for shares of common stock of Willamette, the consummation of the second-step merger pursuant to which Willamette became our wholly-owned subsidiary and related transactions, and the sale of $5.5 billion of debt securities that we issued on March 12, 2002 as described under "Recent Developments -- Sale of $5.5 Billion of Debt Securities" and the incurrence of bank borrowings and the application of the estimated net proceeds from the sale of those debt securities and the proceeds from those borrowings to pay the purchase price of shares of Willamette common stock acquired in the tender offer and the second-step merger and related costs and expenses as if those transactions had occurred as of December 30, 2001:
- we would have had approximately $11.4 billion of indebtedness, calculated on an unconsolidated basis, and
- our subsidiaries would have had approximately $5.3 billion of total liabilities, excluding liabilities to us and other intercompany liabilities.
In addition, at the time of the consummation of the tender offer, we incurred approximately $500 million of additional indebtedness under the Credit Facilities to repay approximately $500 million of Willamette's indebtedness (including approximately $116 million of indebtedness incurred by Willamette subsequent to December 31, 2001). The incurrence of this indebtedness by us and Willamette and the repayment of this indebtedness is not reflected in the pro forma amounts appearing above. Following that repayment, Willamette had outstanding approximately $1.3 billion of indebtedness. We guaranteed most of Willamette's indebtedness, effective upon consummation of the second-step merger.
We plan to merge Willamette Industries, Inc., the Willamette parent company, with and into Weyerhaeuser Company, the Weyerhaeuser parent company, with Weyerhaeuser Company as the surviving corporation, whereupon the separate corporate existence of Willamette Industries, Inc. will cease. See "Recent Developments--Acquisition of Willamette Industries, Inc." Consummation of the parent company merger will require that we take a number of actions and, as a result, we have not yet established a proposed date for completion of the parent company merger nor can we assure you that the parent company merger will be consummated. The remaining Credit Facilities provide that, if the parent company merger is not consummated by March 31, 2003, Willamette Industries, Inc., the Willamette parent company, will be required to guarantee borrowings and other amounts due under the remaining Credit Facilities, in which case it would also be required, under the Indenture, to guarantee the notes and other debt securities outstanding
under the Indenture. However, if Willamette Industries, Inc. guarantees the notes and other debt securities outstanding under the Indenture, that guarantee will terminate upon the earlier of (1) the termination of its guarantee of borrowings under the Credit Facilities and (2) the effectiveness of the parent company merger. Moreover, if the parent company merger is consummated before March 31, 2003, the covenant in the Indenture requiring that Willamette Industries, Inc. guarantee the notes and other debt securities will terminate. Accordingly, we intend to consummate the parent company merger before March 31, 2003. See "-- Possible Guarantee of Debt Securities."
OPTIONAL REDEMPTION
The notes are redeemable, in whole or from time to time in part, at our option on any date at redemption price equal to the greater of:
(1) 100% of the principal amount of the notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the notes to be redeemed (exclusive of interest accrued to the applicable redemption date) discounted to that redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid interest on the principal amount of the notes being redeemed to that redemption date. Notwithstanding the foregoing, 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 businesses on the relevant record dates according to their terms and the terms and provisions of the Indenture.
"Treasury Rate" means, with respect to any redemption date for the notes,
(1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15 (519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Final Maturity Date for the notes, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
The Treasury Rate will be calculated on the third Business Day preceding the applicable redemption date. As used in the immediately preceding sentence and in the definition of "Reference Treasury Dealer Quotations" below, the term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any redemption date for the notes, the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the notes to be redeemed.
"Comparable Treasury Price" means, with respect to any redemption date for the notes, (1) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (2) if the trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means November 1, 2008.
"Independent Investment Banker" means, with respect to any redemption date for the notes, Morgan Stanley & Co. Incorporated and its successors or J.P. Morgan Securities Inc. and its successors, whichever is selected by the trustee after consultation with us, or, if both such firms or the respective successors, if any, to such firms, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the trustee after consultation with us.
"Reference Treasury Dealer" means, with respect to any redemption date for the notes, Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. and their respective successors (provided, however, that if any such firm or any such successor, as the case may be, ceases to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the trustee, after consultation with us, will substitute therefor another Primary Treasury Dealer), and two other Primary Treasury Dealers selected by the trustee after consultation with us.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date for the notes, the average, as determined by the trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the trustee by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of the notes to be redeemed at the holder's registered address. If less than all the notes are to be redeemed at our option, the trustee will select, in a manner it deems fair and appropriate, the notes, or portions of the notes, to be redeemed.
Unless we default in payment of the redemption price, on and after the redemption date interest will cease to accrue on the notes or portions of notes called for redemption on that redemption date.
CERTAIN RESTRICTIONS
The following restrictions apply to the notes and to each other series of debt securities issued under the Indenture, unless the terms of any such other series of debt securities provide otherwise.
Limitation on Liens. The Indenture states that, unless the terms of any series of debt securities provide otherwise, if Weyerhaeuser or any Subsidiary, as defined in the Indenture, issues, assumes or guarantees any indebtedness for money borrowed ("Debt") secured by a mortgage, pledge, security interest or other lien (collectively, a "Mortgage") on:
- any timber or timberlands of Weyerhaeuser or that Subsidiary located in the states of Washington, Oregon, California, Arkansas or Oklahoma, or
- any principal manufacturing plant of Weyerhaeuser or that Subsidiary located anywhere in the United States,
Weyerhaeuser must secure or cause that Subsidiary to secure the debt securities (together with, if Weyerhaeuser so determines, any other indebtedness of or guaranteed by Weyerhaeuser or that Subsidiary ranking equally with the debt securities and then existing or created later) equally and ratably with, or prior to, that Debt. Notwithstanding the restrictions described in the preceding sentence, Weyerhaeuser or any Subsidiary may issue, assume or guarantee secured Debt that would otherwise be subject to those restrictions in an aggregate amount that, together with:
- all other such Debt of Weyerhaeuser and its Subsidiaries, and
- all Attributable Debt, as defined in the Indenture, in respect of Sale and Lease-Back Transactions, as defined below, existing at that time, other than Sale and Lease-Back Transactions permitted because Weyerhaeuser would be entitled to incur Debt secured by a Mortgage on the property to be leased without equally and ratably securing the debt securities pursuant to provisions described elsewhere under this caption "-- Limitation on Liens" and other than Sale and Leaseback Transactions the proceeds of which have been applied in accordance with clause (b) of the second paragraph under "-- Limitation on Sale Lease-Back Transactions" below,
does not exceed 5% of the shareholders' interest in Weyerhaeuser and its consolidated Subsidiaries, as defined in the Indenture, as shown on the audited consolidated balance sheet contained in Weyerhaeuser's latest annual report to shareholders.
The term "principal manufacturing plant" does not include any manufacturing plant that in the opinion of the Board of Directors is not a principal manufacturing plant of Weyerhaeuser and its Subsidiaries. The exercise of the Board of Directors' discretion in determining which plants are "principal manufacturing plants" could have the effect of limiting the application of the limitation on liens.
The following types of transactions are not deemed to create Debt secured by a Mortgage:
- the sale, Mortgage or other transfer of timber in connection with an arrangement under which Weyerhaeuser or a Subsidiary is obligated to cut some or all of that timber to provide the transferee with a specified amount of money however determined; and
- the Mortgage of any property of Weyerhaeuser or any Subsidiary in favor of the United States or any State, or any department, agency or instrumentality of either, to secure any payments to Weyerhaeuser or any Subsidiary pursuant to any contract or statute.
The limitation on liens covenant will not apply to:
(a) Mortgages securing Debt of a Subsidiary to Weyerhaeuser or another Subsidiary;
(b) Mortgages created, incurred or assumed contemporaneously with, or within 90 days after, the acquisition, improvement or construction of the mortgaged property to secure or provide for the payment of any part of the purchase price of that property or the cost of that construction or improvement, provided that, in the case of construction or improvement, the Mortgage does not apply to any property previously owned by Weyerhaeuser or any Subsidiary other than unimproved real property on which the property so constructed, or the improvement, is located;
(c) Mortgages existing at the time of acquisition of the mortgaged property; or
(d) any extension, renewal or replacement of any Mortgage described in
(b) or (c) above so long as the principal amount of the secured
indebtedness is not increased and the extension, renewal or replacement is
limited to all or part of the same property secured by the Mortgage so
extended, renewed or replaced. (Section 3.6)
Limitation on Sale and Lease-Back Transactions. The Indenture states that, unless the terms of any series of debt securities provide otherwise, neither Weyerhaeuser nor any Subsidiary may lease any real property in the United States, except for temporary leases for a term of not more than three years, which property has been or is to be sold or transferred by Weyerhaeuser or that Subsidiary to the lessor (a "Sale and Lease-Back Transaction").
This limitation will not apply to any Sale and Lease-Back Transaction if:
(a) Weyerhaeuser or the applicable Subsidiary would be entitled to incur Debt secured by a Mortgage on the leased property without equally and ratably securing the debt securities as described under "-- Limitation on Liens" above, or
(b) Weyerhaeuser, within 90 days of the effective date of the Sale and Lease-Back Transaction, applies an amount equal to the fair value, as determined by the Board of Directors, of the leased property
to the retirement of Debt that matures at, or is extendable or renewable at the option of the obligor to, a date more than 12 months after the date of the creation of that Debt. (Section 3.7)
POSSIBLE GUARANTEE OF DEBT SECURITIES
The following covenants apply to the notes and to each other series of debt securities currently outstanding under the Indenture and will apply to each other series of debt securities which may be issued under the Indenture in the future unless the terms of any such future series of debt securities provide otherwise.
Covenant to Provide Guarantee; Termination of Guarantee. The Indenture provides that, unless the terms of any series of debt securities provide otherwise, Weyerhaeuser will not cause or permit Willamette to guarantee, directly or indirectly (a "Bank Guarantee"), any indebtedness, borrowings or other obligations of Weyerhaeuser under any Credit Agreement, as defined below, unless:
(1) Willamette, Weyerhaeuser and the trustee shall execute and deliver a supplemental indenture pursuant to which Willamette shall unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest on, and any sinking fund payments with respect to, all of the debt securities when due, whether such debt securities are outstanding on the date of such supplemental indenture or are thereafter issued (other than any debt securities of a series the terms of which expressly provide that the debt securities of such series are not entitled to the benefits of this covenant), and
(2) such supplemental indenture shall have been executed and delivered by Willamette, Weyerhaeuser and the trustee and shall have become effective no later than the time that such Bank Guarantee of Willamette shall become effective;
provided that Weyerhaeuser will not be required to make a notation on the debt securities of any series to reflect the Guarantee or to endorse the Guarantee on the debt securities of any series if the debt securities of that series were originally issued prior to the date of the supplemental indenture referred to in clause (2) above; and provided, further, that, upon the earlier of (a) termination of all of Willamette's Bank Guarantees and (b)(i) the effectiveness of the Weyerhaeuser/Willamette Merger and (ii) the termination of the separate corporate existence of Willamette as a result of such merger, and, in the case of both clause (a) and (b), delivery by Weyerhaeuser to the trustee of the officers' certificate and opinion of counsel required by the Indenture (including an opinion of counsel to the effect any Bank Guarantees provided by Willamette have terminated), Willamette shall be released from all of its obligations under the Indenture (including the applicable supplemental indenture) and the Guarantee and the Guarantee shall terminate (provided that Weyerhaeuser's obligations under this paragraph shall remain in effect, and, as a result, Willamette and Weyerhaeuser may thereafter be required to enter into another supplemental indenture as set forth above, unless and until Weyerhaeuser's obligations under this paragraph shall be terminated as described in the following paragraph).
The Indenture further provides that the covenant described in the immediately preceding paragraph shall terminate upon (a) the effectiveness of the Weyerhaeuser/Willamette Merger and (b) the termination of the separate corporate existence of Willamette as a result of such merger; provided that Weyerhaeuser shall have delivered to the trustee the officers' certificate and opinion of counsel required by the Indenture (including, in the event that Willamette shall have provided one or more Bank Guarantees, an opinion of counsel to the effect that such Bank Guarantees have terminated).
The Indenture further provides that, in the event that the covenant to provide a Willamette Guarantee as described in the second preceding paragraph is terminated pursuant to the provisions described in the immediately preceding paragraph and, thereafter, the Weyerhaeuser/Willamette Merger is set aside or reversed or the separate corporate existence of Willamette is reinstated, then, to the fullest extent permitted by applicable law,
(1) such covenant shall be automatically reinstated, and
(2) if Willamette shall have been released from its obligations under the Indenture and the Guarantee with respect to the debt securities of any series upon the effectiveness of the Weyerhaeuser/Willamette Merger, Willamette's obligations under the Indenture (including
any applicable supplemental indenture) and the Guarantee with respect to the debt securities of such series shall be automatically reinstated,
all as if the Weyerhaeuser/Willamette Merger had not taken place but subject thereafter to termination of such covenant upon the terms and conditions set forth in the immediately preceding paragraph and to the release of Willamette's obligations under the Indenture (including any applicable supplemental indenture) and the Guarantee upon the terms and conditions set forth in the second preceding paragraph. The Indenture also provides that, if Willamette's obligations under the Indenture are reinstated as described in the preceding sentence, then the additional Events of Default described below under "-- Covenant to Provide Additional Events of Default" and specified related provisions of the Indenture shall also be reinstated, but subject thereafter to termination of such Events of Default and those related provisions upon the terms and conditions set forth under "-- Covenant to Provide Additional Events of Default."
In the event that Willamette and Weyerhaeuser enter into the supplemental indenture described above, that supplemental indenture will expressly provide that the obligations of Willamette under its Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of Willamette, result in the obligations of Willamette under the Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable federal or state law.
The remaining Credit Agreements provide that, if Willamette is not merged
into Weyerhaeuser by March 31, 2003, Willamette will be required to guarantee
borrowings and other amounts due under the remaining Credit Agreements, in which
case Willamette would also be required, under the Indenture, to guarantee the
notes and other debt securities outstanding under the Indenture. See "Recent
Developments -- Acquisition of Willamette Industries, Inc." However, any
guarantee of notes or other debt securities by Willamette will terminate upon
the earlier of (a) termination of its guarantee under the Credit Agreements and
(b) the effectiveness of the Weyerhaeuser/Willamette Merger, subject to
satisfaction of the other conditions specified in the Indenture. Moreover,
Weyerhaeuser intends to consummate the parent company merger prior to March 31,
2003 and, if the parent company merger is consummated prior to that date, the
covenant in the Indenture requiring that Willamette guarantee the notes and
other debt securities will terminate, subject to satisfaction of the other
conditions specified in the Indenture.
The Indenture also provides that, if Weyerhaeuser is discharged from its obligations in respect of the outstanding debt securities of any series pursuant to the provisions in the Indenture relating to defeasance or satisfaction and discharge, then, unless the terms of the debt securities of that series expressly provide otherwise, Willamette concurrently shall be released, automatically and without further action on the part of Weyerhaeuser, Willamette or the trustee, from all of Willamette's obligations under the Indenture (including any applicable supplemental indenture) with respect to the debt securities of that series and from all of its obligations under its Guarantee with respect to the debt securities of that series; provided that such release shall not affect Willamette's obligations under the Indenture with respect to the debt securities of any other series or its Guarantee of the debt securities of any other series, all of which shall remain in full force and effect.
The Indenture provides that, if Willamette enters into a supplemental indenture providing a Guarantee of debt securities, the supplemental indenture also will provide that, if Weyerhaeuser shall have agreed pursuant to a registration rights agreement or other similar instrument or agreement to pay additional interest or to make similar payments with respect to the debt securities of any series, then Willamette's Guarantee, if any, of the debt securities of that series shall also be deemed to guarantee the due and punctual payment of such additional interest or other similar payments, as the case may be, on the same terms and subject to the same conditions as the guarantee of interest on the debt securities of that series.
Covenant to Provide Additional Events of Default. The Indenture provides that, in the event that Willamette enters into a supplemental indenture providing a Guarantee of debt securities, the supplemental indenture will also provide for the following to be added as Events of Default under the Indenture. See "--Events of Default" below. If and when this occurs, the Indenture will provide that, in addition to the other
Events of Default appearing therein, an Event of Default will occur under the Indenture with respect to any series of debt securities if:
(1) Willamette shall deny that it has any further liability under its Guarantee of all or any of the debt securities of such series or gives notice to that effect or Willamette's Guarantee of all or any of the debt securities of such series shall cease for any reason to be in full force and effect or Willamette's Guarantee of all or any of the debt securities of such series is declared or judged unenforceable or invalid in a final judgment or order issued by any court or governmental authority of competent jurisdiction (in each case other than by reason of the termination or release of such Guarantee in accordance with the provisions described above under "--Covenant to Provide Guarantee; Termination of Guarantee"), provided that this clause (1) shall not be applicable to the debt securities of such series if the terms of the debt securities of such series expressly provide that the debt securities of such series are not entitled to the benefit of the covenant described above in the first paragraph under "--Covenant to Provide Guarantee; Termination of Guarantee;" or
(2) specified events of bankruptcy, insolvency or reorganization have occurred and are continuing with respect to Willamette, provided that this clause (2) shall not be applicable to the debt securities of such series if the terms of the debt securities of such series expressly provide that the debt securities of such series are not entitled to the benefit of the covenant described above in the first paragraph under "--Covenant to Provide Guarantee; Termination of Guarantee".
The Indenture further provides that, if Willamette is released from its obligations under the Indenture with respect to the debt securities of any series and from its obligations under its Guarantee with respect to the debt securities of that series as described above under "-- Covenant To Provide Guarantee; Termination of Guarantee," then, automatically and without further action on the part of Weyerhaeuser, Willamette or the trustee, the foregoing additional Events of Default shall cease to be effective with respect to the debt securities of that series (provided that such cessation shall not affect such Events of Default insofar as they pertain to any other series of debt securities), and, if the covenant described above in the first paragraph under the caption "--Covenant to Provide Guarantee; Termination of Guarantee" shall terminate as provided in the second paragraph under that caption, then, automatically and without further action on the part of Weyerhaeuser, Willamette or the trustee, the foregoing additional Events of Default, the parenthetical clause appearing in subparagraph (d) in the first paragraph under "-- Events of Default" below and the modifications to the Indenture described in the third paragraph under "-- Events of Default" below shall terminate and cease to be effective as to all series of debt securities, but subject to reinstatement of such Events of Default, parenthetical clause and modifications upon the terms and conditions specified in the third paragraph under the caption "-- Covenant to Provide Guarantee; Termination of Guarantee."
Definitions
The following definitions appear in the Indenture. As described under "Recent Developments -- Acquisition of Willamette Industries, Inc.," the bridge revolving credit facility referred to in the definition of "Credit Agreements" has been terminated.
"Credit Agreements" means:
(1) the 364-Day Revolving Credit Facility Agreement dated as of February 8, 2002 among Weyerhaeuser Company, Weyerhaeuser Real Estate Company, the lenders named therein and the other parties thereto and any related notes, letters of credit and guarantees,
(2) the Competitive Advance and Revolving Credit Facility Agreement dated as of February 8, 2002 among Weyerhaeuser Company, the lenders, swingline bank and fronting bank named therein and the other parties thereto, and any related notes, letters of credit and guarantees, and
(3) the Bridge Revolving Credit Facility Agreement dated as of February 8, 2002 among Weyerhaeuser Company, the lenders named therein and the other parties thereto and any related notes, letters of credit and guarantees,
in each case as the same may be amended, modified, supplemented or restated or refunded, refinanced, restructured, replaced, renewed, repaid or extended from time to time (whether with the original agents, lenders and other parties thereto or other agents, lenders or other parties thereto and whether under the original such Credit Agreement or any other credit agreements or otherwise), and including any of the foregoing that shall extend the maturity or increase the amount of borrowings or available borrowings thereunder.
"Guarantee" means Willamette's guarantee set forth in a supplemental indenture executed pursuant to the covenant described in the first paragraph above under "-- Covenant to Provide Guarantee; Termination of Guarantee" and any guarantee of a debt security by Willamette that is endorsed on a debt security authenticated and made available for delivery pursuant to the Indenture, collectively, or all or any such guarantees, as the context shall require.
"Weyerhaeuser/Willamette Merger" means a statutory merger pursuant to which Willamette shall be merged with and into Weyerhaeuser, with Weyerhaeuser being the surviving corporation and whereupon the separate corporate existence of Willamette shall cease.
"Willamette" means Willamette Industries, Inc., an Oregon corporation.
Fraudulent Conveyance and Similar Considerations. In the event that Willamette enters into a supplemental indenture providing its Guarantee, its obligations under the Guarantee may be subject to review under various laws for the protection of creditors, including federal and state fraudulent conveyance and fraudulent transfer laws, if a bankruptcy case or other lawsuit, including in circumstances where bankruptcy is not involved, is commenced by or on behalf of any creditor of Willamette or a representative of any of its creditors. If a court in that case or lawsuit were to find that, at the time Willamette entered into the supplemental indenture, Willamette
(a) intended to hinder, delay or defraud any existing or future creditor or
(b) did not receive fair consideration or reasonably equivalent value for issuing its Guarantee, including because the Guarantee was incurred for the benefit of Weyerhaeuser and only indirectly for the benefit of Willamette,
and that Willamette either
(1) was insolvent or rendered insolvent by reason of its Guarantee,
(2) was engaged or was about to engage in a business or transaction for which its remaining unencumbered assets constituted unreasonably small capital, or
(3) intended to or believed that it would incur debts beyond its ability to pay its debts as they matured or became due,
the court could void Willamette's obligations under its Guarantee, subordinate that Guarantee to other indebtedness of Willamette, direct that holders of debt securities return any amounts paid under that Guarantee to Willamette or to a fund for the benefit of its creditors, or take other action detrimental to the holders of the debt securities.
The measure of insolvency for purposes of the matters described in the preceding paragraph will vary depending upon the law of the jurisdiction being applied. Generally, however, a company will be considered insolvent at a particular time if the sum of its debts, including contingent liabilities, at that time is greater than the then fair value of its assets or if the fair saleable value of its assets at that time is less than the amount that would be required to pay its probable liability on its existing debts as they become absolute and mature. There can be no assurance, however, as to what standard a court would apply to evaluate the parties' intent or to determine whether Willamette was insolvent at the time of or rendered insolvent by providing its Guarantee or that, regardless of the standard, a court would not determine that Willamette was insolvent at the time of or rendered insolvent by providing its Guarantee.
As described above, the applicable supplemental indenture will provide that the obligations of Willamette under its Guarantee will be limited to the maximum amount that will result in the obligations of Willamette under its Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable federal or state law. However, there can be no assurance that, notwithstanding this limitation, a court would not find that the Guarantee violated applicable fraudulent conveyance or fraudulent transfer laws.
If a bankruptcy or insolvency proceeding were commenced with respect to Willamette, a court might also find that its Guarantee constituted a preferential transfer under federal bankruptcy laws because, among other things, it was provided in respect of a pre-existing debt. If the Guarantee were determined to constitute a preferential transfer and if the Guarantee was entered into within 90 days, or possibly one year, prior to the commencement of the bankruptcy or insolvency proceedings with respect to Willamette, the court could void Willamette's obligations under its Guarantee, direct that holders of debt securities return any amounts paid under that Guarantee to Willamette or to a fund for the benefit of its creditors, or take other actions detrimental to the holders of the debt securities.
EVENTS OF DEFAULT
An Event of Default will occur under the Indenture with respect to any series of debt securities if:
(a) Weyerhaeuser fails to pay when due any installment of interest on any of the debt securities of that series and that default continues for 30 days,
(b) Weyerhaeuser fails to pay when due all or any part of the principal of and premium, if any, on any of the debt securities of that series, whether at maturity, upon redemption, upon acceleration or otherwise,
(c) Weyerhaeuser fails to deposit any sinking fund payment when due on any of the debt securities of that series,
(d) Weyerhaeuser defaults in the performance of, or breaches, any other covenant or warranty in respect of the debt securities of that series and that default or breach continues for 90 days (or 10 days in the case of the covenant described above under "-- Possible Guarantee of Debt Securities," unless this parenthetical clause shall have been terminated pursuant to the provisions described above under the caption "-- Possible Guarantee of Debt Securities -- Covenant to Provide Additional Events of Default," in which case this parenthetical clause shall cease to be effective for all purposes of the Indenture, or unless the terms of the debt securities of such series expressly provide that the debt securities of such series are not entitled to the benefit of the covenant described in the first paragraph under the caption the caption "-- Possible Guarantee of Debt Securities -- Covenant to Provide Guarantee; Termination of Guarantee," in which case this parenthetical clause shall not be applicable to the debt securities of such series) after written notice by the trustee or the holders of at least 25% in principal amount of the outstanding debt securities of all series affected by that default or breach, or
(e) specified events of bankruptcy, insolvency or reorganization with respect to Weyerhaeuser have occurred and are continuing. (Section 5.1)
If an Event of Default due to the failure to pay the principal of, or any
premium, interest or sinking fund payment, if any, on, any series of debt
securities or the breach of any other covenant or warranty of Weyerhaeuser
applicable to less than all series of debt securities then outstanding has
occurred and is continuing, either the trustee or the holders of 25% in
principal amount of the debt securities of such series then outstanding, each
such series voting as a separate class, may declare the principal of and accrued
interest on all the debt securities of such series to be due and payable
immediately. If an Event of Default due to a default in performance of any other
covenant or agreement in the Indenture applicable to all outstanding debt
securities or due to certain events of bankruptcy, insolvency or reorganization
of Weyerhaeuser has occurred and is continuing, either the trustee or the
holders of 25% in principal amount of all debt securities then outstanding,
treated as one class, may declare the principal of and accrued interest on all
the debt securities to be due and payable immediately. The holders of a majority
in principal amount of the debt securities of such series (or of all series, as
the case may be) then outstanding may waive all defaults with respect to such
series
(or with respect to all series, as the case may be) and rescind a declaration of acceleration if, prior to the entry of a judgment or decree with respect to that acceleration, Weyerhaeuser pays or deposits with the trustee a sum sufficient to pay all matured installments of interest on the outstanding debt securities of such series (or of all the debt securities, as the case may be) and the principal of all debt securities of such series (or of all the debt securities, as the case may be) that have become due otherwise than by acceleration and other expenses specified in the Indenture, and if all other Events of Default under the Indenture have been cured, waived or otherwise remedied as permitted by the Indenture. In addition, prior to the declaration of the acceleration of the maturity of the debt securities of any series, the holders of a majority in aggregate principal amount of the outstanding debt securities of such series (or of all series, as the case may be) may waive any past default or Event of Default, except a continuing default in payment of principal of or premium, if any, or interest, if any, on the debt securities and except a default in respect of a covenant or provision which cannot be modified or amended without the consent of the holder of each debt security affected. (Sections 5.1 and 5.10)
As described above under "-- Possible Guarantee of Debt Securities," Weyerhaeuser and Willamette may, under specified circumstances, enter into a supplemental indenture that will, among other things, add additional Events of Default to the Indenture. If that occurs, that supplemental indenture will make appropriate modifications to the provisions of the Indenture described in the preceding paragraph so that, if an Event of Default of the nature described in clause (1) or (2) under the caption "-- Possible Guarantee of Debt Securities -- Covenant to Provide Additional Events of Defaults" (if the Event of Default of the nature described in clause (1) or (2), as the case may be, under that caption is with respect to less than all series of debt securities then outstanding) has occurred and is continuing with respect to the debt securities of any series, then the trustee or the holders of 25% in principal amount of the debt securities of such series then outstanding, each such series voting as a separate class, may declare the principal of and accrued interest on all the debt securities of such series to be due and payable as described above. That supplemental indenture will also make appropriate modifications to the provisions of Indenture described in the preceding paragraph so that, if an Event of Default of the nature described in clause (1) or (2) under the caption "-- Possible Guarantee of Debt Securities -- Covenant to Provide Additional Events of Default" (if the Event of Default of the nature described in such clause (1) or (2), as the case may be, is with respect to all series of debt securities then outstanding) has occurred and is continuing, then the trustee or the holders of 25% in principal amount of all debt securities then outstanding, treated as one class, may declare the principal of and accrued interest on all the debt securities to be due and payable as described above. These modifications will be subject to termination and reinstatement as described under "-- Possible Guarantee of Debt Securities."
The holders of a majority in principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee, provided that the direction is in accordance with law and the provisions of the Indenture and subject to exceptions provided in the Indenture. (Section 5.9) Before proceeding to exercise any right or power under the Indenture at the direction of a holder or holders, the trustee is entitled to receive from that holder or holders reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with that direction. (Section 6.2)
Weyerhaeuser is required to furnish to the trustee annually a statement of two of its officers to the effect that, to their knowledge, Weyerhaeuser is not in default in the performance of the terms of the Indenture or, if they have knowledge that Weyerhaeuser is in default, specifying the default. (Section 3.5)
The Indenture requires the trustee to give to all holders of outstanding debt securities of any series notice of any default by Weyerhaeuser with respect to that series, unless that default has been cured or waived. However, except in the case of a default in the payment of principal of or premium, if any, or interest, if any, on any outstanding debt securities of that series, the trustee is entitled to withhold that notice in the event that the board of directors, the executive committee or a trust committee of directors, trustees or specified officers of the trustee in good faith determine that withholding that notice is in the interest of the holders of the outstanding debt securities of that series. (Section 5.11)
DEFEASANCE AND DISCHARGE
The following defeasance provisions apply to the notes and to each other series of debt securities issued under the Indenture, unless the terms of any such other series of debt securities provide otherwise.
The Indenture provides that, unless the terms of any series of debt securities provide otherwise, Weyerhaeuser will be discharged from its obligations in respect of the Indenture and the outstanding debt securities of that series, including its obligation to comply with the provisions referred to above under "--Certain Restrictions" and "--Possible Guarantee of Debt Securities," if applicable, but excluding other specified provisions of the Indenture, such as the right of holders of debt securities of that series to receive payments of principal and interest, if any, on the original stated due dates (but not upon acceleration), and obligations to register the transfer of or exchange outstanding debt securities of that series and to replace stolen, lost or mutilated certificates. In order to be discharged from its obligations with respect to the outstanding debt securities of any series, Weyerhaeuser must, among other things:
- irrevocably deposit in trust cash, or U.S. Government Obligations, as defined in the Indenture, which through the payment of interest and principal in accordance with their terms will provide cash, in an amount sufficient to pay the principal of (and premium, if any) and interest, if any, on and mandatory sinking fund payments, if any, in respect of the outstanding debt securities of the applicable series when those payments are due in accordance with the terms of the Indenture and those debt securities, and
- deliver to the trustee an officers' certificate or an opinion of counsel to the effect that Weyerhaeuser has received from, or there has been published by, the Internal Revenue Service a ruling to the effect that the discharge will not be a taxable event with respect to holders of the outstanding debt securities of that series. (Section 10.1)
In the event that Weyerhaeuser is discharged, as described above, from its obligations in respect to the outstanding debt securities of any series that are guaranteed by Willamette, then Willamette will be concurrently released from its obligations under its Guarantee of the debt securities of that series. See "--Possible Guarantee of Debt Securities" above.
MODIFICATION OF THE INDENTURE
The Indenture provides that Weyerhaeuser and the trustee may enter into supplemental indentures without the consent of the holders of debt securities to, among other things:
- secure any debt securities,
- evidence the assumption by a successor person of Weyerhaeuser's obligations under the Indenture and the debt securities,
- add covenants for the protection of the holders of debt securities,
- cure any ambiguity or correct any inconsistency in the Indenture or to make other changes the Board of Directors deems desirable, so long as none of those actions adversely affects the interests of the holders of debt securities,
- establish the form or terms of the debt securities of any series, and
- evidence the acceptance of the appointment by a successor trustee.
(Section 8.1)
The Indenture also contains provisions permitting Weyerhaeuser and the trustee, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of all series affected, voting as one class, to add any provisions to, or change in any manner or eliminate any of the provisions of, the Indenture or modify in any manner the rights of the holders of the debt securities of each series so affected. However, Weyerhaeuser may not, without the consent of the holder of each outstanding debt security so affected:
- extend the final maturity of any debt security,
- reduce the principal amount of any debt security,
- reduce the rate or extend the time of payment of interest on any debt security,
- reduce any amount payable on redemption of any debt security,
- impair the right of any holder of debt securities to institute suit for the payment of any debt security, or
- reduce the percentage in principal amount of debt securities of any series the consent of the holders of which is required for any such modification. (Section 8.2)
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Weyerhaeuser may, without the consent of the trustee or the holders of debt securities, consolidate or merge with, or convey, transfer or lease all or substantially all of its assets to, any other entity, provided that any successor must be an entity organized under the laws of the United States of America or any state and must expressly assume all obligations of Weyerhaeuser under the debt securities and that other conditions are met. Following a transfer or other conveyance, except by lease, of all or substantially all of Weyerhaeuser's assets, Weyerhaeuser will be relieved of all obligations under the Indenture and the debt securities. (Article Nine)
BOOK-ENTRY; DELIVERY AND FORM
The global exchange notes will be deposited with, or on behalf of, a custodian for DTC and registered in the name of Cede & Co., as nominee of DTC. Accordingly, holders that are not direct DTC participants, as defined below, but who wish to receive exchange notes in this exchange offer or who otherwise wish to acquire exchange notes may do so only indirectly through DTC's direct and indirect participants, including Euroclear Bank S.A./N.V., as operator of the Euroclear System ("Euroclear"), and Clearstream Banking, societe anonyme ("Clearstream Luxembourg"). Except under the limited circumstances described below, global exchange notes may be transferred, in whole and not in part, solely to DTC or another nominee of DTC or to a successor of DTC or its nominee and beneficial interests in the global exchange notes may not be exchanged for certificated exchange notes.
The descriptions of the operations and procedures of DTC, Euroclear and Clearstream Luxembourg set forth below are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to change by them from time to time. We take no responsibility for these operations or procedures, and investors are urged to contact the relevant system or its participants directly to discuss these matters.
DTC has advised us that it is:
- a limited-purpose trust company organized under the laws of the State of New York;
- a "banking organization" within the meaning of the New York Banking Law;
- a member of the Federal Reserve System;
- a "clearing corporation" within the meaning of the New York Uniform Commercial Code, as amended; and
- a "clearing agency" registered pursuant to Section 17A of the Securities Exchange Act.
DTC was created to hold securities for its participants (collectively, the "participants") and to facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes to the accounts of its participants, thereby eliminating the need for physical transfer and delivery of certificates. DTC's participants include securities brokers and dealers, banks and trust companies, clearing corporations and certain other organizations. Indirect access to DTC's system is also available to other entities such as banks, brokers, dealers and trust companies (collectively, the "indirect participants") that clear through or maintain a custodial relationship with a participant, either directly or indirectly. Investors who are
not participants may beneficially own securities held by or on behalf of DTC only through participants or indirect participants.
We expect that, pursuant to procedures established by DTC:
- upon deposit of each global exchange note, DTC will credit, on its book-entry registration and transfer system, the accounts of participants with an interest in the global exchange note, and
- ownership of beneficial interests in the global exchange notes will be shown on, and the transfer of ownership interests in the global exchange notes will be effected only through, records maintained by DTC (with respect to the interests of participants) and the participants and the indirect participants (with respect to the interests of persons other than participants).
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of those securities in definitive form. Accordingly, the ability to transfer beneficial interests in the exchange notes represented by a global exchange note to those persons may be limited. In addition, because DTC can act only on behalf of its participants, who in turn act on behalf of persons who hold interests through participants, the ability of person holding a beneficial interest in a global exchange note to pledge or transfer that interest to persons or entities that do not participate in DTC's system, or to otherwise take actions in respect of that interest, may be affected by the lack of a physical security in respect of that interest.
So long as DTC or its nominee is the registered owner of a global exchange note, DTC or that nominee, as the case may be, will be considered the sole legal owner or holder of the exchange notes represented by that global exchange note for all purposes of the exchange notes and the Indenture. Except as provided below, owners of beneficial interests in a global exchange note will not be entitled to have the exchange notes represented by that global exchange note registered in their names, will not receive or be entitled to receive physical delivery of certificated exchange notes, and will not be considered the owners or holders of the exchange notes represented by that beneficial interest under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the trustee. Accordingly, each holder owning a beneficial interest in a global exchange note must rely on the procedures of DTC and, if that holder is not a participant or an indirect participant, on the procedures of the participant through which that holder owns its interest, to exercise any rights of a holder of exchange notes under the Indenture or that global exchange note. We understand that under existing industry practice, in the event that we request any action of holders of exchange notes, or a holder that is an owner of a beneficial interest in a global exchange note desires to take any action that DTC, as the holder of that global exchange note, is entitled to take, DTC would authorize the participants to take that action and the participants would authorize holders owning through those participants to take that action or would otherwise act upon the instruction of those holders. Neither we nor the trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of exchange notes by DTC, or for maintaining, supervising or reviewing any records of DTC relating to the exchange notes.
Payments with respect to the principal of and premium, if any, and interest on a global exchange note will be payable by the trustee to or at the direction of DTC or its nominee in its capacity as the registered holder of the global exchange note under the Indenture. Under the terms of the Indenture, we and the trustee may treat the persons in whose names the exchange notes, including the global exchange notes, are registered as the owners thereof for the purpose of receiving payment thereon and for any and all other purposes whatsoever. Accordingly, neither we nor the trustee has or will have any responsibility or liability for the payment of those amounts to owners of beneficial interests in a global exchange note. Payments by the participants and the indirect participants to the owners of beneficial interests in a global exchange note will be governed by standing instructions and customary industry practice and will be the responsibility of the participants and indirect participants and not of DTC.
Transfers between participants in DTC will be effected in accordance with DTC's procedures, and will be settled in same-day funds. Transfers between participants in Euroclear or Clearstream Luxembourg will be effected in the ordinary way in accordance with their respective rules and operating procedures.
Cross-market transfers between the participants in DTC, on the one hand, and Euroclear or Clearstream Luxembourg participants, on the other hand, will be effected through DTC in accordance with DTC's rules on behalf of Euroclear or Clearstream Luxembourg, as the case may be, by its respective depositary; however, those cross-market transactions will require delivery of instructions to Euroclear or Clearstream Luxembourg, as the case may be, by the counterparty in that system in accordance with the rules and procedures and within the established deadlines (Brussels time) of that system. Euroclear or Clearstream Luxembourg, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositary to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant global exchange notes in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream Luxembourg participants may not deliver instructions directly to the depositaries for Euroclear or Clearstream Luxembourg.
Because of time zone differences, the securities account of a Euroclear or Clearstream Luxembourg participant purchasing an interest in a global exchange note from a participant in DTC will be credited, and any such crediting will be reported to the relevant Euroclear or Clearstream Luxembourg participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream Luxembourg) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream Luxembourg as a result of sales of interest in a global exchange note by or through a Euroclear or Clearstream Luxembourg participant to a participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream Luxembourg cash account only as of the business day for Euroclear or Clearstream Luxembourg following DTC's settlement date.
Although DTC, Euroclear and Clearstream Luxembourg have agreed to the foregoing procedures to facilitate transfers of interests in the global exchange notes among participants in DTC, Euroclear and Clearstream Luxembourg, they are under no obligation to perform or to continue to perform those procedures, and those procedures may be discontinued at any time. Neither we nor the trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream Luxembourg or their respective participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
We obtained the information in this section and elsewhere in this prospectus concerning DTC, Euroclear and Clearstream Luxembourg and their respective book-entry systems from sources that we believe are reliable, but we take no responsibility for the accuracy of any of this information.
CERTIFICATED NOTES
As described above, beneficial interests in the global exchange notes may not be exchanged for certificated exchange notes. However, the Indenture provides that if:
- the depositary for the global exchange notes and for any global certificates representing old notes in book-entry form (the "global old notes" and, together with the global exchange notes, the "global notes") notifies us that it is unwilling or unable to continue as depositary for the global notes or the depositary for the global notes is no longer eligible or in good standing under the Securities Exchange Act or other applicable statute or regulation and we do not appoint a successor depositary within 90 days after we receive that notice or become aware of that ineligibility;
- we in our sole discretion determine that the notes will no longer be represented by global notes; or
- an Event of Default with respect to the notes has occurred and is continuing,
we will execute and the trustee will authenticate and deliver notes in definitive certificated form ("certificated notes") in exchange for interests in the global notes. In that event, only certificated exchange notes will be issued in exchange for interests in global exchange notes and only old notes in definitive certificated form will be issued in exchange for interests in global old notes. We anticipate that those certificated notes will be registered in such name or names as DTC instructs the trustee and that those instructions will be based upon directions received by DTC from its participants with respect to ownership of beneficial interest in the global notes. Neither we nor the trustee shall be liable for any delay by DTC or any participant or indirect participant
in identifying the beneficial owners of the related notes and each of them may conclusively rely on, and will be protected in relying on, instructions from DTC for all purposes, including with respect to the registration and delivery, and the respective principal amounts, of the certificated notes to be issued.
SAME-DAY SETTLEMENT AND PAYMENT
So long as DTC continues to make its settlement system available to us, all payments of principal of and premium, if any, and interest on the global exchange notes will be made by us in immediately available funds.
APPLICABLE LAW
The notes and the indenture are governed by and construed in accordance with the laws of the State of New York. (Section 11.8)
TRUSTEE
JPMorgan Chase Bank is the trustee under the Indenture and is also the exchange agent for the exchange offer. In the ordinary course of business, the trustee and its affiliates have provided and may in the future continue to provide investment banking, commercial banking and other financial services to us and our subsidiaries for which they have received and will receive compensation.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary describes some of the material United States federal income tax consequences of the exchange of old notes for exchange notes and the ownership and disposition of the exchange notes. There can be no assurance that the U.S. Internal Revenue Service, or the "IRS," will take a similar view of the purchase, ownership or disposition of the exchange notes. The discussion below is based on the Internal Revenue Code of 1986, as amended, or the "Code," administrative pronouncements, judicial decisions, and existing and proposed Treasury regulations, and interpretations of the foregoing, changes to any of which subsequent to the date of this prospectus may affect the tax consequences described below. These statements address only the tax consequences to holders holding exchange notes as capital assets within the meaning of section 1221 of the Code. They do not discuss all of the tax consequences that may be relevant to holders in light of their particular circumstances or to holders subject to special rules, such as certain financial institutions, insurance companies, dealers in securities or foreign currencies, persons holding notes whose functional currency (as defined in Code section 985) is not the U.S. dollar, persons holding notes for United States federal income tax purposes in connection with a hedging transaction, straddle, conversion transaction, or other integrated transaction, traders in securities that elect to mark to market, or holders liable for alternative minimum tax. Persons considering the exchange of old notes for exchange notes should consult their tax advisors concerning the application of United States federal income tax laws, as well as the laws of any state, local, or foreign taxing jurisdiction, to their particular situations.
As used in this prospectus, a "U.S. holder" of a note means a beneficial owner that is, for United States federal income tax purposes:
- a citizen or resident of the United States,
- a corporation or partnership (including an entity treated as a corporation or partnership for United States federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia (unless, in the case of a partnership, Treasury regulations are adopted that provide otherwise),
- an estate the income of which is subject to United States federal income taxation regardless of its source,
- a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all
substantial decisions of the trust or the trust has a valid election in effect under applicable Treasury regulations to be treated as a United States person, or
- a holder of a note whose income or gain in respect of its investment in the note is effectively connected with the conduct of a trade or business in the United States.
As used in this prospectus, the term "non-U.S. holder" means a beneficial owner of a note that is not a U.S. holder.
EXCHANGE OF OLD NOTES FOR EXCHANGE NOTES
The exchange of old notes for exchange notes pursuant to this exchange offer will not be a taxable event to holders for U.S. federal income tax purposes. The exchange of old notes for the exchange notes pursuant to the exchange offer will not be treated as a taxable "exchange" for U.S. federal income tax purposes because the terms of the exchange notes will not be considered to differ materially from the terms of the old notes and because the exchange is occurring pursuant to the terms of the old notes. Accordingly, a holder will have the same adjusted basis and holding period in the exchange notes as it had in the old notes immediately before the exchange.
SALE, EXCHANGE OR RETIREMENT OF THE EXCHANGE NOTES
Notwithstanding the foregoing, upon the sale, exchange or retirement of an exchange note, a U.S. holder will generally recognize taxable gain or loss equal to the difference between the amount realized on the sale, exchange or retirement and such U.S. holder's adjusted tax basis in the exchange note. For these purposes, the amount realized generally does not include any amount attributable to accrued but untaxed interest. A U.S. holder's adjusted tax basis in an exchange note generally will equal the amount it paid for the corresponding old note.
Except to the extent attributable to accrued but unpaid interest (which will be taxable as interest), gain or loss realized on the sale, exchange or retirement of an exchange note will be capital gain or loss and will be long-term capital gain or loss if at the time of sale, exchange or retirement such exchange note has been held for more than one year. The excess of net long-term capital gains over net short-term capital losses is taxed at a lower rate than ordinary income for certain non-corporate taxpayers. The distinction between capital gain or loss and ordinary income or loss is also relevant for purposes of, among other things, limitations on the deductibility of capital losses. Any gain realized by a U.S. holder on a sale or other disposition of an exchange note generally will be treated as U.S. source income.
INTEREST ON THE EXCHANGE NOTES
Interest paid on an exchange note will generally be taxable to a U.S. holder as ordinary interest income at the time it accrues or is received in accordance with the taxpayer's method of accounting for United States federal income tax purposes. A U.S. holder who purchases exchange notes with accrued interest will generally treat payments of accrued interest as a return of capital rather than as an interest payment.
UNITED STATES FEDERAL WITHHOLDING TAX
Generally, if you are a non-U.S. holder you will not be subject to United States federal income tax, and will be entitled to an exemption from the 30% United States federal withholding tax on any payment of principal or premium, if any, or interest on the exchange notes provided that:
- you do not actually or constructively own 10% or more of our voting stock;
- you are not a controlled foreign corporation that is related, directly or indirectly, to us through stock ownership; or
- you are not a bank making a loan in the ordinary course of your business; and
either (a) you provide your name and address on an IRS Form W-8BEN (or other applicable form) and certify, under penalty of perjury, that you are not a U.S. holder, (b) you hold the exchange notes through certain foreign intermediaries and you satisfy the certification requirements of applicable U.S. Treasury regulations or (c) you otherwise provide that you are not a U.S. holder. If you are a non-U.S. holder who is not an individual or corporation (or an entity treated as a corporation for federal income tax purposes) holding the exchange notes on its own behalf, you may have substantially increased reporting requirements. In particular, in the case of exchange notes held by a foreign partnership (or foreign trust), the partners (or beneficiaries) rather than the partnership (or trust) will be required to provide the certification discussed above, and the partnership (or trust) will be required to provide certain additional information.
If you cannot satisfy the requirements described above, payments of principal, premium, if any, and interest made to you will be subject to the 30% United States federal withholding tax, unless you provide us with a properly executed IRS Form W-8BEN (or other applicable form) claiming an exemption from, or reduction in, withholding under the benefit of an applicable tax treaty.
The 30% United States federal withholding tax generally will not apply to any gain that a non-U.S. holder realizes on the sale, exchange, retirement or other disposition of exchange notes, provided that such non-U.S. holder is not an individual who is present in the United States for 183 days or more in the taxable year of the disposition and such gain is not derived from sources within the United States.
BACKUP WITHHOLDING
The paying agent must file information returns with the IRS in connection with payments of interest on the exchange notes or with respect to the proceeds of the sale of exchange notes made to certain U.S. holders. Certain noncorporate U.S. holders may be subject to backup withholding (currently at a rate of 30%, which rate is scheduled to be reduced periodically through 2006) on payments of principal of, premium, if any, and interest on, and the proceeds of disposition of, an exchange note. Backup withholding will apply only if the U.S. holder:
- fails to furnish its taxpayer identification number ("TIN"), which for an individual, would be such individual's Social Security number,
- furnishes an incorrect TIN,
- is notified by the IRS that it has failed to properly report payments of interest and dividends or
- under certain circumstances, fails to certify, under penalty of perjury, that it has furnished a correct TIN and has not been notified by the IRS that it is subject to backup withholding for failure to report interest and dividend payments.
U.S. holders should consult their tax advisors regarding their qualification for exemption from backup withholding and the procedure for obtaining such an exemption if applicable.
The amount of any backup withholding from a payment to a U.S. holder will be allowed as a credit against such U.S. holder's United States federal income tax liability and may entitle such U.S. holder to a refund, provided that the required information is furnished to the IRS.
Non-U.S. holders may have to comply with certification procedures to establish their status as non-U.S. holders in order to avoid information reporting and backup withholding tax requirements.
UNITED STATES FEDERAL ESTATE TAX
If you are a non-U.S. holder, your estate will not be subject to United States federal estate tax on the exchange notes your estate beneficially owns at the time of your death, provided you or your estate do not own 10% or more of our voting stock.
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of those exchange notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a participating broker-dealer, as defined below, during the period referred to below in connection with resales of exchange notes received in exchange for old notes if those old notes were acquired by that participating broker-dealer for its own account as a result of market-making activities or other trading activities. We have agreed that, for a period of 180 days after the Expiration Date, participating broker-dealers will be entitled to use this prospectus, as amended or supplemented from time to time, in connection with the resale of exchange notes as described above, subject to exceptions, including our right to suspend the use of this prospectus as described above under "The Exchange Offer -- Resales of Exchange Notes." However, a participating broker who intends to use this prospectus in connection with the resale of exchange notes must, on or before the Expiration Date, notify or cause the exchange agent to be notified, in the manner provided in the letter of transmittal, that it is a participating broker-dealer.
We will not receive any proceeds from any sale of exchange notes by participating broker-dealers or other persons. Exchange notes received by participating broker-dealers for their own account pursuant to the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the exchange notes or a combination of those methods of resale, at market prices prevailing at the time of resale, at prices related to prevailing market prices or at negotiated prices. Any resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any participating broker-dealer or the purchasers of those exchange notes.
Any broker-dealer who holds old notes acquired for its own account as a result of market-making activities or other trading activities (a "participating broker-dealer") and who receives exchange notes in exchange for those old notes pursuant to the exchange offer and resells those exchange notes must deliver a prospectus meeting the requirements of the Securities Act in connection with the resale of those exchange notes, and such participating broker-dealer and any other broker or dealer that participates in a distribution of those exchange notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any resale of those exchange notes and any commissions or concessions received by any of those persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a participating broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act.
We have agreed to pay all expenses incident to the performance of our obligations under the registration rights agreement and to indemnify the holders of old notes against specified liabilities, including specified liabilities under the Securities Act.
AVAILABLE INFORMATION
We are subject to the information reporting requirements of the Securities Exchange Act and we file periodic reports, proxy statements and other information with the SEC relating to our business, financial results and other matters. The reports, proxy statements and other information we file may be inspected and copied at prescribed rates at the SEC's Public Reference Room at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 and should be available for inspection and copying at the SEC's regional offices located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661 and at 233 Broadway, New York, New York 10007. You may obtain information on the operation of the SEC's Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an internet site that contains reports, proxy statements and other information regarding issuers like us that file electronically with the SEC. The address of the SEC's internet site is www.sec.gov. Our SEC filings are also available at the offices of The New York Stock Exchange, 20 Broad Street, New York, New York, the Chicago Stock Exchange, 440 South LaSalle Street, Chicago, Illinois, and the Pacific Exchange, 301 Pine Street, San Francisco, California.
This prospectus constitutes part of a registration statement on Form S-4 that we have filed under the Securities Act. As permitted by the SEC's rules, this prospectus omits some of the information and all of the exhibits included and incorporated by reference in the registration statement. You may read and copy the information and exhibits omitted from this prospectus but contained or incorporated by reference in the registration statement at the public reference facilities maintained by the SEC in Washington, D.C. and Chicago, Illinois.
Statements contained in this prospectus as to the contents of any contract or other document are not necessarily complete, and in each instance we refer you to the copy of the contract or document filed as an exhibit to the registration statement or to a document incorporated or deemed to be incorporated by reference in the registration statement, each of those statements being qualified in all respects by this reference.
INCORPORATION BY REFERENCE
We have elected to incorporate by reference information into this prospectus. By incorporating by reference, we can disclose important information to you by referring to another document we have filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, except as described in the following sentence. Any statement in this prospectus or in any document which is incorporated or deemed to be incorporated by reference in this prospectus will be deemed to have been modified or superseded to the extent that a statement contained in this prospectus, any supplement to this prospectus or any document that we subsequently file with the SEC that is incorporated or deemed to be incorporated by reference in this prospectus modifies or supersedes that statement. Any statement so modified or superseded will not be deemed to be a part of this prospectus except as so modified or superseded.
This prospectus incorporates by reference the following documents that we have previously filed with the SEC:
- Annual Report on Form 10-K for the fiscal year ended December 30, 2001; and
- Current Reports on Form 8-K filed on January 24, 2002, January 29, 2002, February 26, 2002, February 28, 2002 and March 28, 2002.
We are also incorporating by reference all other reports that we file with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the date of this prospectus and until the completion of the exchange offer or, if this prospectus is being used in connection with the resale of exchange notes by participating broker-dealers as described under "Plan of Distribution," the 180th day after the Expiration Date or such later date to which we may have extended that 180-day period as described under "The Exchange Offer -- Resales of Exchange Notes."
We will provide to each person, including any beneficial owner, to whom this prospectus is delivered, a copy of any of the documents that we have incorporated by reference into this prospectus, other than exhibits unless the exhibits are specifically incorporated by reference in those documents. To receive a copy of any of the documents incorporated by reference in this prospectus, other than exhibits unless they are specifically incorporated by reference in those documents, call or write to our Director of Investor Relations at Weyerhaeuser Company, P.O. Box 9777, Federal Way, Washington 98063-9777, telephone (253) 924-2058. The information relating to us contained in this prospectus is not complete and should be read together with the information contained in the documents incorporated and deemed to be incorporated by reference in this prospectus.
LEGAL MATTERS
The validity of the exchange notes will be passed upon for us by Lorrie D. Scott, Esq., Senior Legal Counsel of Weyerhaeuser Company.
EXPERTS
The consolidated balance sheets of Weyerhaeuser Company and subsidiaries as of December 30, 2001 and December 31, 2000 and the related consolidated statements of earnings, cash flows, shareholders' interest and financial statement schedule II -- valuation and qualifying accounts for each of the years in the three-year period ended December 30, 2001, incorporated by reference in this prospectus, have been audited by Arthur Andersen LLP, independent auditors, as indicated in their reports with respect thereto, and are incorporated by reference in this prospectus in reliance upon the authority of said firm as experts in accounting and auditing in giving said reports.
The consolidated balance sheets of Willamette Industries, Inc. and subsidiaries as of December 31, 2001 and 2000 and the related consolidated statements of earnings, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2001, incorporated by reference in this prospectus, have been audited by KPMG LLP, independent auditors, as stated in their reports incorporated by reference herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Washington Business Corporation Act sets forth provisions pursuant to which officers and directors of the Registrant may be indemnified against liabilities that they may incur in their capacity as such. Article XII of the Registrant's Bylaws provides for the indemnification of directors and officers of the Registrant against certain liabilities under certain circumstances.
Under insurance policies of the Registrant, directors and officers of the Registrant may be indemnified against certain losses arising from certain claims that may be made against such persons by reason of their being directors or officers.
Reference is made to Section 5 of the registration rights agreement filed as an exhibit hereto. That section provides that the holders of notes will in certain circumstances indemnify the Registrant, its directors and certain of its officers and the persons, if any, who control the Registrant within the meaning of the Securities Act against certain liabilities.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
4.1 Indenture dated as of April 1, 1986 between Weyerhaeuser
Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank and Chemical Bank), as Trustee (incorporated
by reference from the Registration Statement on Form S-3,
Registration No. 333-36753).
4.2 First Supplemental Indenture dated as of February 15, 1991
between Weyerhaeuser Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank and Chemical
Bank), as Trustee (incorporated by reference from the
Registration Statement on Form S-3, Registration No.
33-52982).
4.3 Second Supplemental Indenture dated as of February 1, 1993
between Weyerhaeuser Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank and Chemical
Bank), as Trustee (incorporated by reference from the
Registration Statement on Form S-3, Registration No.
33-59974).
4.4 Third Supplemental Indenture dated as of October 22, 2001
between Weyerhaeuser Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Trustee
(incorporated by reference from the Registration Statement
on Form S-3, Registration No. 333-72356).
4.5 Form of old note (included in Third Supplemental Indenture
filed as Exhibit 4.4).
4.6 Form of exchange note (included in Third Supplemental
Indenture filed as Exhibit 4.4).
4.7 Registration Rights Agreement dated October 22, 2001 among
Weyerhaeuser Company and the several initial purchasers
parties thereto.(1)
4.8 Fourth Supplemental Indenture dated as of March 12, 2002
between Weyerhaeuser Company and JPMorgan Chase Bank.(2)
5.1 Opinion of Lorrie D. Scott, Esq., Senior Legal Counsel of
Weyerhaeuser Company.(1)
12.1 Computation of Ratios of Earnings to Fixed Charges(2):
(a) Weyerhaeuser Company and Subsidiaries -- Computation of
Ratios of Earnings to Fixed Charges.
(b) Weyerhaeuser Company with its Weyerhaeuser Real Estate
Company, Weyerhaeuser Financial Services, Inc. and Gryphon
Investments of Nevada, Inc. subsidiaries accounted for
on the equity method, but excluding the undistributed
earnings of those subsidiaries -- Computation of Ratios
of Earnings to Fixed Charges.
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II-1
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
(c) Weyerhaeuser Company and Subsidiaries -- Computation of
Pro Forma Ratio of Earnings to Fixed Charges.
(d) Weyerhaeuser Company with its Weyerhaeuser Real Estate
Company, Weyerhaeuser Financial Services, Inc. and Gryphon
Investments of Nevada, Inc. subsidiaries accounted for on
the equity method, but excluding the undistributed
earnings of those subsidiaries -- Computation of Pro
Forma Ratio of Earnings to Fixed Charges.
23.1 Consent of Lorrie D. Scott, Esq. (contained in Exhibit 5.1
thereto).(1)
23.2 Consent of Arthur Andersen LLP, independent auditors.(2)
23.3 Consent of KPMG LLP, independent auditors.(2)
24.1 Power of Attorney.(1)
25.1 Statement of Eligibility on Form T-1 of JPMorgan Chase Bank,
as Trustee.(1)
99.1 Form of Letter of Transmittal.(1)
99.2 Form of Notice of Guaranteed Delivery.(1)
99.3 Form of Exchange Agent Agreement.(1)
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(1)Filed previously.
(2)Filed herewith.
ITEM 22. UNDERTAKINGS.
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions (except for the insurance referred to in the second paragraph of Item 20) or otherwise, the Registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding and other than a claim under such insurance) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933, and will be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of this registration statement through the date of responding to the request.
The undersigned Registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this amendment to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Federal Way, State of Washington, on March 28, 2002.
WEYERHAEUSER COMPANY
By /s/ CLAIRE S. GRACE
------------------------------------
Claire S. Grace
Corporate Secretary and
Assistant General Counsel
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Pursuant to the requirements of the Securities Act of 1933, this amendment to the registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
------------------------------------------------------------------------------------------------------
/s/ STEVEN R. ROGEL* President, Chief Executive March 28, 2002
----------------------------------------------------- Officer and Director
Steven R. Rogel (Principal Executive Officer)
/s/ WILLIAM C. STIVERS* Executive Vice President and March 28, 2002
----------------------------------------------------- Chief Financial Officer
William C. Stivers (Principal Financial Officer)
/s/ STEVEN J. HILLYARD* Vice President and Controller March 28, 2002
----------------------------------------------------- (Principal Accounting
Steven J. Hillyard Officer)
/s/ W. JOHN DRISCOLL* Director March 28, 2002
-----------------------------------------------------
W. John Driscoll
/s/ RICHARD F. HASKAYNE* Director March 28, 2002
-----------------------------------------------------
Richard F. Haskayne
/s/ ROBERT J. HERBOLD* Director March 28, 2002
-----------------------------------------------------
Robert J. Herbold
/s/ MARTHA R. INGRAM* Director March 28, 2002
-----------------------------------------------------
Martha R. Ingram
/s/ JOHN I. KIECKHEFER* Director March 28, 2002
-----------------------------------------------------
John I. Kieckhefer
/s/ ARNOLD G. LANGBO* Director March 28, 2002
-----------------------------------------------------
Arnold G. Langbo
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II-3
SIGNATURE TITLE DATE
------------------------------------------------------------------------------------------------------
/s/ RT. HON. DONALD F. MAZANKOWSKI* Director March 28, 2002
-----------------------------------------------------
Rt. Hon. Donald F. Mazankowski
/s/ WILLIAM. D. RUCKELSHAUS* Director March 28, 2002
-----------------------------------------------------
William D. Ruckelshaus
/s/ RICHARD. H. SINKFIELD* Director March 28, 2002
-----------------------------------------------------
Richard H. Sinkfield
/s/ JAMES N. SULLIVAN* Director March 28, 2002
-----------------------------------------------------
James N. Sullivan
/s/ CLAYTON K. YEUTTER* Director March 28, 2002
-----------------------------------------------------
Clayton K. Yeutter
*By /s/ CLAIRE S. GRACE
-------------------------------------------------
Claire S. Grace
Attorney-in-Fact
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II-4
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
4.1 Indenture dated as of April 1, 1986 between Weyerhaeuser
Company and JPMorgan Chase Bank (formerly known as The Chase
Manhattan Bank and Chemical Bank), as Trustee (incorporated
by reference from the Registration Statement on Form S-3,
Registration No. 333-36753).
4.2 First Supplemental Indenture dated as of February 15, 1991
between Weyerhaeuser Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank and Chemical
Bank), as Trustee (incorporated by reference from the
Registration Statement on Form S-3, Registration No.
33-52982).
4.3 Second Supplemental Indenture dated as of February 1, 1993
between Weyerhaeuser Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank and Chemical
Bank), as Trustee (incorporated by reference from the
Registration Statement on Form S-3, Registration No.
33-59974).
4.4 Third Supplemental Indenture dated as of October 22, 2001
between Weyerhaeuser Company and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Trustee
(incorporated by reference from the Registration Statement
on Form S-3, Registration No. 333-72356).
4.5 Form of old note (included in Third Supplemental Indenture
filed as Exhibit 4.4).
4.6 Form of exchange note (included in Third Supplemental
Indenture filed as Exhibit 4.4).
4.7 Registration Rights Agreement dated October 22, 2001 among
Weyerhaeuser Company and the several initial purchasers
parties thereto.(1)
4.8 Fourth Supplemental Indenture dated as of March 12, 2002
between Weyerhaeuser Company and JPMorgan Chase Bank.(2)
5.1 Opinion of Lorrie D. Scott, Esq., Senior Legal Counsel of
Weyerhaeuser Company.(1)
12.1 Computation of Ratios of Earnings to Fixed Charges(2):
(a) Weyerhaeuser Company and Subsidiaries -- Computation of
Ratios of Earnings to Fixed Charges.
(b) Weyerhaeuser Company with its Weyerhaeuser Real Estate
Company, Weyerhaeuser Financial Services, Inc. and Gryphon
Investments of Nevada, Inc. subsidiaries accounted for
on the equity method, but excluding the undistributed
earnings of those subsidiaries -- Computation of Ratios
of Earnings to Fixed Charges.
(c) Weyerhaeuser Company and Subsidiaries -- Computation of
Pro Forma Ratio of Earnings to Fixed Charges.
(d) Weyerhaeuser Company with its Weyerhaeuser Real Estate
Company, Weyerhaeuser Financial Services, Inc. and Gryphon
Investments of Nevada, Inc. subsidiaries accounted for on
the equity method, but excluding the undistributed
earnings of those subsidiaries -- Computation of Pro
Forma Ratio of Earnings to Fixed Charges.
23.1 Consent of Lorrie D. Scott, Esq. (contained in Exhibit 5.1
thereto).(1)
23.2 Consent of Arthur Andersen LLP, independent auditors.(2)
23.3 Consent of KPMG LLP, independent auditors.(2)
24.1 Power of Attorney.(1)
25.1 Statement of Eligibility on Form T-1 of JPMorgan Chase Bank,
as Trustee.(1)
99.1 Form of Letter of Transmittal.(1)
99.2 Form of Notice of Guaranteed Delivery.(1)
99.3 Form of Exchange Agent Agreement.(1)
|
(1) Filed previously.
(2) Filed herewith.
EXHIBIT 4.8
FOURTH SUPPLEMENTAL INDENTURE (this "FOURTH SUPPLEMENTAL INDENTURE") dated as of March 12, 2002 between WEYERHAEUSER COMPANY, a Washington corporation (the "ISSUER"), and JPMORGAN CHASE BANK (formerly known as The Chase Manhattan Bank and Chemical Bank), a New York banking corporation, as trustee (the "TRUSTEE").
WHEREAS the Issuer has executed and delivered to the Trustee an Indenture dated as of April 1, 1986 (the "ORIGINAL INDENTURE"), as amended and supplemented by the First Supplemental Indenture dated as of February 15, 1991 (the "FIRST SUPPLEMENTAL INDENTURE"), the Second Supplemental Indenture dated as of February 1, 1993 (the "SECOND SUPPLEMENTAL INDENTURE") and the Third Supplemental Indenture dated as of October 22, 2001 (the "THIRD SUPPLEMENTAL INDENTURE"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and the Third Supplemental Indenture, is hereinafter called the "Prior Indenture" and the Prior Indenture, as amended and supplemented by this Fourth Supplemental Indenture, is hereinafter called, the "INDENTURE"), providing for the issuance and sale by the Issuer from time to time of its debt securities (the "SECURITIES");
WHEREAS, Section 8.1 of the Prior Indenture provides that the Issuer may enter into a supplemental indenture without the consent of any Holder of the Securities to, among other things, (i) add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as its Board of Directors and the Trustee shall consider to be for the protection of the Holders of Securities or Coupons, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in the Indenture, (ii) establish the form or terms of Securities of any series or of the Coupons appertaining to such Securities as permitted by Sections 2.1 and 2.3 of the Prior Indenture, or (iii) to make any other provisions as the Board of Directors may deem necessary or desirable, provided that no such action shall adversely affect the interests of the Holders of the Securities or Coupons. The Issuer has determined that this Fourth Supplemental Indenture complies with said Section 8.1 and does not require the consent of any Holders of Securities, and has furnished the Trustee with an Opinion of Counsel and an Officers' Certificate complying with the requirements of Section 8.4 of the Prior Indenture.
WHEREAS the Issuer proposes in and by this Fourth Supplemental Indenture to supplement and amend the Prior Indenture in certain respects to (i) add to the covenants of the Issuer certain further covenants, restrictions, conditions and provisions for the protection of the Holders of Securities and to make the occurrence of a default in certain of such additional covenants, restrictions, conditions and provisions an Event of Default permitting the enforcement of the several remedies provided in the Indenture, and (ii) establish five separate series of Securities issued pursuant to the Indenture designated as the Floating Rate Notes due 2003, 5.50% Notes due 2005, 6.125% Notes due 2007, 6.75% Notes due 2012 and 7.375% Debentures due 2032, respectively; and
WHEREAS the Issuer has requested that the Trustee execute and deliver this Fourth Supplemental Indenture and has certified that all requirements necessary to make this Fourth Supplemental Indenture a valid instrument in accordance with its terms have been satisfied, and
that the execution and delivery of this Fourth Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, the Issuer covenants and agrees with the Trustee for the equal and proportionate benefit of all Holders of the Offered Securities (as defined below):
SECTION 1. Definitions.
(a) Terms used herein and not defined herein have the meanings ascribed to such terms in the Prior Indenture.
(b) Section 1.1 of the Prior Indenture is hereby supplemented to add the definition of "Fourth Supplemental Indenture" appearing below and is hereby further supplemented, but solely insofar as it relates to the Offered Securities, to add the following other definitions, all in the appropriate alphabetical sequence:
"144A GLOBAL SECURITIES" has the meaning provided in Section 2.1.
"ADDITIONAL SECURITIES" means, with respect to the Offered
Securities of any series, any additional Securities of such series which
may be issued under the Indenture from time to time pursuant to a
"re-opening" of such series of Offered Securities, as contemplated by
Section 2(a) of the Fourth Supplemental Indenture.
"AGENT MEMBERS" means members of, or participants in, the Depositary.
"CALCULATION AGENT" means JPMorgan Chase Bank, as Calculation Agent, or its successor in such capacity pursuant to the Calculation Agreement.
"CALCULATION AGREEMENT" means the Calculation Agent Agreement dated as of March 6, 2002 between the Issuer and JPMorgan Chase Bank, as calculation agent (or any successor thereto), as the same may be amended or supplemented from time to time.
"CLOSING DATE" means March 12, 2002.
"DTC LEGEND" means, with respect to the Offered Securities of any series, a legend substantially in the form of the legends appearing in the fourth and fifth paragraphs of Exhibit A-1, A-2, A-3, A-4 or A-5 to the Fourth Supplemental Indenture, as the case may be.
"EXCHANGE SECURITIES" means Securities of any series which are issued pursuant to the Indenture in exchange for other Offered Securities of such series in an exchange offer pursuant to an effective registration statement under the Securities Act, whether pursuant to the Registration Rights Agreement or otherwise.
"FINAL MATURITY DATE," when used with respect to the Tranche 1 Securities, means September 15, 2003, when used with respect to Tranche
Securities, means March 15, 2005, when used with respect to the Tranche 3 Securities, means March 15, 2007, when used with respect to the Tranche 4 Securities, means March 15, 2012, and when used with respect to the Tranche 5 Securities, means March 15, 2032.
"FOURTH SUPPLEMENTAL INDENTURE" means the Fourth Supplemental Indenture dated as of March 12, 2002 between the Issuer and the Trustee, as originally executed and delivered or, if amended or supplemented as provided in this Indenture, as so amended or supplemented or both, and shall include the form and terms of each series of Offered Securities established thereby.
"GLOBAL OFFERED SECURITIES" has the meaning provided in Section
2.1. For purposes of clarity, it is hereby confirmed that the Global
Offered Securities constitute Global Securities (as defined elsewhere in
this Indenture).
"INITIAL PURCHASERS" means the initial purchasers named in the Purchase Agreement.
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is
an "accredited investor" as that term is defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act.
"NON-U.S. PERSON" means a Person who is not a "U.S. person" (as defined in Regulation S).
"OFFERED SECURITIES" means the five series of Securities issued pursuant to this Indenture designated as the Floating Rate Notes due 2003, the 5.50% Notes due 2005, the 6.125% Notes due 2007, the 6.75% Notes due 2012, and the 7.375% Debentures due 2032, respectively, including, with respect to the Securities of each such series, the Securities of such series initially issued on the Closing Date, any Exchange Securities of such series issued in exchange for any other Offered Securities of such series, and any other Offered Securities of such series issued after the Closing Date under this Indenture.
"OFFSHORE TRANSACTION" has the meaning set forth in Regulation S.
"PHYSICAL SECURITIES" has the meaning provided in Section 2.1.
"PRIVATE PLACEMENT LEGEND" means, with respect to the Offered Securities of any series, a legend substantially in the form of the legends appearing in the first three paragraphs of Exhibit A-1, A-2, A-3, A-4 or A-5 to the Fourth Supplemental Indenture, as the case may be.
"PURCHASE AGREEMENT" means the Purchase Agreement dated March 6, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc, as representatives of the Initial Purchasers.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRATION RIGHTS AGREEMENT" means either (1) the Registration Rights Agreement dated March 12, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc., as representatives of the Initial Purchasers, or (2) with respect to any subsequent issuance of Additional Securities of any series in a transaction exempt from the registration requirements of the Securities Act, any other registration rights agreement, if any, entered into by the Issuer and the other parties thereto in connection with any such issuance, or any or all of the foregoing, as the context shall require.
"REGULATION S" means Regulation S under the Securities Act or any successor thereto.
"REGULATION S GLOBAL SECURITIES" has the meaning provided in
Section 2.1.
"REGULATION S PHYSICAL SECURITIES" has the meaning provided in
Section 2.1.
"RULE 144A" means Rule 144A under the Securities Act or any successor thereto.
"RULE 144" means Rule 144 under the Securities Act or any successor thereto.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TRANCHE 1 SECURITIES" means the series of Securities issued pursuant to this Indenture designated as the Floating Rate Notes due 2003, including Tranche 1 Securities initially issued on the Closing Date, any Exchange Securities of such series issued in exchange for any other Tranche 1 Securities, and any Additional Securities of such series issued after the Closing Date under this Indenture. For purposes of this Indenture, all Tranche 1 Securities, including, without limitation, Exchange Securities of such series and Additional Securities of such series, shall constitute a single series of Securities under this Indenture.
"TRANCHE 2 SECURITIES" means the series of Securities issued pursuant to this Indenture designated as the 5.50% Notes due 2005, including Tranche 2 Securities initially issued on the Closing Date, any Exchange Securities of such series issued in exchange for any other Tranche 2 Securities, and any Additional Securities of such series issued after the Closing Date under this Indenture. For purposes of this Indenture, all Tranche 2 Securities, including, without limitation, Exchange Securities of such series and Additional Securities of such series, shall constitute a single series of Securities under this Indenture.
"TRANCHE 3 SECURITIES" means the series of Securities issued pursuant to this Indenture designated as the 6.125% Notes due 2007, including Tranche 3 Securities initially issued on the Closing Date, any Exchange Securities of such series issued in exchange for any other Tranche 3 Securities, and any Additional
Securities of such series issued after the Closing Date under this Indenture. For purposes of this Indenture, all Tranche 3 Securities, including, without limitation, Exchange Securities of such series and Additional Securities of such series, shall constitute a single series of Securities under this Indenture.
"TRANCHE 4 SECURITIES" means the series of Securities issued pursuant to this Indenture designated as the 6.75% Notes due 2012, including Tranche 4 Securities initially issued on the Closing Date, any Exchange Securities of such series issued in exchange for any other Tranche 4 Securities, and any Additional Securities of such series issued after the Closing Date under this Indenture. For purposes of this Indenture, all Tranche 4 Securities, including, without limitation, Exchange Securities of such series and Additional Securities of such series, shall constitute a single series of Securities under this Indenture.
"TRANCHE 5 SECURITIES" means the series of Securities issued pursuant to this Indenture designated as the 7.375% Debentures due 2032, including Tranche 5 Securities initially issued on the Closing Date, any Exchange Securities of such series issued in exchange for any other Tranche 5 Securities, and any Additional Securities of such series issued after the Closing Date under this Indenture. For purposes of this Indenture, all Tranche 5 Securities, including, without limitation, Exchange Securities of such series and Additional Securities of such series, shall constitute a single series of Securities under this Indenture.
"U.S. PHYSICAL SECURITIES" has the meaning provided in Section 2.1."
SECTION 2. Creation of the Offered Securities. Pursuant to Section 2.3 of the Indenture, there are hereby created five new series of Securities designated as the "Floating Rate Notes due 2003," the "5.50% Notes due 2005," the "6.125% Notes due 2007," the "6.75% Notes due 2012" and the "7.375% Debentures due 2032," respectively. The Tranche 1 Securities, Tranche 2 Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities shall have the following respective terms:
(a) The aggregate principal amount of Tranche 1 Securities, Tranche 2 Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities that may be authenticated and delivered under the Indenture is initially limited to $500,000,000, $1,000,000,000, $1,000,000,000, $1,750,000,000 and $1,250,000,000, respectively, except, in the case of any such series of Offered Securities, for Offered Securities of such series authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Offered Securities of such series pursuant to Sections 2.2A, 2.8, 2.9, 2.11, 2.12, 2.13, 8.5 or 12.3 of the Indenture and including, without limitation, Exchange Securities of such series which have been registered under the Securities Act and issued in exchange for Offered Securities of such series in an exchange offer pursuant to the Registration Rights Agreement. However, any such series may be re-opened from time to time by the Issuer for the issuance of Additional Securities of such series, without the consent of the Holders, so long as any such Additional Securities of such series have the same form and terms (other than the date of issuance and, if applicable, the date from which interest thereon shall begin to accrue, and except that the form of such Additional Securities may refer to a different Registration Rights Agreement than the Offered Securities of
such series issued on the Closing Date and such Additional Securities, if issued pursuant to a registration statement which is effective under the Securities Act, need not bear the Private Placement Legend and may omit the paragraph included in Exhibit A-1, A-2, A-3, A-4 or A-5 hereto, as the case may be, which refers to the Registration Rights Agreement), and carry the same right to receive accrued and unpaid interest, as the Offered Securities of such series theretofore issued; provided, however, that, notwithstanding the foregoing, a series may not be reopened if the Issuer has effected satisfaction and discharge or defeasance with respect to such series pursuant to Section 10.1(A) or 10.1(B) of the Indenture; and provided, further, that no Additional Securities of any series may be issued at a price that would cause such Additional Securities to have "original issue discount" within the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended.
(b) The Offered Securities of each series are to be issuable only as Registered Securities without Coupons. The Offered Securities of each series may be issued as either Physical Securities or Global Offered Securities, or both, the initial Depositary for the Global Offered Securities of each series shall be The Depository Trust Company and the depositary arrangements with respect to the Global Offered Securities of each series shall be those employed by whomever shall be the Depositary with respect to the Global Offered Securities of such series from time to time.
(c) The Offered Securities issued on the Closing Date shall be sold by the Issuer to the Initial Purchasers named in the Purchase Agreement (the form, terms, execution and delivery of such Purchase Agreement being hereby ratified and approved in all respects). The initial offering price of the Tranche 1 Securities issued on the Closing Date shall be 100% of the principal amount thereof plus accrued interest, if any, from March 12, 2002.
The initial offering price of the Tranche 2 Securities issued on the Closing Date shall be 99.863% of the principal amount thereof plus accrued interest, if any, from March 12, 2002.
The initial offering price of the Tranche 3 Securities issued on the Closing Date shall be 99.867% of the principal amount thereof plus accrued interest, if any, from March 12, 2002.
The initial offering price of the Tranche 4 Securities issued on the Closing Date shall be 99.354% of the principal amount thereof plus accrued interest, if any, from March 12, 2002.
The initial offering price of the Tranche 5 Securities issued on the Closing Date shall be 98.703% of the principal amount thereof plus accrued interest, if any, from March 12, 2002.
(d) The Final Maturity Dates of the Tranche 1 Securities, Tranche 2 Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities on which the principal thereof is due and payable shall be the respective dates set forth in the definition of "Final Maturity Date" appearing in Section 1 of this Fourth Supplemental Indenture.
(e) The principal of the Tranche 1 Securities will bear interest at a per annum rate equal to LIBOR (as defined in Exhibit A-1 attached hereto), adjusted quarterly, plus 1.125% per annum, all in the manner and on the terms and conditions set forth in Exhibit A-1 attached hereto. Interest on the Tranche 1 Securities will accrue from March 12, 2002 or from the most recent date to which interest has been paid or duly provided for on the Tranche 1 Securities,
payable quarterly in arrears on each Interest Payment Date (as defined in Exhibit A-1 hereto), commencing June 15, 2002, and at maturity. Interest payable on any Interest Payment Date for the Tranche 1 Securities will, subject to certain exceptions provided in the Indenture, be paid to the Persons in whose names the Tranche 1 Securities are registered at the close of business on the 15th calendar day (whether or not a Floating Rate Business Day (as defined in Exhibit A-1 hereto)) next preceding that Interest Payment Date; provided that interest payable on the Final Maturity Date of the Tranche 1 Securities will be paid to the Persons to whom principal is paid. Interest on the Tranche 1 Securities will be calculated on the basis of the actual number of days in the applicable period divided by 360. No additional amounts of the nature referred to in subparagraph (15) of Section 2.3 of the Indenture shall be payable on the Tranche 1 Securities.
The interest rate on the Tranche 1 Securities will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application.
The Issuer covenants and agrees that, so long as any of the Tranche 1 Securities remains Outstanding, there shall at all times be a Calculation Agent for the purpose of the Tranche 1 Securities. In the event of the Calculation Agent being unable or unwilling to continue to act as the Calculation Agent for the Tranche 1 Securities or in the case of the Calculation Agent failing duly to establish the rate of interest on the Tranche 1 Securities for any Interest Period (as defined in Exhibit A-1 attached hereto), the Issuer shall appoint another bank of recognized standing in the United States as Calculation Agent. The Calculation Agent may not resign its duties, nor may the Issuer remove the Calculation Agent, without a successor having been appointed as aforesaid. The Calculation Agent shall determine the interest rate on the Tranche 1 Securities as of each Interest Determination Date (as defined in Exhibit A-1 hereto). The covenants, agreements and other provisions set forth in this paragraph are solely for the benefit of the Holders from time to time of the Tranche 1 Securities.
(f) The principal of the Tranche 2 Securities, Tranche 3 Securities,
Tranche 4 Securities and Tranche 5 Securities shall bear interest at the rate of
5.50% per annum, 6.125% per annum, 6.75% per annum and 7.375% per annum,
respectively, from March 12, 2002 or from the most recent date to which interest
has been paid or duly provided for on the Offered Securities of the applicable
series, payable semiannually in arrears on March 15 and September 15 of each
year, commencing September 15, 2002, which interest shall (subject to certain
exceptions provided in the Indenture) be paid to the Persons in whose names the
Offered Securities of such series are registered at the close of business on the
March 1 or September 1, as the case may be, immediately preceding such interest
payment dates. Interest on the Offered Securities of each series (other than the
Tranche 1 Securities) will be computed on the basis of a 360-day year of twelve
30-day months. No additional amounts of the nature referred to in subparagraph
(15) of Section 2.3 of the Indenture shall be payable on the Tranche 2
Securities, Tranche 3 Securities, Tranche 4 Securities or Tranche 5 Securities.
(g) The principal of and premium, if any, and interest on the Offered Securities of each series shall be payable, the Offered Securities of each series may be surrendered for registration of transfer and exchange, and notices and demands to or upon the Issuer in respect of the Offered Securities of each series or the Indenture may be served, at the agency of the Issuer maintained for such purposes from time to time in the Borough of Manhattan, The City of New
York, and the Issuer hereby appoints the Trustee as trustee, paying agent, transfer agent and registrar for the Offered Securities of each series and designates the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of New York, as the Issuer's agency for the foregoing purposes; provided, however, that the Issuer, subject to the applicable provisions of the Indenture, may, with respect to the Offered Securities of any series, appoint another Person to be the registrar, transfer agent or paying agent, and appoint additional registrars, transfer agents and paying agents, with respect to the Offered Securities of any series so long as the Issuer shall at all times maintain an agency for the foregoing purposes in the Borough of Manhattan, The City of New York for the Offered Securities of each series.
(h) The Tranche 1 Securities will not be subject to redemption at the option of the Issuer prior to their Final Maturity Date. The Offered Securities of each other series may be redeemed by the Issuer, in whole or from time to time in part, at the option of the Issuer on any date upon not less than 30 nor more than 60 days notice given as provided in the Indenture, at a redemption price calculated as provided in the respective form of the Offered Securities of such series attached hereto as Exhibit A-2, Exhibit A-3, Exhibit A-4 or Exhibit A-5, as the case may be, plus accrued and unpaid interest on the principal amount of the Offered Securities of such series being redeemed to the applicable redemption date; provided that payments of interest on the Offered Securities of such series that are due and payable on a date on or prior to a date fixed for redemption of the Offered Securities of such series will be payable to the Holders of the Offered Securities of such series registered as such at the close of business on the relevant record dates according to their terms and the terms and provisions of the Indenture.
Any redemption of Offered Securities of any series shall be made on the other terms and conditions set forth in the Indenture.
(i) The Offered Securities of each series shall not be repayable or redeemable at the option of the Holders prior to the Final Maturity Date of the Offered Securities of such series (provided that nothing in this Fourth Supplemental Indenture shall limit the right of the Trustee or the Holders of the Offered Securities of any series to declare the principal of, and accrued and unpaid interest on, the Offered Securities of such series to be immediately due and payable as provided in Article Five of the Indenture) and shall not be subject to a sinking fund or analogous provision.
(j) The principal of, premium, if any, and interest on the Offered Securities of each series shall be payable in such coin or currency of the United States of America as of the time of payment shall be legal tender for the payment of public and private debts.
(k) To the extent that any provision of the Indenture or the Offered Securities of any series provides for the payment of interest on overdue principal of, or premium, if any, or interest (including, without limitation, any additional interest which may be payable pursuant to a Registration Rights Agreement) on, the Offered Securities of such series, then, to the extent permitted by law, interest on such overdue principal, premium, if any, and interest on the Offered Securities of such series shall accrue at the per annum rate of interest borne by the Offered Securities of such series or, in the case of the Tranche 1 Securities, at the per annum rate of interest borne by the Tranche 1 Securities as such interest rate may be adjusted from time to time in accordance with the terms of the Tranche 1 Securities (and, if additional interest shall at any
time accrue on the Offered Securities of any series pursuant to a Registration
Rights Agreement, then the per annum interest rate on the Offered Securities of
such series for each day on which such additional interest shall accrue shall,
for purposes of any such provision of the Indenture, be deemed to be equal to
(1) in the case of the Tranche 1 Securities, the sum of LIBOR for such day plus
1.125% per annum plus the per annum rate at which such additional interest shall
accrue on the Tranche 1 Securities for such day, (2) in the case of the Tranche
2 Securities, 5.50% per annum plus the per annum rate at which such additional
interest shall accrue on the Tranche 2 Securities for such day, (3) in the case
of the Tranche 3 Securities, 6.125% per annum plus the per annum rate at which
such additional interest shall accrue on the Tranche 3 Securities for such day,
(4) in the case of the Tranche 4 Securities, 6.75% per annum plus the per annum
rate at which such additional interest shall accrue on the Tranche 4 Securities
for such day and (5) in the case of the Tranche 5 Securities, 7.375% per annum
plus the per annum rate at which such additional interest shall accrue on the
Tranche 5 Securities for such day), and, anything in the Indenture to the
contrary notwithstanding, in the case of any requirement in the Indenture that
the Issuer pay (or that the Trustee distribute) interest on overdue principal
of, or premium, if any, or interest on, the Offered Securities of any series,
such payment or distribution shall only be required to the extent it is
permitted by applicable law.
(l) As used in the Indenture with respect to the Offered Securities of any series which are redeemable at the option of the Issuer and in the certificates evidencing the Offered Securities of such series, all references to "premium" on the Offered Securities of such series shall mean any amounts (other than accrued interest) payable upon the redemption of any Offered Security of such series in excess of 100% of the principal amount of such Offered Security. In the event that any reference is made in this Fourth Supplemental Indenture to "premium" in respect of the Tranche 1 Securities (which are not redeemable at the option of the Issuer prior to their Final Maturity Date), such references to "premium" shall be disregarded insofar as relates to the Tranche 1 Securities.
(m) The following additional terms shall be applicable with respect to the Offered Security of each series:
(1) the phrase "due or to become due to such date of maturity" appearing in the 36th and 37th lines of Section 10.1(A) of the Prior Indenture shall be deleted and replaced with the phrase "due or to become due on or prior to such date of maturity or redemption, as the case may be,";
(2) the Issuer shall not act as its own paying agent for purposes of Section 10.2 of the Indenture;
(3) all references in the Indenture to the "Secretary" and any "Assistant Secretary" of the Issuer shall be deemed to include a reference to the Corporate Secretary and any Assistant Corporate Secretary, respectively, of the Issuer; and
(4) the phrase "acquires by sale or conveyance substantially all the assets" appearing in clause (i) of Section 9.1 of the Prior Indenture shall be
deleted and replaced with the phrase "acquires by sale or conveyance all or substantially all the assets."
(n) The Tranche 1 Securities, Tranche 2 Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities shall have such additional terms and provisions as are set forth in the respective forms thereof attached hereto as Exhibits A-1, A-2, A-3, A-4 and A-5, respectively, which terms and provisions are hereby incorporated by reference in and made a part of this Fourth Supplemental Indenture and the Indenture as if set forth in full herein and therein.
SECTION 3. Amendments to Article Two.
(a) Section 2.1 of the Prior Indenture is hereby amended, solely insofar as relates to the Offered Securities, by replacing it in its entirety with the following:
"Section 2.1. Form of Offered Securities. (a) The Tranche 1 Securities, Tranche 2 Securities, Tranche 3 Securities, Tranche 4 Securities and Tranche 5 Securities shall be substantially in the respective forms annexed to the Fourth Supplemental Indenture as Exhibits A-1, Exhibit A-2, Exhibit A-3, Exhibit A-4 and Exhibit A-5, respectively, which Exhibits are hereby incorporated in and expressly made a part of this Indenture, and the Offered Securities of each series may have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing the Offered Securities of such series; provided that the form of any Additional Securities of any series may have such variations as are permitted by paragraph (a) of Section 2 of the Fourth Supplemental Indenture; and provided, further, that Physical Securities of any series may deviate (in form but not in substance) from the form attached as Exhibit A-1, A-2, A-3, A-4 or A-5, as the case may be, to the Fourth Supplemental Indenture in such respects as any Officer (as defined below) of the Issuer may approve as necessary or appropriate to protect against fraud or forgery (such approval to be conclusively evidenced by the execution of any such Physical Security by any such Officer), including without limitation, by changing the form of the Physical Securities of such series so that they have a "face" and a "reverse" and/or by moving the signatures and/or Trustee's certificate of authentication so that they appear on the same page as the principal amount of the Physical Securities (and, if the Physical Securities of any series shall be issued in a form that deviates from the form attached hereto as contemplated by this proviso, then all or any of the Global Offered Securities of such series also may be issued in such form); and provided, further, that temporary Physical Securities of any series may be issued in substantially the respective form annexed as Exhibit A-1, A-2, A-3, A-4 or A-5, as the case may be, to the Fourth Supplemental Indenture even though the definitive Physical Securities of such series are issued in a different form as contemplated by the immediately preceding proviso. Each Offered Security shall
be dated the date of its authentication. As used in this Section 2.1(a), the term "OFFICER" means the chairman of the Board of Directors, any vice chairman of the Board of Directors, the president, any vice president or the treasurer of the Issuer.
"The terms and provisions contained in the forms of the Offered Securities annexed as Exhibits A-1, A-2, A-3, A-4 and A-5 to the Fourth Supplemental Indenture shall constitute, and are hereby expressly made, a part of this Indenture. To the extent applicable, the Issuer and the Trustee, by their execution and delivery of the Fourth Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
The Offered Securities of any series initially offered and sold in reliance on Rule 144A shall be issued initially in the form of one or more permanent Global Securities in registered form ("144A GLOBAL SECURITIES"), deposited with the Trustee, as custodian for the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the 144A Global Securities of any series may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
The Offered Securities of any series initially offered and sold in offshore transactions in reliance on Regulation S shall be issued initially in the form of one or more permanent Global Securities in registered form ("REGULATION S GLOBAL SECURITIES") deposited with the Trustee, as custodian for the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of the Regulation S Global Securities of any series may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.
The Offered Securities of each series initially offered and sold to Institutional Accredited Investors that are not QIBs shall be issued in the form of certificated Offered Securities of such series in registered form ("U.S. PHYSICAL SECURITIES"). The Offered Securities of any series issued pursuant to the second sentence of Section 2.12(b) of this Indenture in exchange for interests in the Regulation S Global Securities of such series shall be issued in the form of certificated Offered Securities of such series in registered form ("REGULATION S PHYSICAL SECURITIES"). The Regulation S Physical Securities and the U.S. Physical Securities are sometimes collectively referred to herein as the "PHYSICAL SECURITIES." The 144A Global Securities and the Regulation S Global Securities are sometimes collectively referred to as the "GLOBAL OFFERED SECURITIES".
"The definitive Offered Securities of each series shall be typed, printed, lithographed or engraved or produced by any combination of these methods or may be produced in any other manner permitted by the rules of any securities exchange on which the Offered Securities of such series may be listed, or as
determined by the officers of the Issuer executing the Offered Securities of such series, as evidenced by their execution of the Offered Securities of such series.
"(b) Restrictive Legends. (i) Unless and until an Offered Security of any series is exchanged for an Exchange Security of the same series in an exchange offer pursuant to a registration statement which is effective under the Securities Act (whether pursuant to the Registration Rights Agreement or otherwise) or sold or otherwise transferred pursuant to a registration statement which is effective under the Securities Act (whether pursuant to the Registration Rights Agreement or otherwise) or pursuant to Rule 144 under the Securities Act (if available), (A) each 144A Global Security of such series and each U.S. Physical Security of such series shall bear the Private Placement Legend and (B) each Regulation S Physical Security of such series and each Regulation S Global Security of such series shall bear the Private Placement Legend until at least the 41st day after the Closing Date and receipt by the Issuer and the Trustee of a certificate substantially in the form of Exhibit B to the Fourth Supplemental Indenture (and after such 41st day and, upon receipt of such certificate, the Private Placement Legend may be removed from the Regulation S Physical Security of such series or the Regulation S Global Security of such series, as the case may be). Notwithstanding the foregoing, to the extent that a certificate substantially in the form of Exhibit B to the Fourth Supplemental Indenture shall be delivered with respect to a portion (but not all) of the principal amount of a Regulation S Global Security of any series bearing the Private Placement Legend, then the Issuer shall execute and the Trustee shall authenticate and deliver a Regulation S Global Security of such series not bearing the Private Placement Legend in exchange for only such portion of the principal amount of the Regulation S Global Security of such series bearing the Private Placement Legend in respect of which such certification shall have been so delivered, and the Trustee shall reflect on its books and records the date and a decrease in the principal amount of such Regulation S Global Security of such series bearing the Private Placement Legend and a like increase in the principal amount of the Regulation S Global Security of such series not bearing the Private Placement Legend.
"(ii) Each Global Offered Security shall bear the DTC Legend."
(b) Section 2.8 of the Prior Indenture is hereby supplemented, solely insofar as relates to the Offered Securities, by adding the following paragraph at the end of such Section:
"Notwithstanding the foregoing provisions of this Section 2.8, no exchanges of Offered Securities of any series for Exchange Securities of such series shall occur until a registration statement shall have been declared effective by the Commission with respect to the Exchange Securities of such series and unless such exchanges are effected pursuant to such effective registration statement. Any Offered Securities of any series that are exchanged for Exchange Securities of such series shall be cancelled by the Trustee."
(c) Article Two of the Prior Indenture is hereby supplemented and amended, solely insofar as relates to the Offered Securities, by adding at the end thereof the following new Sections 2.12, 2.13 and 2.14:
"Section 2.12. Book-Entry Provisions for Global Securities. (a) The 144A Global Securities of each series and Regulation S Global Securities of each series shall be issued in accordance with the provisions of paragraph (a) of Section 2.2A of this Indenture and, for purposes of Section 2.2A of this Indenture, it is expressly understood and agreed that interests in Global Offered Securities of any series may be exchanged for Physical Securities of such series, and that Physical Securities of any series may be exchanged for interests in Global Offered Securities of such series, as provided in this Section 2.12 and in Section 2.13 of this Indenture.
"(b) Global Offered Securities and interests in Global Offered Securities may be transferred or exchanged, and shall be subject to the restrictions on transfer and exchange, as provided in this Indenture. In addition, U.S. Physical Securities of any series and Regulation S Physical Securities of any series shall be transferred to all beneficial owners of Global Offered Securities of such series in exchange for their beneficial interests in the 144A Global Securities of such series and the Regulation S Global Securities of such series, respectively, under the circumstances set forth in (c)(i), (ii) or (iii) of Section 2.2A of this Indenture.
"(c) Any beneficial interest in a Global Offered Security of any series that is transferred to a Person who takes delivery in the form of an interest in another Global Offered Security of such series will, upon transfer, cease to be an interest in the first such Global Offered Security and become an interest in the other such Global Offered Security and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Offered Security for as long as it remains such an interest.
"(d) In connection with any transfer of a portion of the beneficial interests in a 144A Global Security of any series or Regulation S Global Security of any series to beneficial owners (other than transfers of the entire 144A Global Security of such series or the entire Regulation S Global Security of such series pursuant to the second sentence of paragraph (b) of this Section 2.12), the Trustee shall reflect the date and a decrease in the principal amount of the 144A Global Securities of such series or Regulation S Global Securities of such series, as the case may be, in an amount equal to the principal amount of the beneficial interest in such Global Offered Securities to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more U.S. Physical Securities of such series or Regulation S Physical Securities of such series, as the case may be, of like tenor and principal amount.
"(e) In connection with the transfer of the entire 144A Global Security of any series or Regulation S Global Security of any series to beneficial owners
pursuant to the second sentence of paragraph (b) of this Section 2.12, the 144A Global Security of such series or Regulation S Global Security of such series, as the case may be, shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the 144A Global Security of such series or Regulation S Global Security of such series, as the case may be, an equal aggregate principal amount of U.S. Physical Securities of such series or Regulation S Physical Securities of such series, respectively, of authorized denominations.
"(f) Any U.S. Physical Security of any series delivered in exchange for an interest in the 144A Global Security of such series pursuant to paragraph (b), (d) or (e) of this Section 2.12 shall, except as otherwise provided by paragraph (e) of Section 2.13, bear the legend regarding transfer restrictions applicable to such U.S. Physical Security required by Section 2.1(b).
"(g) Any Regulation S Physical Security of any series delivered in exchange for an interest in the Regulation S Global Security of such series pursuant to paragraph (b), (d) or (e) of this Section 2.12 shall, except as otherwise provided by paragraph (e) of Section 2.13, bear the legend regarding transfer restrictions applicable to such Regulation S Physical Security required by Section 2.1(b).
"(h) The Holder of a Global Offered Security of any series may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Offered Securities of such series.
"(i) Unless the Issuer shall otherwise determine in the exercise
of its sole discretion, (x) Physical Securities of any series may not be
issued upon transfer of or in exchange for interests in Global Offered
Securities of such series except (1) in connection with transfers to
Institutional Accredited Investors or (2) upon the exchange of the
entire Global Offered Securities of such series for Physical Securities
of such series pursuant to the second sentence of paragraph (b) of this
Section 2.12, and (y) upon the transfer of U.S. Physical Securities of
such series to a QIB pursuant to Rule 144A or to a Non-U.S. Person
pursuant to Regulation S, or upon the transfer of Regulation S Physical
Securities of such series to a QIB pursuant to Rule 144A, the transferee
will, unless the entire Global Offered Securities of such series have
been exchanged for Physical Securities of such series pursuant to the
second sentence of paragraph (b) of this Section 2.12, take the Offered
Securities of such series in the form of an interest in the 144A Global
Securities of such series or the Regulation S Global Securities of such
series, as the case may be.
"(j) In addition to the other requirements of this Indenture, the Trustee shall make an appropriate notation on the schedule attached to each Global
Offered Security of any series to reflect any increases or decreases in the principal amount thereof resulting from transfers or exchanges of Offered Securities of such series or of interests in Global Offered Securities of such series made in accordance with this Indenture.
"Section 2.13. Special Transfer Provisions. Unless and until an Offered Security of any series is transferred or exchanged under a registration statement which is effective under the Securities Act (whether pursuant to the Registration Rights Agreement or otherwise) or pursuant to Rule 144 under the Securities Act (if available), the following provisions shall apply:
"(a) Transfers to Non-QIB Institutional Accredited Investors. The following provisions shall apply with respect to the registration of any proposed transfer of an Offered Security of any series to any Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
"(i) The Trustee shall register the transfer of any Offered Security of such series, whether or not such Offered Security bears the Private Placement Legend, if (x) the requested transfer is after the time period referred to in Rule 144(k) under the Securities Act or (y) the proposed transferee has delivered to the Trustee (A) a certificate substantially in the form of Exhibit C to the Fourth Supplemental Indenture and (B) if requested by the Issuer, an opinion of counsel reasonably acceptable to the Issuer to the effect that the transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and, if the Offered Security to be transferred consists of either a Regulation S Physical Security prior to the removal of the Private Placement Legend, an interest in a Regulation S Global Security prior to the removal of the Private Placement Legend, a U.S. Physical Security or a 144A Global Security, the proposed transferor shall have checked the box provided for on the form of such Offered Security, or shall have otherwise advised the Issuer and the Trustee in writing, that the transfer is being been made to an Institutional Accredited Investor purchasing for its own account, or for the account of another Institutional Accredited Investor, in a minimum principal amount of $250,000 of Offered Securities of such series; and
"(ii) Subject to paragraph (c) of this Section 2.13, if the
proposed transferor is an Agent Member holding a beneficial interest in
a Global Offered Security of such series, upon receipt by the Trustee of
(x) the documents, if any, required by paragraph (i) and (y)
instructions given in accordance with the Depositary's and the Trustee's
procedures, the Trustee shall reflect on its book and records the date
and a decrease in the principal amount of such Global Offered Security
of such series in an amount equal to the principal amount of the
beneficial interest in such Global Offered Security of such series to be
transferred, and the Issuer shall execute, and the Trustee shall
authenticate and deliver, one or more U.S. Physical Securities of like
tenor and amount.
"(b) Transfers to QIBs. The following provisions shall apply with respect to the registration of any proposed transfer of a U.S. Physical Security of any series, an interest in a 144A Global Security of any series, a Regulation S Physical Security of any series prior to the removal of the Private Placement Legend or an interest in a Regulation S Global Security of any series prior to the removal of the Private Placement Legend to a QIB (excluding Non-U.S. Persons):
"(i) If the Offered Security of such series to be transferred consists of (x) either (A) a Regulation S Physical Security prior to the removal of the Private Placement Legend or an interest in a Regulation S Global Security of such series prior to the removal of the Private Placement Legend or (B) a U.S. Physical Security of such series, the Trustee shall register the transfer if such transfer is being made by a proposed transferor who has checked the box provided for on the form of Offered Security of such series stating, or has otherwise advised the Issuer and the Trustee in writing, that the sale has been made in compliance with the provisions of Rule 144A to a transferee whom the transferor reasonably believes is a QIB and who has signed the certification provided for on the form of Offered Security of such series stating, or has otherwise advised the Issuer and the Trustee in writing, that it is a QIB and is aware that such Offered Security is being transferred in reliance on Rule 144A and that it is acquiring such Offered Security for its own account or for the account of one or more other QIBs over which it exercises sole investment discretion (in which latter case it has given notice to each such account that such Offered Security is being transferred in reliance on Rule 144A) or (y) an interest in the 144A Global Securities of such series, the transfer of such interest may be effected only through the book entry system maintained by the Depositary.
"(ii) If the proposed transferee is an Agent Member and the Offered Security of such series to be transferred consists of Physical Securities of such series, upon receipt by the Trustee of the documents referred to in clause (i) and instructions given in accordance with the Depositary's and the Trustee's procedures, the Trustee shall reflect on its books and records the date and an increase in the principal amount of the 144A Global Securities of such series in an amount equal to the principal amount of the Physical Securities of such series to be transferred, and the Trustee shall cancel the Physical Securities of such series so transferred.
"(c) Transfers of Interests in the Regulation S Global Securities or Regulation S Physical Securities. The following provisions shall apply with respect to any transfer of interests in the Regulation S Global Securities of any series or Regulation S Physical Securities of any series:
"(i) prior to the removal of the Private Placement Legend from a
Regulation S Global Security of any series or Regulation S Physical
Security of any series pursuant to Section 2.1(b), the Trustee shall
refuse to register such transfer unless such transfer complies with
Section 2.13(b) or Section 2.13(d), as the case may be; and
"(ii) after such removal, the Trustee shall register the transfer of any such Offered Security without requiring any additional certification.
"(d) Transfers to Non-U.S. Persons at Any Time. The following provisions shall apply with respect to any transfer of an Offered Security of any series to a Non-U.S. Person:
"(i) The Trustee shall register any proposed transfer to any Non-U.S. Person if the Offered Security of such series to be transferred is a U.S. Physical Security of such series or an interest in the 144A Global Security of such series only upon receipt of a certificate substantially in the form of Exhibit D to the Fourth Supplemental Indenture from the proposed transferor.
"(ii) (a) If the proposed transferor is an Agent Member holding a beneficial interest in a 144A Global Security of such series, upon receipt by the Trustee of (x) the documents required by paragraph (i) and (y) instructions in accordance with the Depositary's and the Trustee's procedures, the Trustee shall reflect on its books and records the date and a decrease in the principal amount of such 144A Global Security of such series in an amount equal to the principal amount of the beneficial interest in such 144A Global Security to be transferred, and (b) if the proposed transferee is an Agent Member, upon receipt by the Trustee of instructions given in accordance with the Depositary's and the Trustee's procedures, the Trustee shall reflect on its books and records the date and an increase in the principal amount of the Regulation S Global Security of such series in an amount equal to the principal amount of the U.S. Physical Securities of such series or the 144A Global Securities of such series, as the case may be, to be transferred, and the Trustee shall cancel the U.S. Physical Securities of such series, if any, so transferred or decrease the amount of the 144A Global Securities of such series, as the case may be.
"(e) Private Placement Legend. (i) Upon the registration of
transfer, exchange or replacement of Offered Securities of any series
not bearing the Private Placement Legend, the Trustee shall deliver
Offered Securities of such series that do not bear the Private Placement
Legend. Upon the registration of transfer, exchange or replacement of
Offered Securities of any series bearing the Private Placement Legend,
the Trustee shall deliver only Offered Securities of such series that
bear the Private Placement Legend unless (1) the Private Placement
Legend is no longer required by Section 2.1(b), (2) the circumstances
contemplated by paragraphs (a)(i)(x) or (c)(ii) of this Section 2.13
exist, (3) there is delivered to the Trustee an opinion of counsel
reasonably satisfactory to the Issuer and the Trustee to the effect that
neither such legend nor the related restrictions on transfer are
required in order to maintain compliance with the provisions of the
Securities Act, (4) the transaction involves the exchange of Exchange
Securities of such series for Offered Securities of such series pursuant
to a registration statement which is effective under the Securities Act
(whether pursuant to the Registration Rights Agreement or otherwise), or
(5) the transaction involves a transfer of Offered Securities of such
series pursuant to a
registration statement (whether pursuant to the Registration Rights Agreement or otherwise) which is effective under the Securities Act.
"(ii) After a transfer of any Offered Securities of any series during the period of the effectiveness of any registration statement (whether filed pursuant to the Registration Rights Agreement or otherwise) which is effective under the Securities Act with respect to such Offered Securities, all requirements pertaining to the Private Placement Legend on such Offered Securities shall cease to apply and the requirements that any such Offered Securities be issued in global form shall continue to apply.
"(f) General. By its acceptance of any Offered Security bearing the Private Placement Legend, each Holder of such an Offered Security acknowledges the restrictions on transfer of such Offered Security set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Offered Security only as provided in this Indenture. The Trustee shall not register a transfer of any Offered Security unless such transfer complies with the restrictions on transfer of such Offered Security set forth in this Indenture. In connection with any transfer of Offered Securities to an Institutional Accredited Investor or in a transfer being made pursuant to Rule 904 under the Securities Act or pursuant to Rule 144 under the Securities Act (if available), each Holder agrees by its acceptance of the Offered Securities to furnish the Trustee such certifications, legal opinions or other information as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act; provided that the Trustee shall not be required to determine (but may conclusively rely on a determination made by the Issuer with respect to) the sufficiency of any such certifications, legal opinions or other information.
"In case of any transfer or exchange of Offered Securities or
interests in Offered Securities bearing the Private Placement Legend,
the procedures and requirements for which are not addressed in detail in
this Section 2.13 or elsewhere in this Indenture, such transfer or
exchange will be subject to such procedures and requirements as may be
reasonably prescribed by the Issuer from time to time (and which shall
be consistent with the procedures and requirements set forth in this
Section 2.13) and, in the case of a transfer or exchange involving a
Global Offered Security or an interest therein, the procedures of the
Depositary. In case of any request for the removal of the Private
Placement Legend from an Offered Security, the procedures and
requirements for which are not addressed in detail in this Indenture,
the Issuer may permit the removal of such legend upon the receipt of
such legal opinions, certificates and other documents as it may
reasonably require to establish that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance
with the Securities Act.
"The Trustee shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.12 or this
Section 2.13 in accordance with its customary procedures. The Issuer
shall have the right to
inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Trustee.
"In the case of any transfer of a Physical Security (other than a
transfer or exchange under a registration statement which is effective
under the Securities Act (whether pursuant to the Registration Rights
Agreement or otherwise)) prior to the end of the time period under Rule
144(k), the transferor shall check the box provided for on the form of
such Physical Security, or otherwise advise the Issuer and Trustee in
writing, as to the manner of such transfer and submit such Physical
Security to the Trustee."
SECTION 4. Amendments to Article Three and Article Five.
(a) Article 3 of the Prior Indenture is hereby amended by inserting the following new Section 3.9 in appropriate numerical order:
"SECTION 3.9 Covenant to Provide Guarantee; Termination of
Guarantee. The following provisions shall apply to the Securities of
each series (including, without limitation, each series of Securities
Outstanding on the date of the Fourth Supplemental Indenture or
originally issued on the date of the Fourth Supplemental Indenture)
unless otherwise specifically provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to
Section 2.3.
"(a) The Issuer will not cause or permit the Guarantor to guarantee, directly or indirectly (a "BANK GUARANTEE"), any indebtedness, borrowings or other obligations of the Issuer under any Credit Agreement unless:
"(1) the GUARANTOR, the Issuer and the Trustee shall execute and deliver an indenture supplemental hereto (a "SUPPLEMENTAL INDENTURE"), containing provisions substantially in the form of Exhibit E attached to the Fourth Supplemental Indenture and which provisions shall be added as a new Article of this Indenture, pursuant to which the Guarantor shall unconditionally guarantee the due and punctual payment of the principal of, and premium, if any, and interest on, and any sinking fund payments with respect to, all of the Securities and any Coupons appertaining thereon when due, whether such Securities are Outstanding on the date of such Supplemental Indenture or are thereafter issued (other than any Securities of a series (or Coupons appertaining thereto) if the terms of the Securities of such series, as set forth in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3, expressly provide that the Securities of such series are not entitled to the benefits of this Section 3.9(a)), and
"(2) such Supplemental Indenture shall have been executed and delivered by the Guarantor, the Issuer and the Trustee and shall have
become effective no later than the time that such Bank Guarantee of the Guarantor shall become effective;
"provided that the Issuer will not be required to make a notation on the
Securities of any series to reflect the Guarantee or to endorse the
Guarantee on the Securities of any series if the Securities of such
series were originally issued prior to the date of such Supplemental
Indenture; and provided, further, that, upon the earlier of (a)
termination of all of the Guarantor's Bank Guarantees and (b)(i) the
effectiveness of the Weyerhaeuser/Willamette Merger and (ii) the
termination of the separate corporate existence of the Guarantor as a
result of such merger, and, in the case of both clause (a) and (b),
delivery by the Issuer to the Trustee of the Officers' Certificate and
Opinion of Counsel required by Section 3.9(n), the Guarantor shall be
released from all of its obligations under this Indenture (including,
without limitation, such Supplemental Indenture) and the Guarantee
(including, without limitation, the Guarantee endorsed on any Security)
and the Guarantee shall terminate (provided that the Issuer's
obligations under this Section 3.9(a) shall remain in effect (and, as a
result, the Issuer and the Guarantor may thereafter be required to enter
into another Supplemental Indenture pursuant to this Section 3.9(a))
unless and until the Issuer's obligations under this Section 3.9(a)
shall be terminated pursuant to Section 3.9(b)).
"(b) The provisions set forth in Section 3.9(a) shall terminate upon (1) the effectiveness of the Weyerhaueser/Willamette Merger and (2) the termination of the separate corporate existence of the Guarantor as a result of such merger; provided that the Issuer shall have delivered to the Trustee the Officers' Certificate and Opinion of Counsel required by Section 3.9(n).
"(c) In the event that the covenant set forth in Section 3.9(a) is terminated pursuant to Section 3.9(b) and, thereafter, the Weyerhaeuser/Willamette Merger is set aside or reversed or the separate corporate existence of the Guarantor is reinstated, then, to the fullest extent permitted by applicable law:
"(1) Section 3.9(a) shall be automatically reinstated, and
"(2) if the Guarantor shall have been released from its obligations under this Indenture and the Guarantee with respect to the Securities of any series upon the effectiveness of the Weyerhaeuser/Willamette Merger, the Guarantor's obligations under this Indenture (including, without limitation, any applicable Supplemental Indenture) and the Guarantee with respect to the Securities of such series and any Coupons appertaining thereto (including, without limitation, any Guarantee endorsed on a Security of such series) shall be automatically reinstated,
"all as if the Weyerhaeuser/Willamette Merger had not taken place but subject thereafter to termination of the covenant set forth in Section 3.9(a) upon the terms and conditions set forth in Section 3.9(b) and to the release of the Guarantor's
obligations under this Indenture (including, without limitation, any applicable Supplemental Indenture) and the Guarantee (including, without limitation, the Guarantee endorsed on any Security) upon the terms and conditions set forth in Section 3.9(a). If the Guarantor's obligations under this Indenture are reinstated as provided in the immediately preceding sentence, then the Events of Default set forth in Section 3.9(e), the amendments, supplements and restatements to this Indenture effected pursuant to Sections 3.9(f), (g), (h) and (j), and the parenthetical clause added to this Indenture pursuant to Section 4(b) of the Fourth Supplemental Indenture shall also be automatically reinstated but subject thereafter to termination of such Events of Default, such amendments, supplements and restatements effected pursuant to Sections 3.9(f), (g), (h) and (j) and the parenthetical clause added to this Indenture pursuant to Section 4(b) of the Fourth Supplemental Indenture upon the terms and conditions set forth in Section 3.9(k). The Issuer shall provide the Trustee with prompt written notice of any such reinstatement.
"(d) If (i) this Indenture shall cease to be of further effect with respect to the Securities of any series upon compliance by the Issuer with the provisions of Section 10.1(A) hereof with respect to the Securities of such series or (ii) the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the Securities of any series and any Coupons appertaining thereto upon compliance by the Issuer with the provisions of Section 10.1(B) hereof with respect to the Securities of such series, then (unless the terms of the Securities of such series, as set forth in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3, expressly provide otherwise) the Guarantor concurrently shall be released, automatically and without further action on the part of the Issuer, the Guarantor or the Trustee, from all of its obligations under this Indenture (including, without limitation, any applicable Supplemental Indenture) with respect to the Securities of such series and any Coupons appertaining thereto and from all of its obligations under its Guarantee with respect to the Securities of such series and any Coupons appertaining thereto (including, without limitation, the Guarantee endorsed on any Security of such series); provided that such release shall not affect the Guarantor's obligations under this Indenture (including, without limitation, any applicable Supplemental Indenture) with respect to the Securities of any other series and any Coupons appertaining thereto or its Guarantee of the Securities of any other series or any Coupons appertaining thereto (including, without limitation, the Guarantee endorsed on any such Security), all of which shall remain in full force and effect.
"(e) In the event that the Guarantor enters into a Supplemental
Indenture pursuant to Section 3.9(a), such Supplemental Indenture will
also provide that the period appearing at the end of clause (g) of
Section 5.1 of this Indenture shall be deleted and replaced with "; or"
and that the following additional clauses shall be added immediately
after such clause (g), such additional clauses to be designated as
clauses (h), (i), and (j) of Section 5.1:
`(h) the Guarantor shall deny that it has any further
liability under its Guarantee of all or any of the Securities of
such series or any Coupons appertaining thereto or gives notice
to that effect or the Guarantor's Guarantee of all or any of the
Securities of such series or any Coupons appertaining thereto
shall cease for any reason to be in full force and effect or the
Guarantor's Guarantee of all or any of the Securities of such
series or any Coupons appertaining thereto is declared or judged
unenforceable or invalid in a final judgment or order issued by
any court or governmental authority of competent jurisdiction (in
each case other than by reason of the termination or release of
such Guarantee in accordance with the provisions of this Section
3.9), provided that this clause (h) shall not be applicable to
the Securities of such series if the terms of the Securities of
such series, as set forth in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to
Section 2.3, expressly provide that the Securities of such series
are not entitled to the benefit of Section 3.9(a); or
`(i) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Guarantor in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or similar official) of the Guarantor or for any substantial part of its property or ordering the winding up or liquidation of its affairs, and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days, provided that this clause (i) shall not be applicable to the Securities of such series if the terms of the Securities of such series, as set forth in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3, expressly provide that the Securities of such series are not entitled to the benefit of Section 3.9(a); or
`(j) the Guarantor shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Guarantor or for any substantial part of
its property, or make any general assignment for the benefit of
creditors, provided that this clause (j) shall not be applicable
to the Securities of such series if the terms of the Securities
of such series , as set forth in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to
Section 2.3, expressly provide that the
Securities of such series are not entitled to the benefit of
Section 3.9(a).'
"(f) In the event that the Guarantor enters into a Supplemental Indenture pursuant to Section 3.9(a), the Supplemental Indenture shall also provide that the second paragraph of Section 5.1 of this Indenture shall be amended and restated to read in full as follows:
`If an Event of Default described in clause (a), (b), (c),
(d), (h), (i) or (j) above (if the Event of Default under clause
(d), (h), (i) or (j), as the case may be, is with respect to less
than all series of Securities then Outstanding) occurs and is
continuing, then, and in each and every such case, unless the
principal of all of the Securities of such series shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may
declare the entire principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such
series) of all Securities of such series and the interest accrued
thereon, if any, to be due and payable immediately, and upon any
such declaration the same shall become immediately due and
payable; provided that neither the Trustee nor the Holders of the
Securities of any series shall have the right to declare the
Securities of such series to be due and payable as aforesaid upon
the occurrence of an Event of Default described in clause (h),
(i) or (j) above if the terms of the Securities of such Series,
as set forth in a Board Resolution, Officers' Certificate or
indenture supplemental hereto provided pursuant to Section 2.3,
expressly provide that the Securities of such series are not
entitled to the benefit of Section 3.9(a). If an Event of Default
described in clause (d), (h), (i) or (j) above (if the Event of
Default under clause (d), (h), (i) or (j), as the case may be, is
with respect to all series of Securities then Outstanding), (e)
or (f) occurs and is continuing, then and in each and every such
case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by
notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if any
Securities are Original Issue Discount Securities, such portion
of the principal as may be specified in the terms thereof) of all
the Securities then Outstanding and interest accrued thereon, if
any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.'
"(g) In the event that the Guarantor enters into a Supplemental Indenture pursuant to Section 3.9(a), such Supplemental Indenture shall also provide that the first paragraph of Section 5.10 of this Indenture shall be amended and restated to read in full as follows:
`SECTION 5.10 Waiver of Past Defaults. Prior to the
declaration of the acceleration of the maturity of the Securities
of any series as provided in Section 5.1, the Holders of a
majority in aggregate principal amount of the Securities of such
series at the time Outstanding may on behalf of the Holders of
all the Securities of such series waive any past default or Event
of Default described in clause (c) of Section 5.1 (or, in the
case of an event specified in clause (d), (h), (i) or (j) of
Section 5.1 which relates to less than all series of Securities
then Outstanding, the Holders of a majority in aggregate
principal amount of the Securities then Outstanding affected
thereby (each series voting as a separate class) may waive any
such default or Event of Default, or, in the case of an event
specified in clause (d), (h), (i) or (j) (if the Event of Default
under clause (d), (h), (i) or (j), as the case may be, relates to
all series of Securities then Outstanding), (e) or (f) of Section
5.1 the Holders of Securities of a majority in principal amount
of all the Securities then Outstanding (voting as one class) may
waive any such default or Event of Default), and its consequences
except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the
Holder of each Security affected. In the case of any such waiver,
the Issuer, the Trustee and the Holders of the Securities of such
series shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any
subsequent or other default or impair any right consequent
thereon.'
"(h) In the event that the Guarantor enters into a Supplemental Indenture pursuant to Section 3.9(a), such Supplemental Indenture shall also provide that Section 5.12 of this Indenture shall be amended and restated to read in full as follows:
`SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or Coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clause (d), (h), (i) or (j) of Section 5.1 (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating to or arising under clause (d), (h), (i) or (j) (if the suit under clause (d), (h), (i) or (j), as the case may be, relates to all the Securities then Outstanding), (e) or (f) of Section 5.1, 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security or any dated fixed for redemption.'
"(i) In the event that the additional Events of Default set forth in Section 3.9(e) shall be added to this Indenture, the Trustee will not be charged with knowledge of the occurrence of any Event of Default set forth in clause (h) of Section 5.1 of this Indenture unless a Responsible Officer assigned to its Corporate Trust Office has actual knowledge thereof or unless the Trustee has received written notice thereof from the Issuer or a Holder.
"(j) In the event that the Guarantor enters into a Supplemental Indenture pursuant to Section 3.9(a), such Supplemental Indenture shall also provide for Section 8.2 of the Indenture to be supplemented by adding the following text at the end of clause (a) of the first paragraph of such Section 8.2 immediately before the words "without the consent of the Holder of each Security so affected":
`, or change in any manner adverse to the interest of the Holder of any Outstanding Security or Coupon appertaining thereto the terms and conditions of the obligations of the Guarantor under this Indenture or any Guarantee in respect of the due and punctual payment of the principal thereof and interest thereon or any sinking fund or analogous payments in respect thereof or release the Guarantor from its obligations under this Indenture or any Guarantee of any such Security or any Coupon appertaining thereto,'
"(k) If the Guarantor is released from its obligations under this Indenture with respect to the Securities of any series and from its obligations under its Guarantee with respect to the Securities of such series pursuant to Section 3.9(a) or 3.9(d) above, then, automatically and without further action on the part of the Issuer, the Guarantor or the Trustee, the additional Events of
Default added pursuant to Section 3.9(e) shall cease to be effective with respect to the Securities of such series (provided that such cessation shall not affect such Events of Default insofar as they pertain to any other series of Securities), and, if the covenant set forth in Section 3.9(a) shall terminate pursuant to Section 3.9(b), then, automatically and without further action on the part of the Issuer, the Guarantor or the Trustee, the additional Events of Default added pursuant to Section 3.9(e), the parenthetical clause added to this Indenture pursuant to Section 4(b) of the Fourth Supplemental Indenture and the amendments, supplements and restatements to this Indenture effected pursuant to Sections 3.9(f), (g), (h) and (j) shall terminate and cease to be effective as to all series of Securities, but subject to reinstatement of such Events of Default, parenthetical clause and amendments, supplements and restatements upon the terms and conditions set forth in Section 3.9(c).
"(l) As used in this Indenture, the following terms have the meanings specified below:
"Credit Agreements" means:
"(1) the 364-Day Revolving Credit Facility Agreement dated as of February 8, 2002 among the Issuer, Weyerhaeuser Real Estate Company, the lenders named therein and the other parties thereto and any related notes, letters of credit and guarantees;
"(2) the Competitive Advance and Revolving Credit Facility Agreement dated as of February 8, 2002 among the Issuer, the lenders, swingline bank and fronting bank named therein and the other parties thereto, and any related notes, letters of credit and guarantees, and
"(3) the Bridge Revolving Credit Facility Agreement dated as of February 8, 2002 among the Issuer, the lenders named therein and the other parties thereto and any related notes, letters of credit and guarantees,
"in each case as the same may be amended, modified, supplemented or restated or refunded, refinanced, restructured, replaced, renewed, repaid or extended from time to time (whether with the original agents, lenders and other parties thereto or other agents, lenders or other parties thereto and whether under the original such Credit Agreement or any other credit agreements or otherwise), and including any of the foregoing that shall extend the maturity or increase the amount of borrowings or available borrowings thereunder.
"Guarantee" means the Guarantor's guarantee set forth in a Supplemental Indenture executed pursuant to Section 3.9(a) and any guarantee of a Security or any Coupon appertaining thereto by the Guarantor that is endorsed on a Security authenticated and made available for delivery pursuant to this Indenture, collectively, or all or any such guarantees, as the context shall require.
"Guarantor" means Willamette Industries, Inc., an Oregon corporation.
"Weyerhaeuser/Willamette Merger" means a statutory merger pursuant to which the Guarantor shall be merged with and into the Issuer, with the Issuer being the surviving corporation and whereupon the separate corporate existence of Willamette shall cease.
"(m) At the time of execution and delivery of any Supplemental
Indenture pursuant to Section 3.9(a) above, the Issuer shall deliver to
the Trustee, in addition to any documents which may be required by
Section 8.4, 11.5 or any other applicable provision of this Indenture,
an Officers' Certificate to the effect that such Supplemental Indenture
complies with the requirements of this Section 3.9 and an Opinion of
Counsel to the effect that such Supplemental Indenture complies with the
provisions of this Section 3.9 and has been duly authorized, executed
and delivered by, and is a valid and binding obligation of, the Issuer
and the Guarantor, enforceable against the Issuer and the Guarantor in
accordance with its terms, and if, the Issuer shall issue Securities
with Guarantees in substantially the form attached as Exhibit F to the
Fourth Supplemental Indenture endorsed thereon, the Issuer shall deliver
to the Trustee (prior to the original issuance of such Securities), and
(subject to Section 6.1) the Trustee shall be fully protected in relying
upon, an Opinion of Counsel to the effect that the Guarantees endorsed
on such Securities have been duly authorized by the Guarantor and, when
such Guarantees have been duly executed by the Guarantor and such
Securities have been duly executed by the Issuer and authenticated and
delivered by the Trustee in the manner and subject to any conditions
specified in such Opinion of Counsel, such Guarantees will be valid and
binding obligations of the Guarantor, enforceable against the Guarantor
in accordance with their respective terms, in each case subject to
customary bankruptcy, equitable remedies, public policy and other
exceptions which shall be reasonably satisfactory to the Trustee. In the
event that the legal counsel rendering such Opinion of Counsel is not
admitted to practice in the State of New York, then such Opinion of
Counsel may state that, in rendering such opinion, such counsel has
assumed that the laws of the State of New York are the same as the laws
of the Issuer's or the Guarantor's, as the case may be, jurisdiction of
organization.
"(n) It shall be a condition to (i) the Guarantor's release from
its obligations under this Indenture (including any applicable
Supplemental Indenture) and the Guarantee and the termination of the
Guarantee pursuant to Section 3.9(a), (ii) the termination of the
provisions set forth in Section 3.9(a) pursuant to Section 3.9(b), and
(iii) the Guarantors' release from its obligations under this Indenture
(including any applicable Supplemental Indenture) and the Guarantee and
the termination of its Guarantee with respect to the Securities of any
series pursuant to Section 3.9(d), as the case may be, that the Issuer
shall have theretofore delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each of which shall comply with Section 11.5,
to the effect that all conditions precedent herein provided relating to
such termination and/or release have been complied with and, in the case
of any such release pursuant to Section 3.9(a), an Opinion of Counsel to
the effect that any Bank Guarantees provided by the Guarantor have
terminated and, in the case of any such
termination pursuant to Section 3.9(b) (but only if the Guarantor shall have provided one or more Bank Guarantees) an Opinion of Counsel to the effect that such Bank Guarantees have terminated, and, upon delivery thereof and satisfaction by the Issuer of the other applicable conditions set forth in this Section 3.9 and any other conditions provided in this Indenture, the Trustee, at the expense of the Issuer and upon the Issuer's request, shall execute proper instruments (substantially in the forms provided by the Issuer) acknowledging such termination or release.
(b) Section 5.1 of the Prior Indenture is hereby supplemented by adding the following parenthetical clause in the 8th line of clause (d) of the first paragraph of such Section 5.1, such text to be inserted immediately after the words "90 days" and immediately before the words "after there has":
"(or 10 days in the case of the covenant set forth in Section 3.9 of this Indenture, unless this parenthetical clause shall have been terminated pursuant to Section 3.9(k), in which case this parenthetical clause shall cease to be effective for all purposes of this Indenture, or unless the terms of the Securities of such series, as set forth in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3, expressly provide that the Securities of such series are not entitled to the benefits of Section 3.9(a), in which case this parenthetical clause shall not be applicable to the Securities of such series)".
SECTION 5. Governing Law; Fourth Supplemental Indenture. This Fourth Supplemental Indenture shall be deemed to be a contract made under the laws of the State of New York and for all purposes shall be construed in accordance with the laws of the State of New York. The terms and conditions of this Fourth Supplemental Indenture shall be, and be deemed to be, part of the terms and conditions of the Indenture for any and all purposes. Other than as amended and supplemented by this Fourth Supplemental Indenture, the Indenture is in all respects ratified and confirmed.
SECTION 6. Acceptance by Trustee. The Trustee hereby accepts this Fourth Supplemental Indenture and agrees to perform the same upon the terms and conditions set forth in the Indenture.
SECTION 7. Counterparts. This Fourth Supplemental Indenture may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one instrument.
SECTION 8. Headings. The headings of this Fourth Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 9. Trustee Not Responsible for Recitals. The recitals herein contained are made by the Issuer and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fourth Supplemental Indenture.
SECTION 10. Separability. In case any one or more of the provisions contained in this Fourth Supplemental Indenture or in the Offered Securities shall for any reason be held to be invalid, illegal or unenforceable in any respect, then, to the fullest extent permitted by applicable law, such invalidity, illegality or unenforceability shall not affect any other provisions of this Fourth Supplemental Indenture or of the Offered Securities, but this Fourth Supplemental Indenture and the Offered Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed by their respective authorized officers as of the date first written above.
WEYERHAEUSER COMPANY,
JPMORGAN CHASE BANK, as trustee,
Title:
Attest:
Exhibit A-1
[FORM OF TRANCHE 1 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-1-1
[Include the following legend (the "DTC Legend") only in Global Offered Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered Securities --] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BB 9
[Reg S: U96224 AB 3]
[A/I: 962166 BG 8]
[Exchange Note: 962166 BH 6]
WEYERHAEUSER COMPANY
Floating Rate Note due 2003
|
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes any successor thereto under the Indenture referred to below), for value
received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED SECURITIES
- Cede & Co.], or registered assigns, at the office or agency of the Issuer
maintained for such purpose in the Borough of Manhattan, The City of New York,
the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED SECURITIES
-- or such other principal amount as is set forth on Schedule A hereto] on
September 15, 2003, in such coin or currency of the United States of America as
at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest on said principal sum at said office or
agency, quarterly in arrears on March 15, June 15, September 15 and December 15
of each year (each, an "Interest Payment Date"), commencing June 15, 2002, and
at final maturity, in like coin or currency, at a per annum rate equal to LIBOR
(determined in the manner described below) plus 1.125% from the Interest Payment
Date next preceding the date of this Note to which interest has been paid or
duly provided for, unless the date hereof is a date to which interest has been
paid or duly provided for, in which case from the date of this Note, or unless
no interest has been paid or duly provided for on these Notes, in which case
from March 12, 2002, until payment of said principal sum has been made or duly
provided for; provided that, if this Note is not a Global Security, payment of
interest may be made at the option of the Issuer by check mailed to the address
of the Person entitled thereto as such address shall appear on the Security
register; and provided, further, that if this Note is a Global Security
registered in the name of a Depositary or its nominee, payment of interest shall
be made to the Depositary or its nominee, as the case may be, in accordance with
the Depositary's procedures as in effect from time to time. Notwithstanding the
A-1-2
foregoing, if the date hereof is after a Regular Record Date (as defined below) and before the following Interest Payment Date, this Note shall bear interest from such Interest Payment Date; provided, that if the Issuer shall default in the payment of interest due on such Interest Payment Date, then this Note shall bear interest from the next preceding Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on these Notes, from March 12, 2002. The interest so payable on any Interest Payment Date will, subject to certain exceptions provided in the Indenture referred to below, be paid to the Person in whose name this Note is registered at the close of business on the 15th calendar day (whether or not a Floating Rate Business Day, as defined below) next preceding such Interest Payment Date (a "Regular Record Date"); provided that interest payable on the final maturity date of this Note will be paid to the Person to whom the principal hereof is paid. If any Interest Payment Date, other than an Interest Payment Date falling on the final maturity date of this Note, would otherwise be a day that is not a Floating Rate Business Day, that Interest Payment Date will be moved to, and will be, the next succeeding Floating Rate Business Day, except that, if that next succeeding Floating Rate Business Day falls in the next succeeding calendar month, that Interest Payment Date instead will be moved to, and will be, the immediately preceding Floating Rate Business Day. If the final maturity date of this Note falls on a day that is not a Floating Rate Business Day, then payments of the principal of and interest on this Note that are due on the final maturity date need not be made on the final maturity date, but may be made on the next succeeding Floating Rate Business Day with the same force and effect as if made on the final maturity date and no interest will accrue for the period after the final maturity date.
Interest on this Note will accrue from, and including, March 12, 2002 to, but excluding, the Interest Payment Date falling in June 2002 and then from, and including, the immediately preceding Interest Payment Date to which interest has been paid or duly provided for on this Note to, but excluding, the next Interest Payment Date or the final maturity date, as the case may be. Interest on this Note will be calculated on the basis of the actual number of days in the applicable period divided by 360.
"Floating Rate Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York; provided, that such day must also be a London Business Day. "London Business Day" means any day on which dealings in deposits in United States dollars are transacted in the London interbank market.
The interest rate on the Notes for the initial Interest Period (as defined below) commencing March 12, 2002 will be set, and for each subsequent Interest Period will be reset, as of the first day of such Interest Period (the date on which that interest rate is set for the initial Interest Period or reset for any subsequent Interest Period is referred to as an "Interest Reset Date"). The interest rate in effect on any day that is not an Interest Reset Date will be the interest rate determined as of the Interest Determination Date pertaining to the immediately preceding Interest Reset Date, and the interest rate in effect on any day that is an Interest Reset Date will be the interest rate determined as of the Interest Determination Date (as defined below) pertaining to that Interest Reset Date.
"Interest Period" means the period beginning on, and including, an Interest Payment Date to, but excluding, the next succeeding Interest Payment Date or the final maturity date, as the case may be, except that the first Interest Period will be the period beginning on, and including, March 12, 2002 to, but excluding, the Interest Payment Date falling in June 2002.
"Interest Determination Date" means, with respect to any Interest Reset Date, the second London Business Day preceding that Interest Reset Date.
The Calculation Agent (as defined in the Indenture referred to below) will determine LIBOR in accordance with the following provisions:
"LIBOR" means:
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(1) With respect to any Interest Determination Date, LIBOR will be the rate for deposits in United States dollars having a maturity of three months commencing on the first day of the applicable Interest Period that appears on Telerate Page 3750 as of 11:00 A.M., London time, on that Interest Determination Date. If no rate appears as aforesaid, LIBOR with respect to that Interest Determination Date will be determined in accordance with the provisions described in (2) below.
(2) With respect to an Interest Determination Date on which no rate appears on Telerate Page 3750 as specified in (1) above, the Calculation Agent will request the principal London offices of each of four major banks in the London interbank market (the "reference banks"), selected by the Calculation Agent after consultation with the Issuer, to provide the Calculation Agent with its offered quotation for deposits in United States dollars for the period of three months, commencing on the first day of the applicable Interest Period, to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that Interest Determination Date and in a principal amount equal to an amount of at least $1,000,000 that is representative for a single transaction in United States dollars in that market at that time. If at least two quotations are provided, then LIBOR on that Interest Determination Date will be the arithmetic mean of those quotations as calculated by the Calculation Agent. If fewer than two quotations are provided by the reference banks, then LIBOR on that Interest Determination Date will be the arithmetic mean as calculated by the Calculation Agent of the rates quoted at approximately 11:00 A.M., New York City time, on that Interest Determination Date by three major banks in The City of New York, selected by the Calculation Agent after consultation with the Issuer, for loans in United States dollars to leading European banks having a three month maturity and in a principal amount equal to an amount of at least $1,000,000 that is representative for a single transaction in United States dollars in that market at the time; provided, however, that if the banks selected by the Calculation Agent are not providing quotations in the manner described in this sentence, LIBOR determined as of that Interest Determination Date will be LIBOR as in effect on that Interest Determination Date.
"Telerate Page 3750" means the display designated as "Page 3750" on Bridge Telerate, Inc., or such other page as may replace the 3750 page on that service or such other service or services as may be nominated by the British Bankers' Association for the purpose of displaying the London interbank rates of major banks for United States dollars.
The interest rate on this Note will in no event be higher than the maximum rate permitted by New York law as the same may be modified by United States law of general application.
All percentages resulting from any calculation on the Notes will be rounded to the nearest one hundred-thousandth of a percentage point, with five-one millionths of a percentage point rounded upwards. All dollar amounts used in or resulting from any calculation on the Notes will be rounded to the nearest cent, with one-half cent being rounded upwards.
All calculations made by the Calculation Agent for the purposes of calculating interest on the Notes shall be conclusive and binding on the Holders and on the Issuer, absent manifest error.
This Note is one of a duly authorized issue of Securities of the Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the "Original Indenture"), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental Indenture"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as
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trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of the series of Securities designated on the face hereof (the "Notes").
The Notes are not subject to redemption at the option of the Issuer at any time prior to final maturity.
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof and accrued and unpaid interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall, among other things, (i) extend the final maturity of any Security, or reduce the principal amount thereof or reduce the rate or extend the time of payment of any interest thereon, or reduce any amount payable on the redemption thereof, or make the principal thereof or the interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities the Holders of which are required to consent to any such supplemental indenture without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default, prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series (or, in the case of certain defaults or Events of Default, all or certain series of the Securities) may on behalf of the Holders of all the Securities of such series (or all or certain series of the Securities, as the case may be) waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default or Event of Default in respect of the payment of the principal of or premium, if any, or interest on any of the Securities or a default or Event of Default in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Security affected. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor or on registration of transfer hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and interest on this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations upon surrender of the Notes to be exchanged at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York in the manner and subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
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The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of Notes shall have all the rights set forth in the Registration Rights Agreement dated as of March 12, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. (as the same may be amended or supplemented from time to time in accordance with its terms, the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders of the Notes will, subject to certain exceptions and on the terms and subject to the conditions specified in the Registration Rights Agreement, have the right to exchange their Notes for a like principal amount of Exchange Securities of the same series issued under the Indenture, which Exchange Securities will have been registered under the Securities Act. The Holders of the Notes shall be entitled to receive certain additional interest on the Notes in the event such exchange offer is not consummated or upon certain other conditions, all as set forth in the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and, subject to the provisions of the first paragraph hereof, interest hereon and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or in any Note, or because of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law.
Terms used in this Note which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged from its obligations with respect to the Notes, subject to exceptions, if the Issuer deposits with the Trustee cash or U.S. Government Obligations in the amount and in the manner, and satisfies certain other conditions, as in the Indenture provided.
This Note shall not be valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee under the Indenture by manual signature of an authorized officer of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to be signed and its corporate seal attested by the manual or facsimile signatures of its duly authorized officers and has caused its corporate seal (or a facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
[SEAL]
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and referred to in the within mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
* The signatures and/or the Trustee's certificate of authentication may be moved to appear on the same page as the principal amount of this Security.
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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:
TEN COM--as tenants in common UNIF GIFT MIN ACT -- _______Custodian __________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act___________________________
(State)
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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
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.
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[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this Floating Rate Note due 2003 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below):
[ ] (a) The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act.
[ ] (b) The Specified Securities are being acquired for the Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in compliance with Rule 144A ("Rule 144A") under the Securities Act to a Person the Transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) that is purchasing the Specified Securities for its own account or for the account of another "qualified institutional buyer", in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to and in compliance with an exemption from the registration requirements of the Securities Act provided by Rule 144 under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the "United States" (as defined in Regulation S ("Regulation S") under the Securities Act) in an "offshore transaction" (as defined in Regulation S) in compliance with Rule 904 under the Securities Act.
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This Certificate and the statements contained herein are made for the benefit of the Trustee, the Issuer and the initial purchasers, if any, in the initial offering of the Notes.
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Date:
-------------------- ----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
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if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933 (the "Securities Act") and is aware that the Specified Securities (as defined above) are being transferred in reliance on 144A under the Securities Act, (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other qualified institutional buyers over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned by one of its executive officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act and may not be transferred except in accordance with the resale and other transfer restrictions set forth on the face thereof.
Date:
-------------------- ----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
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[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars ($_). The following increases or decreases in the principal amount of this Global Security have been made:
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Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
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Exhibit A-2
[FORM OF TRANCHE 2 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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[Include the following legend (the "DTC Legend") only in Global Offered Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered Securities--] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BC 7]
[Reg S: U96224 AC 1]
[A/I: 962166 BJ 2]
[Exchange Note: 962166 BK 9]
WEYERHAEUSER COMPANY
5.50% Note due 2005
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term includes any successor thereto under the Indenture referred to below), for value received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--or such other principal amount as is set forth on Schedule A hereto] on March 15, 2005, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually in arrears on March 15 and September 15 of each year, commencing September 15, 2002, and at final maturity on said principal sum at said office or agency, in like coin or currency, at the rate of 5.50% per annum from the March 15 or September 15, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on these Notes, in which case from March 12, 2002 until payment of said principal sum has been made or duly provided for; provided that, if this Note is not a Global Security, payment of interest may be made at the option of the Issuer by check mailed to the address of the Person entitled thereto as such address shall appear on the Security register; and provided, further, that if this Note is a Global Security registered in the name of a
A-2-2
Depositary or its nominee, payment of interest shall be made to the Depositary or its nominee, as the case may be, in accordance with the Depositary's procedures as in effect from time to time. Notwithstanding the foregoing, if the date hereof is after March 1 or September 1, as the case may be, and before the following March 15 or September 15, this Note shall bear interest from such March 15 or September 15; provided, that if the Issuer shall default in the payment of interest due on such March 15 or September 15, then this Note shall bear interest from the next preceding March 15 or September 15 to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on these Notes, from March 12, 2002. The interest so payable on any March 15 or September 15 will, subject to certain exceptions provided in the Indenture referred to below, be paid to the person in whose name this Note is registered at the close of business on the March 1 or September 1, as the case may be, next preceding such March 15 or September 15. Interest on this Note shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
This Note is one of a duly authorized issue of Securities of the Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the "Original Indenture"), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental Indenture"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of the series of Securities designated on the face hereof (the "Notes").
The Notes may be redeemed, in whole or from time to time in part, at the option of the Issuer on any date at a redemption price equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the applicable Redemption Date) discounted to that Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid interest on the principal amount of the Notes being redeemed to such Redemption Date; provided, however, that payments of interest on the Notes that are due and payable on or prior to a date fixed for redemption of Notes will be payable to the Holders of those Notes registered as such at the close of business on the relevant record dates according to their terms and the terms and provisions of the Indenture. Any such redemption shall be effected in accordance with the terms and conditions set forth in the Indenture.
As used in this Note, the following terms have the meanings set forth below:
"Treasury Rate" means, with respect to any Redemption Date for the Notes, (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by
A-2-3
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Final Maturity Date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption Date. As used in the immediately preceding sentence and in the definition of "Reference Treasury Dealer Quotations" below, the term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date for the Notes, the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date for the Notes, (1) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2005.
"Independent Investment Banker" means, with respect to any Redemption Date for the Notes, Morgan Stanley & Co. Incorporated and its successors or J.P. Morgan Securities Inc. and its successors, whichever shall be selected by the Trustee after consultation with the Issuer, or, if both such firms or the respective successors, if any, to such firms, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee after consultation with the Issuer.
"Redemption Date" means, with respect to any Note or portion thereof to be redeemed, the date fixed for such redemption pursuant to the Indenture and the Notes.
"Reference Treasury Dealer" means, with respect to any Redemption Date for the Notes, Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. and their respective successors (provided, however, that if any such firm or any such successor, as the case may be, shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee, after consultation with the Issuer, shall substitute therefor another Primary Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date for the Notes, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.
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Notice of any redemption will be mailed at least 30 days but not more than 60 days before the applicable Redemption Date to each Holder of the Notes to be redeemed at the Holder's registered address. If less than all the Notes are to be redeemed at the option of the Issuer, the Trustee will select, in a manner it deems fair and appropriate, the Notes, or portions of the Notes, to be redeemed.
Unless the Issuer defaults in payment of the redemption price (including interest accrued to the applicable Redemption Date), on and after the applicable Redemption Date interest will cease to accrue on the Notes or portions of the Notes called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any notice of redemption of the Notes need not set forth the redemption price but only the manner of calculation thereof. The Issuer will notify the Trustee of the redemption price promptly after the calculation thereof. The Trustee shall have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof and accrued and unpaid interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall, among other things, (i) extend the final maturity of any Security, or reduce the principal amount thereof or reduce the rate or extend the time of payment of any interest thereon, or reduce any amount payable on the redemption thereof, or make the principal thereof or the interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities the Holders of which are required to consent to any such supplemental indenture without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default, prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series (or, in the case of certain defaults or Events of Default, all or certain series of the Securities) may on behalf of the Holders of all the Securities of such series (or all or certain series of the Securities, as the case may be) waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default or Event of Default in respect of the payment of the principal of or premium, if any, or interest on any of the Securities or a default or Event of Default in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Security affected. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor or on registration of transfer hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Notes may be exchanged for a like aggregate principal amount of Notes of other
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authorized denominations upon surrender of the Notes to be exchanged at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York in the manner and subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of Notes shall have all the rights set forth in the Registration Rights Agreement dated as of March 12, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. (as the same may be amended or supplemented from time to time in accordance with its terms, the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders of the Notes will, subject to certain exceptions and on the terms and subject to the conditions specified in the Registration Rights Agreement, have the right to exchange their Notes for a like principal amount of Exchange Securities of the same series issued under the Indenture, which Exchange Securities will have been registered under the Securities Act. The Holders of the Notes shall be entitled to receive certain additional interest on the Notes in the event such exchange offer is not consummated or upon certain other conditions, all as set forth in the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and premium, if any, and subject to the provisions of the first paragraph hereof, interest hereon and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or in any Note, or because of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law.
Terms used in this Note which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged from its obligations with respect to the Notes, subject to exceptions, if the Issuer deposits with the Trustee cash or U.S. Government Obligations in the amount and in the manner, and satisfies certain other conditions, as in the Indenture provided.
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This Note shall not be valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee under the Indenture by manual signature of an authorized officer of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to be signed and its corporate seal attested by the manual or facsimile signatures of its duly authorized officers and has caused its corporate seal (or a facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
* The signatures and/or the Trustee's certificate of authentication may be moved to appear on the same page as the principal amount of this Security.
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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:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act _________________________
(State)
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
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.
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[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 5.50% Note due 2005 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below):
[ ] (a) The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act.
[ ] (b) The Specified Securities are being acquired for the Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in compliance with Rule 144A ("Rule 144A") under the Securities Act to a Person the Transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) that is purchasing the Specified Securities for its own account or for the account of another "qualified institutional buyer", in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to and in compliance with an exemption from the registration requirements of the Securities Act provided by Rule 144 under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the "United States" (as defined in Regulation S ("Regulation S") under the Securities Act) in an "offshore transaction" (as defined in Regulation S) in compliance with Rule 904 under the Securities Act.
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This Certificate and the statements contained herein are made for the benefit of the Trustee, the Issuer and the initial purchasers, if any, in the initial offering of the Notes.
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933 (the "Securities Act") and is aware that the Specified Securities (as defined above) are being transferred in reliance on 144A under the Securities Act, (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other qualified institutional buyers over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned by one of its executive officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act and may not be transferred except in accordance with the resale and other transfer restrictions set forth on the face thereof.
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[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars ($_). The following increases or decreases in the principal amount of this Global Security have been made:
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Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
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Exhibit A-3
[FORM OF TRANCHE 3 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
A-3-1
[Include the following legend (the "DTC Legend") only in Global Offered Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered Securities--] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BD 5]
[Reg S: U96224 AD 9]
[A/I: 962166 BL 7]
[Exchange Note: 962166 BM 5]
WEYERHAEUSER COMPANY
6.125% Note due 2007
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term includes any successor thereto under the Indenture referred to below), for value received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--or such other principal amount as is set forth on Schedule A hereto] on March 15, 2007, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually in arrears on March 15 and September 15 of each year, commencing September 15, 2002, and at final maturity on said principal sum at said office or agency, in like coin or currency, at the rate of 6.125% per annum from the March 15 or September 15, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on these Notes, in which case from March 12, 2002 until payment of said principal sum has been made or duly provided for; provided that, if this Note is not a Global Security, payment of interest may be made at the option of the Issuer by check mailed to the address of the Person entitled thereto as such address shall appear on the Security register; and provided, further, that if this Note is a Global Security registered in the name of a
A-3-2
Depositary or its nominee, payment of interest shall be made to the Depositary or its nominee, as the case may be, in accordance with the Depositary's procedures as in effect from time to time. Notwithstanding the foregoing, if the date hereof is after March 1 or September 1, as the case may be, and before the following March 15 or September 15, this Note shall bear interest from such March 15 or September 15; provided, that if the Issuer shall default in the payment of interest due on such March 15 or September 15, then this Note shall bear interest from the next preceding March 15 or September 15 to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on these Notes, from March 12, 2002. The interest so payable on any March 15 or September 15 will, subject to certain exceptions provided in the Indenture referred to below, be paid to the person in whose name this Note is registered at the close of business on the March 1 or September 1, as the case may be, next preceding such March 15 or September 15. Interest on this Note shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
This Note is one of a duly authorized issue of Securities of the Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the "Original Indenture"), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental Indenture"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of the series of Securities designated on the face hereof (the "Notes").
The Notes may be redeemed, in whole or from time to time in part, at the option of the Issuer on any date at a redemption price equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the applicable Redemption Date) discounted to that Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid interest on the principal amount of the Notes being redeemed to such Redemption Date; provided, however, that payments of interest on the Notes that are due and payable on or prior to a date fixed for redemption of Notes will be payable to the Holders of those Notes registered as such at the close of business on the relevant record dates according to their terms and the terms and provisions of the Indenture. Any such redemption shall be effected in accordance with the terms and conditions set forth in the Indenture.
As used in this Note, the following terms have the meanings set forth below:
"Treasury Rate" means, with respect to any Redemption Date for the Notes, (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by
A-3-3
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Final Maturity Date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption Date. As used in the immediately preceding sentence and in the definition of "Reference Treasury Dealer Quotations" below, the term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date for the Notes, the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date for the Notes, (1) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2007.
"Independent Investment Banker" means, with respect to any Redemption Date for the Notes, Morgan Stanley & Co. Incorporated and its successors or J.P. Morgan Securities Inc. and its successors, whichever shall be selected by the Trustee after consultation with the Issuer, or, if both such firms or the respective successors, if any, to such firms, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee after consultation with the Issuer.
"Redemption Date" means, with respect to any Note or portion thereof to be redeemed, the date fixed for such redemption pursuant to the Indenture and the Notes.
"Reference Treasury Dealer" means, with respect to any Redemption Date for the Notes, Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. and their respective successors (provided, however, that if any such firm or any such successor, as the case may be, shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee, after consultation with the Issuer, shall substitute therefor another Primary Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date for the Notes, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.
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Notice of any redemption will be mailed at least 30 days but not more than 60 days before the applicable Redemption Date to each Holder of the Notes to be redeemed at the Holder's registered address. If less than all the Notes are to be redeemed at the option of the Issuer, the Trustee will select, in a manner it deems fair and appropriate, the Notes, or portions of the Notes, to be redeemed.
Unless the Issuer defaults in payment of the redemption price (including interest accrued to the applicable Redemption Date), on and after the applicable Redemption Date interest will cease to accrue on the Notes or portions of the Notes called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any notice of redemption of the Notes need not set forth the redemption price but only the manner of calculation thereof. The Issuer will notify the Trustee of the redemption price promptly after the calculation thereof. The Trustee shall have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof and accrued and unpaid interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall, among other things, (i) extend the final maturity of any Security, or reduce the principal amount thereof or reduce the rate or extend the time of payment of any interest thereon, or reduce any amount payable on the redemption thereof, or make the principal thereof or the interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities the Holders of which are required to consent to any such supplemental indenture without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default, prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series (or, in the case of certain defaults or Events of Default, all or certain series of the Securities) may on behalf of the Holders of all the Securities of such series (or all or certain series of the Securities, as the case may be) waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default or Event of Default in respect of the payment of the principal of or premium, if any, or interest on any of the Securities or a default or Event of Default in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Security affected. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor or on registration of transfer hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Notes may be exchanged for a like aggregate principal amount of Notes of other
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authorized denominations upon surrender of the Notes to be exchanged at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York in the manner and subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of Notes shall have all the rights set forth in the Registration Rights Agreement dated as of March 12, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. (as the same may be amended or supplemented from time to time in accordance with its terms, the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders of the Notes will, subject to certain exceptions and on the terms and subject to the conditions specified in the Registration Rights Agreement, have the right to exchange their Notes for a like principal amount of Exchange Securities of the same series issued under the Indenture, which Exchange Securities will have been registered under the Securities Act. The Holders of the Notes shall be entitled to receive certain additional interest on the Notes in the event such exchange offer is not consummated or upon certain other conditions, all as set forth in the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and premium, if any, and, subject to the provisions of the first paragraph hereof, interest hereon and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or in any Note, or because of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law.
Terms used in this Note which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged from its obligations with respect to the Notes, subject to exceptions, if the Issuer deposits with the Trustee cash or U.S. Government Obligations in the amount and in the manner, and satisfies certain other conditions, as in the Indenture provided.
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This Note shall not be valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee under the Indenture by manual signature of an authorized officer of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to be signed and its corporate seal attested by the manual or facsimile signatures of its duly authorized officers and has caused its corporate seal (or a facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
Title:
[SEAL]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
* The signatures and/or the Trustee's certificate of authentication may be moved to appear on the same page as the principal amount of this Security.
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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:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ____________________
(State)
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
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.
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[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 6.125% Note due 2007 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below):
[ ] (a) The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act.
[ ] (b) The Specified Securities are being acquired for the Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in compliance with Rule 144A ("Rule 144A") under the Securities Act to a Person the Transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) that is purchasing the Specified Securities for its own account or for the account of another "qualified institutional buyer", in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to and in compliance with an exemption from the registration requirements of the Securities Act provided by Rule 144 under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the "United States" (as defined in Regulation S ("Regulation S") under the Securities Act) in an "offshore transaction" (as defined in Regulation S) in compliance with Rule 904 under the Securities Act.
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This Certificate and the statements contained herein are made for the benefit of the Trustee, the Issuer and the initial purchasers, if any, in the initial offering of the Notes.
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933 (the "Securities Act") and is aware that the Specified Securities (as defined above) are being transferred in reliance on 144A under the Securities Act, (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other qualified institutional buyers over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned by one of its executive officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act and may not be transferred except in accordance with the resale and other transfer restrictions set forth on the face thereof.
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[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars ($_). The following increases or decreases in the principal amount of this Global Security have been made:
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Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
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Exhibit A-4
[FORM OF TRANCHE 4 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT
OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (a) TO THE
ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (c)
TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES
TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED
FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN OPINION OF COUNSEL
REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT THE TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, PROVIDED THAT THE FOREGOING
AGREEMENT OF THE HOLDER IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE
DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY INVESTOR ACCOUNTS FOR WHICH THE
HOLDER IS ACTING SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS OR THEIR CONTROL;
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN CONNECTION
WITH ANY TRANSFER OF THIS NOTE PRIOR TO EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE NOTE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH HEREON RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS NOTE TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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[Include the following legend (the "DTC Legend") only in Global Offered Securities--] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered Securities--] UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BE 3]
[Reg S: U96224 AE 7]
[A/I: 962166 BN 3]
[Exchange Note: 962166 BP 8]
WEYERHAEUSER COMPANY
6.75% Note due 2012
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term includes any successor thereto under the Indenture referred to below), for value received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--or such other principal amount as is set forth on Schedule A hereto] on March 15, 2012, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually in arrears on March 15 and September 15 of each year, commencing September 15, 2002, and at final maturity on said principal sum at said office or agency, in like coin or currency, at the rate of 6.75% per annum from the March 15 or September 15, as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on these Notes, in which case from March 12, 2002 until payment of said principal sum has been made or duly provided for; provided that, if this Note is not a Global Security, payment of interest may be made at the option of the Issuer by check mailed to the address of the Person entitled thereto as such address shall appear on the Security register; and provided, further, that if this Note is a Global Security registered in the name of a
A-4-2
Depositary or its nominee, payment of interest shall be made to the Depositary or its nominee, as the case may be, in accordance with the Depositary's procedures as in effect from time to time. Notwithstanding the foregoing, if the date hereof is after March 1 or September 1, as the case may be, and before the following March 15 or September 15, this Note shall bear interest from such March 15 or September 15; provided, that if the Issuer shall default in the payment of interest due on such March 15 or September 15, then this Note shall bear interest from the next preceding March 15 or September 15 to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on these Notes, from March 12, 2002. The interest so payable on any March 15 or September 15 will, subject to certain exceptions provided in the Indenture referred to below, be paid to the person in whose name this Note is registered at the close of business on the March 1 or September 1, as the case may be, next preceding such March 15 or September 15. Interest on this Note shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
This Note is one of a duly authorized issue of Securities of the Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the "Original Indenture"), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental Indenture"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of the series of Securities designated on the face hereof (the "Notes").
The Notes may be redeemed, in whole or from time to time in part, at the option of the Issuer on any date at a redemption price equal to the greater of:
(1) 100% of the principal amount of the Notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the applicable Redemption Date) discounted to that Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid interest on the principal amount of the Notes being redeemed to such Redemption Date; provided, however, that payments of interest on the Notes that are due and payable on or prior to a date fixed for redemption of Notes will be payable to the Holders of those Notes registered as such at the close of business on the relevant record dates according to their terms and the terms and provisions of the Indenture. Any such redemption shall be effected in accordance with the terms and conditions set forth in the Indenture.
As used in this Note, the following terms have the meanings set forth below:
"Treasury Rate" means, with respect to any Redemption Date for the Notes, (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by
A-4-3
the Board of Governors of the Federal Reserve System and which establishes
yields on actively traded United States Treasury securities adjusted to constant
maturity under the caption "Treasury Constant Maturities," for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is within three
months before or after the Final Maturity Date for the Notes, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month), or
(2) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption Date. As used in the immediately preceding sentence and in the definition of "Reference Treasury Dealer Quotations" below, the term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date for the Notes, the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes to be redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date for the Notes, (1) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2012.
"Independent Investment Banker" means, with respect to any Redemption Date for the Notes, Morgan Stanley & Co. Incorporated and its successors or J.P. Morgan Securities Inc. and its successors, whichever shall be selected by the Trustee after consultation with the Issuer, or, if both such firms or the respective successors, if any, to such firms, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee after consultation with the Issuer.
"Redemption Date" means, with respect to any Note or portion thereof to be redeemed, the date fixed for such redemption pursuant to the Indenture and the Notes.
"Reference Treasury Dealer" means, with respect to any Redemption Date for the Notes, Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. and their respective successors (provided, however, that if any such firm or any such successor, as the case may be, shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee, after consultation with the Issuer, shall substitute therefor another Primary Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date for the Notes, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.
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Notice of any redemption will be mailed at least 30 days but not more than 60 days before the applicable Redemption Date to each Holder of the Notes to be redeemed at the Holder's registered address. If less than all the Notes are to be redeemed at the option of the Issuer, the Trustee will select, in a manner it deems fair and appropriate, the Notes, or portions of the Notes, to be redeemed.
Unless the Issuer defaults in payment of the redemption price (including interest accrued to the applicable Redemption Date), on and after the applicable Redemption Date interest will cease to accrue on the Notes or portions of the Notes called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any notice of redemption of the Notes need not set forth the redemption price but only the manner of calculation thereof. The Issuer will notify the Trustee of the redemption price promptly after the calculation thereof. The Trustee shall have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof and accrued and unpaid interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall, among other things, (i) extend the final maturity of any Security, or reduce the principal amount thereof or reduce the rate or extend the time of payment of any interest thereon, or reduce any amount payable on the redemption thereof, or make the principal thereof or the interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities the Holders of which are required to consent to any such supplemental indenture without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default, prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series (or, in the case of certain defaults or Events of Default, all or certain series of the Securities) may on behalf of the Holders of all the Securities of such series (or all or certain series of the Securities, as the case may be) waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default or Event of Default in respect of the payment of the principal of or premium, if any, or interest on any of the Securities or a default or Event of Default in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Security affected. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor or on registration of transfer hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Notes may be exchanged for a like aggregate principal amount of Notes of other
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authorized denominations upon surrender of the Notes to be exchanged at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York in the manner and subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
The Notes are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Note at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Notes under the Indenture, Holders of Notes shall have all the rights set forth in the Registration Rights Agreement dated as of March 12, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. (as the same may be amended or supplemented from time to time in accordance with its terms, the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders of the Notes will, subject to certain exceptions and on the terms and subject to the conditions specified in the Registration Rights Agreement, have the right to exchange their Notes for a like principal amount of Exchange Securities of the same series issued under the Indenture, which Exchange Securities will have been registered under the Securities Act. The Holders of the Notes shall be entitled to receive certain additional interest on the Notes in the event such exchange offer is not consummated or upon certain other conditions, all as set forth in the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and premium, if any, and, subject to the provisions of the first paragraph hereof, interest hereon and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or in any Note, or because of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall be governed by and construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law.
Terms used in this Note which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged from its obligations with respect to the Notes, subject to exceptions, if the Issuer deposits with the Trustee cash or U.S. Government Obligations in the amount and in the manner, and satisfies certain other conditions, as in the Indenture provided.
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This Note shall not be valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee under the Indenture by manual signature of an authorized officer of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to be signed and its corporate seal attested by the manual or facsimile signatures of its duly authorized officers and has caused its corporate seal (or a facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
* The signatures and/or the Trustee's certificate of authentication may be moved to appear on the same page as the principal amount of this Security.
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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:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ____________________
(State)
|
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
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.
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[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 6.75% Note due 2012 (the "Notes") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below):
[ ] (a) The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act.
[ ] (b) The Specified Securities are being acquired for the Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in compliance with Rule 144A ("Rule 144A") under the Securities Act to a Person the Transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) that is purchasing the Specified Securities for its own account or for the account of another "qualified institutional buyer", in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to and in compliance with an exemption from the registration requirements of the Securities Act provided by Rule 144 under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the "United States" (as defined in Regulation S ("Regulation S") under the Securities Act) in an "offshore transaction" (as defined in Regulation S) in compliance with Rule 904 under the Securities Act.
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This Certificate and the statements contained herein are made for the benefit of the Trustee, the Issuer and the initial purchasers, if any, in the initial offering of the Notes.
To be completed by transferee
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933 (the "Securities Act") and is aware that the Specified Securities (as defined above) are being transferred in reliance on 144A under the Securities Act, (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other qualified institutional buyers over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned by one of its executive officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act and may not be transferred except in accordance with the resale and other transfer restrictions set forth on the face thereof.
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[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars ($_). The following increases or decreases in the principal amount of this Global Security have been made:
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Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
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Exhibit A-5
[FORM OF TRANCHE 5 SECURITY]
[The following legend (the "Private Placement Legend") to be included on
all Offered Securities (other than Exchange Securities) until such time as such
legend has been removed in accordance with the provisions of the Indenture--]
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS, AND, ACCORDINGLY,
MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (a) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (b)
IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT) (AN "INSTITUTIONAL ACCREDITED INVESTOR") OR
(c) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS DEBENTURE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT; (2) AGREES
THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE DEBENTURE EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS DEBENTURE EXCEPT (a)
TO THE ISSUER (AS DEFINED BELOW) HEREOF OR ONE OF ITS SUBSIDIARIES, (b) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (c) TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS DEBENTURE (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE) AND, IF REQUESTED BY THE ISSUER, AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE ISSUER HEREOF TO THE EFFECT THAT
THE TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (d)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (e) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (f) OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
PROVIDED THAT THE FOREGOING AGREEMENT OF THE HOLDER IS SUBJECT TO ANY
REQUIREMENT OF LAW THAT THE DISPOSITION OF THE PROPERTY OF THE HOLDER OR ANY
INVESTOR ACCOUNTS FOR WHICH THE HOLDER IS ACTING SHALL AT ALL TIMES BE AND
REMAIN WITHIN ITS OR THEIR CONTROL; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS DEBENTURE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS DEBENTURE PRIOR
TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE DEBENTURE
EVIDENCED HEREBY UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH HEREON RELATING
TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS DEBENTURE TO JPMORGAN CHASE BANK,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL ACCREDITED INVESTOR OR IF THE PROPOSED TRANSFER IS BEING MADE OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT OR PURSUANT TO RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO JPMORGAN CHASE BANK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE ISSUER HEREOF MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE DEBENTURE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(e) ABOVE OR UPON ANY TRANSFER OF THIS DEBENTURE UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
[The following legend (the "Private Placement Legend") to be included on all Offered Securities (other than Exchange Securities) until such time as such legend has been removed in accordance with the provisions of the Indenture--] AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
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[Include the following legend (the "DTC Legend") only in Global Offered Securities--] THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS DEBENTURE IS EXCHANGEABLE FOR DEBENTURES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR INDIVIDUAL DEBENTURES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
[Include the following legend (the "DTC Legend") only in Global Offered Securities--] UNLESS THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY DEBENTURE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
No. [RA-_] [RS-_] [RD-_] [R-_]
Principal Amount:
$_ [FOR INCLUSION IN
GLOBAL OFFERED
SECURITIES--(or such other
principal amount as is set
forth on Schedule A hereto)
CUSIP No. [Rule 144A: 962166 BF 0]
[Reg S: U96224 AF 4]
[A/I: 962166 BQ 6]
[Exchange Debenture: 962166 BR 4]
WEYERHAEUSER COMPANY
7.375% Debenture due 2032
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term includes any successor thereto under the Indenture referred to below), for value received, hereby promises to pay to [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--Cede & Co.], or registered assigns, at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York, the principal sum of _ Dollars ($_) [FOR INCLUSION IN GLOBAL OFFERED SECURITIES--or such other principal amount as is set forth on Schedule A hereto] on March 15, 2032, in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually in arrears on March 15 and September 15 of each year, commencing September 15, 2002, and at final maturity on said principal sum at said office or agency, in like coin or currency, at the rate of 7.375% per annum from the March 15 or September 15, as the case may be, next preceding the date of this Debenture to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Debenture, or unless no interest has been paid or duly provided for on these Debentures, in which case from March 12, 2002 until payment of said principal sum has been made or duly provided for; provided that, if this Debenture is not a Global Security, payment of interest may be made at the option of the Issuer by check mailed to the address of the Person entitled thereto as such address shall appear on the Security register; and provided, further, that if this Debenture is a Global Security registered in the name of a Depositary or its nominee, payment of interest shall be made to the Depositary or its nominee, as the case may be, in accordance with the Depositary's procedures as in effect from time to time. Notwithstanding the foregoing, if the date hereof is after March 1 or September 1, as the
A-5-2
case may be, and before the following March 15 or September 15, this Debenture shall bear interest from such March 15 or September 15; provided, that if the Issuer shall default in the payment of interest due on such March 15 or September 15, then this Debenture shall bear interest from the next preceding March 15 or September 15 to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on these Debentures, from March 12, 2002. The interest so payable on any March 15 or September 15 will, subject to certain exceptions provided in the Indenture referred to below, be paid to the person in whose name this Debenture is registered at the close of business on the March 1 or September 1, as the case may be, next preceding such March 15 or September 15. Interest on this Debenture shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
This Debenture is one of a duly authorized issue of Securities of the Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the "Original Indenture"), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of October 22, 2001 (the "Third Supplemental Indenture"), and a Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental Indenture"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Issuer and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Debenture is one of the series of Securities designated on the face hereof (the "Debentures").
The Debentures may be redeemed, in whole or from time to time in part, at the option of the Issuer on any date at a redemption price equal to the greater of:
(1) 100% of the principal amount of the Debentures to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments
of principal and interest on the Debentures to be redeemed
(exclusive of interest accrued to the applicable Redemption Date)
discounted to that Redemption Date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 30 basis points,
plus, in the case of both clause (1) and clause (2) above, accrued and unpaid interest on the principal amount of the Debentures being redeemed to such Redemption Date; provided, however, that payments of interest on the Debentures that are due and payable on or prior to a date fixed for redemption of Debentures will be payable to the Holders of those Debentures registered as such at the close of business on the relevant record dates according to their terms and the terms and provisions of the Indenture. Any such redemption shall be effected in accordance with the terms and conditions set forth in the Indenture.
As used in this Debenture, the following terms have the meanings set forth below:
"Treasury Rate" means, with respect to any Redemption Date for the Debentures, (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for
A-5-3
the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Final Maturity Date for the Debentures, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month), or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding the applicable Redemption Date. As used in the immediately preceding sentence and in the definition of "Reference Treasury Dealer Quotations" below, the term "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.
"Comparable Treasury Issue" means, with respect to any Redemption Date for the Debentures, the United States Treasury security selected by the Independent Investment Banker as having a maturity comparable to the remaining term of the Debentures to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Debentures to be redeemed.
"Comparable Treasury Price" means, with respect to any Redemption Date for the Debentures, (1) the average of four Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
"Final Maturity Date" means March 15, 2032.
"Independent Investment Banker" means, with respect to any Redemption Date for the Debentures, Morgan Stanley & Co. Incorporated and its successors or J.P. Morgan Securities Inc. and its successors, whichever shall be selected by the Trustee after consultation with the Issuer, or, if both such firms or the respective successors, if any, to such firms, as the case may be, are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee after consultation with the Issuer.
"Redemption Date" means, with respect to any Debenture or portion thereof to be redeemed, the date fixed for such redemption pursuant to the Indenture and the Debentures.
"Reference Treasury Dealer" means, with respect to any Redemption Date for the Debentures, Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. and their respective successors (provided, however, that if any such firm or any such successor, as the case may be, shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Trustee, after consultation with the Issuer, shall substitute therefor another Primary Treasury Dealer), and two other Primary Treasury Dealers selected by the Trustee after consultation with the Issuer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any Redemption Date for the Debentures, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding that Redemption Date.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the applicable Redemption Date to each Holder of the Debentures to be redeemed at the Holder's registered
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address. If less than all the Debentures are to be redeemed at the option of the Issuer, the Trustee will select, in a manner it deems fair and appropriate, the Debentures, or portions of the Debentures, to be redeemed.
Unless the Issuer defaults in payment of the redemption price (including interest accrued to the applicable Redemption Date), on and after the applicable Redemption Date interest will cease to accrue on the Debentures or portions of the Debentures called for redemption on that Redemption Date.
Notwithstanding the provisions of Section 12.2 of the Indenture, any notice of redemption of the Debentures need not set forth the redemption price but only the manner of calculation thereof. The Issuer will notify the Trustee of the redemption price promptly after the calculation thereof. The Trustee shall have no responsibility for such calculation.
In case an Event of Default (as defined in the Indenture) with respect to the Debentures shall have occurred and be continuing, the principal hereof and accrued and unpaid interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall, among other things, (i) extend the final maturity of any Security, or reduce the principal amount thereof or reduce the rate or extend the time of payment of any interest thereon, or reduce any amount payable on the redemption thereof, or make the principal thereof or the interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities the Holders of which are required to consent to any such supplemental indenture without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default, prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series (or, in the case of certain defaults or Events of Default, all or certain series of the Securities) may on behalf of the Holders of all the Securities of such series (or all or certain series of the Securities, as the case may be) waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default or Event of Default in respect of the payment of the principal of or premium, if any, or interest on any of the Securities or a default or Event of Default in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Security affected. Any such consent or waiver by the Holder of this Debenture (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Debenture and any Debentures which may be issued in exchange or substitution herefor or on registration of transfer hereof, irrespective of whether or not any notation thereof is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Debenture in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
The Debentures are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Debentures may be exchanged for a like aggregate principal amount of Debentures of other authorized denominations upon surrender of the Debentures to be exchanged at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York in the manner
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and subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
The Debentures are not subject to any sinking fund.
Upon due presentment for registration of transfer of this Debenture at the agency of the Issuer maintained for that purpose in the Borough of Manhattan, The City of New York, a new Debenture or Debentures of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
[THIS PARAGRAPH TO BE OMITTED FROM EXCHANGE SECURITIES--] In addition to
rights provided to the Holders of the Debentures under the Indenture, Holders of Debentures shall have all the rights set forth in the Registration Rights Agreement dated as of March 12, 2002 between the Issuer and Morgan Stanley & Co. Incorporated and J.P. Morgan Securities Inc. (as the same may be amended or supplemented from time to time in accordance with its terms, the "Registration Rights Agreement"). Pursuant to the Registration Rights Agreement, the Holders of the Debentures will, subject to certain exceptions and on the terms and subject to the conditions specified in the Registration Rights Agreement, have the right to exchange their Debentures for a like principal amount of Exchange Securities of the same series issued under the Indenture, which Exchange Securities will have been registered under the Securities Act. The Holders of the Debentures shall be entitled to receive certain additional interest on the Debentures in the event such exchange offer is not consummated or upon certain other conditions, all as set forth in the Registration Rights Agreement.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Debenture (whether or not this Debenture shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and premium, if any, and, subject to the provisions of the first paragraph hereof, interest hereon and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or in any Debenture, or because of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, of the Issuer or of any successor entity, either directly or through the Issuer or any successor entity, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
This Debenture shall be governed by and construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law.
Terms used in this Debenture which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
The Indenture contains provisions whereby the Issuer may be discharged from its obligations with respect to the Debentures, subject to exceptions, if the Issuer deposits with the Trustee cash or U.S. Government Obligations in the amount and in the manner, and satisfies certain other conditions, as in the Indenture provided.
This Debenture shall not be valid or obligatory for any purpose until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee under the Indenture by manual signature of an authorized officer of the Trustee.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to be signed and its corporate seal attested by the manual or facsimile signatures of its duly authorized officers and has caused its corporate seal (or a facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY*
[SEAL]
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION*
This is one of the Securities of the series designated herein and referred to in the within mentioned Indenture.
JPMORGAN CHASE BANK,
as Trustee
* The signatures and/or the Trustee's certificate of authentication may be moved to appear on the same page as the principal amount of this Security.
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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:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to Minors
and not as tenants in common Act ____________________
(State)
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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
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.
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[FOR INCLUSION IN OFFERED SECURITIES BEARING THE PRIVATE PLACEMENT LEGEND]
TRANSFER CERTIFICATE
Capitalized terms used but not defined in this Certificate shall have the meanings given to such terms in the Indenture referred to above.
The undersigned (the "Transferor") has requested a transfer of this 7.375% Debenture due 2032 (the "Debentures") or a portion hereof (the "Specified Securities").
In connection with such request, the Transferor does hereby certify that such transfer is being made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "Securities Act") (as indicated by the applicable box checked below), or the transfer does not require registration under the Securities Act because (as indicated by the applicable box checked below):
[ ] (a) The Specified Securities are being transferred pursuant to an effective registration statement under the Securities Act.
[ ] (b) The Specified Securities are being acquired for the Transferor's own account, without transfer.
[ ] (c) The Specified Securities are being transferred to the Issuer or a subsidiary of the Issuer.
[ ] (d) The Specified Securities are being transferred in compliance with Rule 144A ("Rule 144A") under the Securities Act to a Person the Transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A) that is purchasing the Specified Securities for its own account or for the account of another "qualified institutional buyer", in each case to whom notice has been given that the transfer is being made in reliance on Rule 144A.
[ ] (e) The Specified Securities are being transferred to an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) (an
"Institutional Accredited Investor") purchasing for its
own account or for the account of one or more other
Institutional Accredited Investors over which it exercises
sole investment discretion, in each case in a minimum
principal amount of $250,000, and that, prior to such
transfer, furnishes to the Trustee a signed letter
containing certain representations and agreements relating
to the restrictions on transfer of the Specified
Securities (the form of which letter can be obtained from
the Trustee) and, if the Issuer requests, an opinion of
counsel reasonably acceptable to the Issuer to the effect
that the transfer is being made pursuant to an exemption
from, or in a transaction not subject to, the registration
requirements of the Securities Act.
[ ] (f) The Specified Securities are being transferred pursuant to and in compliance with an exemption from the registration requirements of the Securities Act provided by Rule 144 under the Securities Act (if available).
[ ] (g) The Specified Securities are being transferred outside the "United States" (as defined in Regulation S ("Regulation S") under the Securities Act) in an "offshore transaction" (as defined in Regulation S) in compliance with Rule 904 under the Securities Act.
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This Certificate and the statements contained herein are made for the benefit of the Trustee, the Issuer and the initial purchasers, if any, in the initial offering of the Debentures.
Dated:
------------------- ----------------------------------------
(Insert Name of Transferor)
By:
-------------------------------------
Notice: The signature to this
Certificate must correspond with the
name as it appears upon the face of the
within security in every particular,
without alteration or enlargement or any
change whatever
To be completed by transferee
|
if (d) above is checked:
The undersigned transferee represents and warrants (i) that it is a "qualified institutional buyer" as defined in Rule 144A under the Securities Act of 1933 (the "Securities Act") and is aware that the Specified Securities (as defined above) are being transferred in reliance on 144A under the Securities Act, (ii) the undersigned is acquiring the Specified Securities for its own account or for the account of one or more other qualified institutional buyers over which it exercises sole investment discretion (in which latter case the undersigned has given notice to each such account that the Specified Securities are being transferred in reliance on Rule 144A) and (iii) this instrument has been executed on behalf of the undersigned by one of its executive officers. The undersigned transferee acknowledges and agrees that the Specified Securities have not been registered under the Securities Act and may not be transferred except in accordance with the resale and other transfer restrictions set forth on the face thereof.
Dated:
------------------- ----------------------------------------
(Insert Name of Transferee)
By:
-------------------------------------
Executive Officer
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[FOR INCLUSION IN GLOBAL OFFERED SECURITIES]
SCHEDULE A
The initial principal amount of this Global Security is _ Dollars ($_). The following increases or decreases in the principal amount of this Global Security have been made:
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Principal amount
Amount of Amount of of
increase decrease in this Global
in principal principal amount Security Signature of
amount of following such authorized
of this Global this Global decrease or signatory of
Date made Security Security increase Trustee
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EXHIBIT B
Form of Certificate
[Date]
JPMorgan Chase Bank
450 W. 33rd Street, 15th Floor
New York, NY 10001
Attention: Institutional Trust Services
Weyerhaeuser Company
P.O. Box 9777
Federal Way, Washington 98063-9777
Re: Weyerhaeuser Company
(the "Issuer")
[Floating Rate] [_____%] [Notes] [Debentures] due __________
(the "Securities")
Dear Sirs and Mesdames:
This letter relates to $______,000 principal amount of Securities
represented by a Regulation S [Global] [Physical] Security (as defined in the
Indenture referred to below) (the "Legended Security") which bears a legend
outlining restrictions upon transfer of such Legended Security. Pursuant to
Section 2.1(b) of the Indenture dated as of April 1, 1986 (the "Original
Indenture"), as amended and supplemented by a First Supplemental Indenture
thereto dated as of February 15, 1991 (the "First Supplemental Indenture"), a
Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second
Supplemental Indenture"), a Third Supplemental Indenture thereto dated as of
October 22, 2001 (the "Third Supplemental Indenture") and a Fourth Supplemental
Indenture thereto dated as of March 12, 2002 (the "Fourth Supplemental
Indenture"; the Original Indenture, as amended and supplemented by the First
Supplemental Indenture, the Second Supplemental Indenture, the Third
Supplemental Indenture and the Fourth Supplemental Indenture, is hereinafter
called the "Indenture") relating to the Securities, we hereby certify that we
are (or we will hold such Securities on behalf of) a person outside the United
States to whom the Securities could be transferred in accordance with Rule 904
of Regulation S promulgated under the U.S. Securities Act of 1933. Accordingly,
you are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount of Regulation S [Global]
[Physical] Securities all in the manner provided for in the Indenture.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate and defined herein have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[Date]
JPMorgan Chase Bank
450 W. 33rd Street, 15th Floor
New York, NY 10001
Attention: Institutional Trust Services
Dear Sirs and Mesdames:
We are delivering this letter in connection with our proposed purchase
of $___ aggregate principal amount of [Floating Rate] [____%] [Notes]
[Debentures] due __________ (the "Securities") of Weyerhaeuser Company, a
Washington corporation (the "Issuer").
We hereby confirm that:
(i) we are an institutional "accredited investor" within the meaning of Rule 501(a) (1), (2), (3) or (7) under the Securities Act of 1933, as amended (the "Securities Act") (an "Institutional Accredited Investor");
(ii) any purchase of the Securities by us will be for our own account or for the account of one or more other Institutional Accredited Investors for which we exercise sole investment discretion;
(iii) in the event we purchase any of the Securities, we will acquire Securities having a minimum principal amount of not less than $250,000, in each case for our own account or for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial and business matters that we are capable of evaluating the merits and risks of purchasing the Securities;
(v) we not acquiring the Securities with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act; provided that the disposition of our property and the property of any accounts for which we are acquiring Securities shall remain at all times within our or their control; and
(vi) we acknowledge that we have had access to such financial and other information, and have been afforded the opportunity to ask such questions of representatives of the Issuer and receive answers thereto, as we deem necessary in connection with our decision to purchase the Securities.
We understand that the Securities are being offered in a transaction not involving any public offering within the United States within the meaning of the Securities Act and that the Securities have not been registered under the Securities Act, and we agree, on our own behalf and on behalf of each account for which we acquire any Securities, that if in the future we decide to offer, resell, pledge or otherwise transfer such Securities, such Securities may be offered, resold, pledged or otherwise transferred only (i) to the Issuer or any of its subsidiaries, (ii) to a person whom we reasonably believe is a "qualified institutional buyer" (as defined in Rule 144A under the Securities Act), (iii) to a person who we reasonably believe is an Institutional Accredited Investor in a transaction in which the Institutional Accredited Investor, prior to the transfer, furnishes to the trustee a signed letter containing certain representations and agreements relating to the restrictions on transfer of the Securities (the form of which letter can be obtained from the trustee for the Securities) and, if requested by the Issuer, an opinion of counsel reasonably acceptable to the Issuer to the effect that the transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, (iv) outside the United States in a transaction in accordance with Rule 904 under the Securities Act, (v) pursuant to an exemption from registration provided by Rule 144 under the Securities Act (if available) or (vi) pursuant to an effective registration statement under the Securities Act, in each of cases (i) through (vi) in accordance with any applicable securities laws of any state of the United States or any other applicable jurisdiction. We understand that, prior to any transfer referred to in clause (iii), (iv) or (v) of the preceding sentence, we must furnish to the trustee for the Securities such certifications, legal opinions and other information as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
We acknowledge that you, the Issuer and others will rely upon our confirmations, acknowledgments and agreements set forth herein, and we agree to notify you promptly in writing if any of our representations or warranties herein ceases to be accurate and complete.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
Title:
Address:
EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
[Date]
JPMorgan Chase Bank
450 W. 33rd Street, 15th Floor
New York, NY 10001
Attention: Institutional Trust Services
Re: Weyerhaeuser Company
(the "Issuer")
[Floating Rate] [_____%] [Notes] [Debentures] due ____
(the "Securities")
Dear Sirs and Mesdames:
In connection with our proposed sale of $______,000 aggregate principal amount of the Securities, we confirm that such sale has been effected pursuant to and in accordance with Regulation S or Rule 144 under the Securities Act of 1933 (as indicated by the applicable box checked below) and, accordingly, we represent that:
[ ] Rule 904 Transfers. The transfer is being effected in accordance with Rule 904 and:
(1) the offer of the Securities was not made to a person in the United States;
(2) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United States in contravention of the requirements of Rule 903 or Rule 904 of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the registration requirements of the U.S. Securities Act of 1933; and
(5) if the transfer is being made prior to the termination of the distribution compliance period applicable to the Securities, the interest in the Securities transferred will be held immediately thereafter through Euroclear Bank S.A./NV, as operator of the Euroclear System, or Clearstream Banking, societe anonyme, Luxembourg, as applicable.
[ ] Rule 144 Transfers. The transfer is being made pursuant to and in compliance with an exemption from the registration requirements of the Securities Act provided by Rule 144 under the Securities Act.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate and not defined herein have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
EXHIBIT E
[FORM OF GUARANTEE PROVISIONS]
ARTICLE THIRTEEN*
GUARANTEE OF THE SECURITIES
SECTION 13.1. Guarantee. The provisions of this Article Thirteen shall apply to the Securities of each series (including, without limitation, any Securities Outstanding or originally issued on the date on which this Article Thirteen shall become effective) unless specifically provided in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In recognition of the benefits that the issuance of the Securities has conferred and will continue to confer upon the Guarantor and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, subject to the provisions of this Article Thirteen, the Guarantor hereby irrevocably and unconditionally guarantees to each Holder of a Security authenticated and made available for delivery by the Trustee and to each Holder of any Coupon appertaining thereto, and to the Trustee on behalf of each such Holder, the due and punctual payment of the principal of and premium, if any, and interest on such Security and any Coupons appertaining thereto (including, without limitation, to the maximum extent permitted by law, interest on any overdue installments of principal, premium, if any, or interest) and the due and punctual payment of any sinking fund or analogous payments provided for pursuant to the terms of such Security, when and as the same shall become due and payable, whether at maturity, upon redemption, upon acceleration, upon repayment or repurchase at the option of the Holders or otherwise, in accordance with the terms of such Security and any such Coupons appertaining thereto and this Indenture; provided that the foregoing guarantee shall not be applicable to any Securities of a series or any Coupons appertaining thereto if the terms of the Securities of such series, as set forth in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3, expressly provide that the Securities of such series are not entitled to the benefit of the covenant set forth in Section 3.9(a) of this Indenture. Subject to the proviso to the immediately preceding sentence, in the case of any failure of the Issuer punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at maturity, upon redemption, upon acceleration, upon repayment or repurchase at the option of the Holder or otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of any Security or any Coupon appertaining thereto or this Indenture, the absence of any action to enforce the same, any waiver or consent by the Holder of any Security or any Coupon appertaining thereto or by the Trustee with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, or any action to enforce the same, or any other circumstances which might otherwise
* The numbering of this Article and the sections thereof may be appropriately revised.
constitute a legal or equitable discharge or defense of a guarantor and whether or not a Guarantee in substantially the form attached as Exhibit F to the Fourth Supplemental Indenture is affixed to or endorsed on any Security. The Guarantor hereby waives the benefit of diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, any right to require the prior disposition of the assets of the Issuer to meet its obligations, protest, or notice with respect to any Security or the indebtedness evidenced thereby or any Coupon appertaining thereto or with respect to any sinking fund or analogous payment required pursuant to the terms of such Security, and all demands whatsoever and covenants that its Guarantee will not be discharged with respect to any Security or any Coupon appertaining thereto except by payment in full of the principal of and premium, if any and interest on such Security or Coupon, as the case may be (except to the extent that such Guarantor is released from its obligations under this Indenture and its Guarantee with respect to such Security and any such Coupon as expressly provided in Section 3.9 of this Indenture). The Guarantor hereby agrees that, in the event of a default in the payment of any principal of or premium, if any, or interest on any Security or any Coupon appertaining thereto, or a default in any sinking fund or analogous payment referred to therein, legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security or such Coupon, as the case may be, on the terms and conditions set forth in this Indenture, directly against the Guarantor to enforce the Guarantee without first proceeding against the Issuer; provided that the provisions of this sentence shall not be applicable to a Security or any series or any Coupon appertaining thereto if the terms of the Securities of such series, as set forth in a Board Resolution, Officers' Certificate or indenture supplemental hereto provided pursuant to Section 2.3, expressly provide that the Securities of such series are not entitled to the benefit of the covenant set forth in Section 3.9(a) of this Indenture.
The Guarantor shall be subrogated to all rights of the Holders of the Securities of a particular series and any Coupons appertaining thereto against the Issuer in respect of any amounts paid by the Guarantor on account of any such Security or any such Coupon pursuant to the provisions of this Indenture or the Guarantee, if any, affixed to or endorsed on such Security; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of and premium, if any, and interest on all of the Securities of such series and any Coupons appertaining thereto issued hereunder shall have been paid in full or such payment duly provided for.
If the Issuer shall have agreed pursuant to a registration rights agreement or other similar instrument or agreement to pay additional interest or to make similar payments with respect to the Securities of any series or any Coupons appertaining thereon, then the Guarantor's Guarantee, if any, of the Securities of such series and any Coupons appertaining thereto shall also be deemed to guarantee the due and punctual payment of such additional interest or other similar payments, as the case may be, on the same terms and subject to the same conditions as the Guarantee of interest on the Securities of such series and any Coupons appertaining thereto.
The Guarantee set forth in this Section 13.1 shall not be valid or become obligatory for any purpose with respect to any Security of any series or any Coupon appertaining thereto until the certificate of authentication on such Security shall have been signed by the Trustee or an Authenticating Agent in the manner provided in this Indenture.
SECTION 13.2. Incorporators, Stockholders, Officers and Directors of the Guarantor Exempt from Individual Liability. No recourse for the payment of any principal or premium, if any, or interest under Section 13.1 or the Guarantee, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Guarantor contained in this Indenture or in the Guarantee or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Guarantor or of any successor, either directly or through the Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
SECTION 13.3. Execution and Delivery of the Guarantees. To further evidence the Guarantee set forth in Section 13.1 with respect to the Securities of any series or any Coupons appertaining thereto, the Issuer and the Guarantor hereby agree that a Guarantee, substantially in the form set forth in Exhibit F to the Fourth Supplemental Indenture, shall be endorsed on Securities of such series originally authenticated and made available for delivery by the Trustee; provided that the Issuer shall not be required to make a notation on the Securities of any series to reflect the Guarantee or to endorse a Guarantee on the Securities of any series if the Securities of that series were originally issued prior to the date on which the Guarantor became a guarantor of the Securities of such series or any Coupons appertaining thereto. The validity and enforceability of the Guarantee set forth in Section 13.1 of this Indenture with respect to any Security or any Coupon appertaining thereto shall not be impaired or otherwise affected by the fact that a Guarantee (whether in substantially the form attached as Exhibit F to the Fourth Supplemental Indenture or in any other form) is not endorsed on that Security or any other Security, and the Guarantor agrees that the Guarantee set forth in Section 13.1 shall remain in full force and effect with respect to each Security and Coupon entitled to the benefit of such Guarantee notwithstanding any failure to endorse a notation of the Guarantee (whether in substantially the form attached as Exhibit F to the Fourth Supplemental Indenture or in any other form) on any Security.
The Guarantor hereby agrees that each notation of the Guarantee endorsed on a Security shall be signed on behalf of the Guarantor by its president, any vice president or its treasurer (each, a "subject officer") and by any other subject officer, its secretary, any assistant secretary and any assistant treasurer. The Guarantor's corporate seal need not be affixed to any Guarantee endorsed on a Security. Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical and other minor errors or defects in any such reproduction of any such signature shall not affect the validity or enforceability of the Guarantee of any Security that has been duly authenticated and made available for delivery by the Trustee or any Coupon appertaining thereto.
In case any officer of the Guarantor who shall have signed any Guarantee that is endorsed on any Security shall cease to be such officer of the Guarantor before such Security shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and such Security and Guarantee may be delivered or disposed of as though the person who signed such Guarantee had not ceased to be such officer of
the Guarantor; and any Guarantee endorsed on any Security may be signed on behalf of the Guarantor by such persons as, at the actual date of the execution of such Guarantee, shall be the proper officers of the Guarantor.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee, if any, endorsed thereon.
SECTION 13.4. Limitation of the Guarantor's Liability. The Guarantor and, by its acceptance of a Security issued under this Indenture, each Holder hereby confirms that it is the intention of all parties that the obligations of the Guarantor under Section 13.1 of this Indenture and the Guarantees, if any, endorsed on the Securities shall not constitute a fraudulent conveyance or fraudulent transfer under any applicable fraudulent conveyance, fraudulent transfer, bankruptcy, insolvency or other similar law of any applicable jurisdiction. To effectuate the foregoing intention, the Holders, by their acceptance of the Securities and any Coupons appertaining thereto, and the Guarantor hereby agree that the obligations of the Guarantor under its Guarantee set forth in Section 13.1 of this Indenture and the Guarantees, if any, endorsed on the Securities are limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of the Guarantor, result in the obligations of the Guarantor under its Guarantee set forth in Section 13.1 of this Indenture and the Guarantees, if any, endorsed on the Securities not constituting a fraudulent conveyance or fraudulent transfer under applicable federal or state law. Subject to the preceding limitation, the obligations of the Guarantor under its Guarantee set forth in Section 13.1 of this Indenture and its Guarantee, if any, endorsed on the Securities constitute a guarantee of payment in full when due and not merely a guarantee of collectability.
EXHIBIT F
[FORM OF GUARANTEE TO BE ENDORSED ON SECURITIES]
GUARANTEE
For value received, Willamette Industries, Inc., an Oregon corporation (the "Guarantor"), hereby irrevocably and unconditionally guarantees to the Holder of the Security* upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and to the Holder of each Coupon appertaining thereto], and to the Trustee on behalf of each such Holder, the due and punctual payment of the principal of [INSERT IF APPLICABLE-- and premium, if any, and interest on] such Security [INSERT IF APPLICABLE--and any Coupons appertaining thereto] (including, without limitation, to the maximum extent permitted by law, interest on any overdue installments of principal [INSERT IF APPLICABLE--, premium, if any, or interest]) [INSERT IF APPLICABLE--and the due and punctual payment of the sinking fund payments provided for pursuant to the terms of such Security], when and as the same shall become due and payable, whether at maturity, upon acceleration, upon repayment or repurchase at the option of the Holders or otherwise, in accordance with the terms of such Security [INSERT IF APPLICABLE-- and the Coupons appertaining thereto] and the Indenture referred to therein. In the case of any failure of the Issuer punctually to make any such payment, the Guarantor hereby agrees to cause such payment to be made punctually when and as the same shall become due and payable, whether at maturity, upon redemption, upon acceleration, upon repayment or repurchase at the option of the Holder or otherwise, and as if such payment were made by the Issuer.
The Guarantor hereby agrees that its obligations hereunder shall be
absolute and unconditional, irrespective of the validity, regularity or
enforceability of the Security upon which this Guarantee is endorsed [INSERT IF
APPLICABLE--or any Coupon appertaining thereto] or the Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of any
Security [INSERT IF APPLICABLE--or any Coupon appertaining thereto] or by the
Trustee with respect to any provisions thereof or of the Indenture, the recovery
of any judgment against the Issuer, or any action to enforce the same, or any
other circumstances which might otherwise constitute a legal or equitable
discharge or defense of a guarantor. The Guarantor hereby waives the benefits of
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Issuer, any right to require a
proceeding first against the Issuer, any right to require the prior disposition
of assets of the Issuer to meet its obligations, protest or notice with respect
to such Security or the indebtedness evidenced thereby [INSERT IF APPLICABLE--or
any Coupon appertaining thereto] [INSERT IF APPLICABLE--or with respect to any
sinking fund payment required pursuant to the terms of such Security], and all
demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to the Security upon which it is endorsed [INSERT IF APPLICABLE--or
any Coupon appertaining thereto] except by payment in full of the principal of
[INSERT IF APPLICABLE--and premium, if any, and interest on] such Security
[INSERT IF APPLICABLE--or Coupon, as the case may be] (except to the extent that
the Guarantor is released from its obligations under the Indenture and this
Guarantee with respect
* References to the "Security" may be changed to refer to the actual type of debt security on which the Guarantee is endorsed.
to the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and any Coupons appertaining thereto] as expressly provided in Section 3.9 of the Indenture). The Guarantor hereby agrees that, in the event of a default in payment of principal of [INSERT IF APPLICABLE--or premium, if any, or interest on] the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--or any Coupon appertaining thereto], [INSERT IF APPLICABLE--or a default in any sinking fund payment referred to therein,] legal proceedings may be instituted by the Trustee on behalf of, or by, the Holder of such Security [INSERT IF APPLICABLE--or such Coupon, as the case may be,] on the terms and conditions set forth in the Indenture, directly against the Guarantor to enforce this Guarantee without first proceeding against the Issuer.
The Guarantor shall be subrogated to all rights of the Holders of the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and any Coupons appertaining thereto] against the Issuer in respect of any amounts paid by the Guarantor on account of such Security [INSERT IF APPLICABLE--or any such Coupon] pursuant to the provisions of the Indenture or this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payments arising out of, or based upon, such right of subrogation until the principal of [INSERT IF APPLICABLE--and premium, if any, and interest on] such Security and all other Securities of the same series [INSERT IF APPLICABLE--and all Coupons appertaining thereto] issued under the Indenture shall have been paid in full or such payment duly provided for.
All terms used in this Guarantee which are defined in the Indenture referred to in the Security upon which this Guarantee is endorsed shall have the meanings assigned to them in such Indenture.
[INSERT THE FOLLOWING IF THE ISSUER SHALL HAVE AGREED, PURSUANT TO A
REGISTRATION RIGHTS AGREEMENT OR SIMILAR INSTRUMENT OR AGREEMENT, TO PAY
ADDITIONAL INTEREST OR TO MAKE SIMILAR PAYMENTS WITH RESPECT TO THE SECURITIES
OF THE SERIES UPON WHICH THIS GUARANTEE IS ENDORSED--Pursuant to a [DESCRIBE
REGISTRATION RIGHTS AGREEMENT OR SIMILAR INSTRUMENT OR AGREEMENT] (the "[DEFINED
TERM FOR AGREEMENT]"), the Holder of the Security upon which this Guarantee is
endorsed [INSERT IF APPLICABLE--and any Coupons appertaining thereto] shall be
entitled to receive certain [INSERT DESCRIPTION OF ADDITIONAL INTEREST OR
SIMILAR PAYMENTS] ("additional interest") on this Security [INSERT IF
APPLICABLE--and any Coupons appertaining thereto] upon the terms and subject to
the conditions set forth in the [DEFINED TERM FOR AGREEMENT], and the
Guarantor's obligations under this Guarantee shall also be deemed to guarantee
the due and punctual payment of such additional interest on the same terms and
subject to the same conditions as its guarantee of interest on such Security
[INSERT IF APPLICABLE--and the Coupons appertaining thereto.]]
No recourse for the payment of the principal [INSERT IF APPLICABLE--or premium, if any, or interest under] this Guarantee, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Guarantor contained in the Indenture or in this Guarantee or because of any indebtedness evidenced hereby or thereby, shall be had against any incorporator, as such, or against any past, present or future stockholder, officer or director, as such, of the Guarantor or of any successor, either directly or through the Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all
such liability being expressly waived and released by the acceptance of the Security upon which this Guarantee is endorsed and as part of the consideration for the issue of such Security.
The Guarantor and, by its acceptance of the Security upon which this
Guarantee is endorsed, the Holder of such Security hereby confirms that it is
the intention of all parties that the obligations of the Guarantor under Section
13.1 of the Indenture and the Guarantees endorsed on such Security and on any
other Securities issued under the Indenture shall not constitute a fraudulent
conveyance or fraudulent transfer under any applicable fraudulent conveyance,
fraudulent transfer, bankruptcy, insolvency or other similar laws of any
applicable jurisdiction. To effectuate the foregoing intention, the Holder of
the Security upon which this Guarantee is endorsed [INSERT IF APPLICABLE--and
any Coupons appertaining thereto], by its acceptance thereof, and the Guarantor
hereby agree that the obligations of the Guarantor under Section 13.1 of the
Indenture and the Guarantee endorsed on such Security are limited to the maximum
amount as will, after giving effect to all other contingent and fixed
liabilities of the Guarantor, result in the obligations of the Guarantor under
Section 13.1 of the Indenture and the Guarantee endorsed on such Security and on
any other Securities issued under the Indenture not constituting a fraudulent
conveyance or fraudulent transfer under applicable federal or state law. Subject
to the preceding limitation, the obligations of the Guarantor under this
Guarantee constitute a guarantee of payment in full when due and not merely a
guarantee of collectability.
This Guarantee shall be governed by and construed in accordance with the laws of the State of New York, except as may otherwise be required by mandatory provisions of law.
This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed shall have been executed by the Trustee under the Indenture by manual signature of one of its authorized officers.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed.
Dated:*
WILLAMETTE INDUSTRIES, INC.
Title:
Title:
* Each Guarantee shall be dated the date of the Security upon which it is endorsed.
Exhibit 12.1(a)
WEYERHAEUSER COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollar Amounts in Thousands)
2001 2000 1999
----------- ----------- -----------
Available earnings:
Earnings before interest expense, amortization of
debt expense, income taxes and cumulative effect
of a change in an accounting principle ................ $ 1,006,969 $ 1,677,577 $ 1,276,905
Add interest portion of rental expense ................... 45,655 42,063 27,515
----------- ----------- -----------
Available earnings before cumulative effect of a
change in an accounting principle ....................... $ 1,052,624 $ 1,719,640 $ 1,304,420
=========== =========== ===========
Fixed charges:
Interest expense incurred:
Weyerhaeuser Company and subsidiaries
excluding Weyerhaeuser Real Estate Company,
Weyerhaeuser Financial Services, Inc. and
Gryphon Investments of Nevada, Inc.
and their subsidiaries ............................... $ 353,365 $ 352,341 $ 274,599
Weyerhaeuser Real Estate Company and
consolidated subsidiaries ............................ 62,694 67,733 58,434
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ........................ 6,193 15,823 16,002
Gryphon Investments of Nevada, Inc. .................... 0 0 0
----------- ----------- -----------
Subtotal ..................................... 422,252 435,897 349,035
Less intercompany interest ............................. 924 568 2,230
----------- ----------- -----------
Total interest expense incurred ........................ 421,328 435,329 346,805
----------- ----------- -----------
Amortization of debt expense ........................... 4,642 3,331 3,957
----------- ----------- -----------
Rental expense:
Weyerhaeuser Company and consolidated
subsidiaries ....................................... 128,082 117,307 74,918
Weyerhaeuser Real Estate Company and
consolidated subsidiaries .......................... 8,883 8,779 7,473
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ...................... 0 103 154
Gryphon Investments of Nevada, Inc. .................. 0 0 0
----------- ----------- -----------
136,965 126,189 82,545
----------- ----------- -----------
Interest portion of rental expense ................... 45,655 42,063 27,515
----------- ----------- -----------
Fixed charges ...................................... $ 471,625 $ 480,723 $ 378,277
=========== =========== ===========
Ratio of earnings to fixed charges ....................... 2.23x 3.58x 3.45x
=========== =========== ===========
|
1998 1997
----------- -----------
Available earnings:
Earnings before interest expense, amortization of
debt expense, income taxes and cumulative effect
of a change in an accounting principle ................ $ 756,715 $ 900,886
Add interest portion of rental expense ................... 23,698 24,321
----------- -----------
Available earnings before cumulative effect of a
change in an accounting principle ....................... $ 780,413 $ 925,207
=========== ===========
Fixed charges:
Interest expense incurred:
Weyerhaeuser Company and subsidiaries
excluding Weyerhaeuser Real Estate Company,
Weyerhaeuser Financial Services, Inc. and
Gryphon Investments of Nevada, Inc.
and their subsidiaries ............................... $ 260,014 $ 267,644
Weyerhaeuser Real Estate Company and
consolidated subsidiaries ............................ 60,546 69,165
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ........................ 21,311 40,447
Gryphon Investments of Nevada, Inc. .................... 0 0
----------- -----------
Subtotal ..................................... 341,871 377,256
Less intercompany interest ............................. 13,753 407
----------- -----------
Total interest expense incurred ........................ 328,118 376,849
----------- -----------
Amortization of debt expense ........................... 3,595 3,225
----------- -----------
Rental expense:
Weyerhaeuser Company and consolidated
subsidiaries ....................................... 65,508 66,008
Weyerhaeuser Real Estate Company and
consolidated subsidiaries .......................... 5,361 3,848
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ...................... 225 3,107
Gryphon Investments of Nevada, Inc. .................. 0 0
----------- -----------
71,094 72,963
----------- -----------
Interest portion of rental expense ................... 23,698 24,321
----------- -----------
Fixed charges ...................................... $ 355,411 $ 404,395
=========== ===========
Ratio of earnings to fixed charges ....................... 2.20x 2.29x
=========== ===========
|
Exhibit 12.1(b)
WEYERHAEUSER COMPANY WITH ITS WEYERHAEUSER REAL ESTATE COMPANY, WEYERHAEUSER FINANCIAL SERVICES, INC. AND GRYPHON INVESTMENTS OF NEVADA, INC. SUBSIDIARIES ACCOUNTED FOR ON THE EQUITY METHOD, BUT EXCLUDING THE UNDISTRIBUTED EARNINGS OF THOSE SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollar Amounts in Thousands)
2001 2000 1999
----------- ----------- -----------
Available earnings:
Earnings before interest expense, amortization of
debt expense, income taxes and cumulative effect
of a change in an accounting principle ................ $ 854,436 $ 1,658,343 $ 1,232,822
Add interest portion of rental expense ................... 42,694 39,102 24,973
----------- ----------- -----------
897,130 1,697,445 1,257,795
----------- ----------- -----------
Deduct undistributed earnings of equity affiliates ....... (29,781) (24,021) (20,456)
----------- ----------- -----------
Deduct undistributed earnings before income
taxes of Weyerhaeuser Real Estate Company,
Weyerhaeuser Financial Services, Inc. and
Gryphon Investments of Nevada, Inc.
and their subsidiaries:
Deduct pretax earnings .............................. (264,648) (259,449) (189,885)
Addback dividends paid to Weyerhaeuser .............. 30,000 0 100,000
----------- ----------- -----------
Undistributed earnings ........................ (234,648) (259,449) (89,885)
----------- ----------- -----------
Available earnings before cumulative effect of a change
in an accounting principle ............................. $ 632,701 $ 1,413,975 $ 1,147,454
=========== =========== ===========
Fixed charges:
Interest expense incurred ................................ $ 353,365 $ 352,341 $ 274,599
Amortization of debt expense ............................. 4,642 3,331 3,957
Interest portion of rental expense ....................... 42,694 39,102 24,973
----------- ----------- -----------
Fixed charges ....................................... $ 400,701 $ 394,774 $ 303,529
=========== =========== ===========
Ratio of earnings to fixed charges ....................... 1.58x 3.58x 3.78x
=========== =========== ===========
|
1998 1997
----------- -----------
Available earnings:
Earnings before interest expense, amortization of
debt expense, income taxes and cumulative effect
of a change in an accounting principle ................ $ 719,026 $ 795,637
Add interest portion of rental expense ................... 21,836 22,003
----------- -----------
740,862 817,640
----------- -----------
Deduct undistributed earnings of equity affiliates ....... (29,893) (2,729)
----------- -----------
Deduct undistributed earnings before income
taxes of Weyerhaeuser Real Estate Company,
Weyerhaeuser Financial Services, Inc. and
Gryphon Investments of Nevada, Inc.
and their subsidiaries:
Deduct pretax earnings .............................. (124,422) (111,280)
Addback dividends paid to Weyerhaeuser .............. 190,000 150,000
----------- -----------
Undistributed earnings ........................ 65,578 38,720
----------- -----------
Available earnings before cumulative effect of a change
in an accounting principle ............................. $ 776,547 $ 853,631
=========== ===========
Fixed charges:
Interest expense incurred ................................ $ 260,014 $ 267,644
Amortization of debt expense ............................. 3,595 3,225
Interest portion of rental expense ....................... 21,836 22,003
----------- -----------
Fixed charges ....................................... $ 285,445 $ 292,872
=========== ===========
Ratio of earnings to fixed charges ....................... 2.72x 2.91x
=========== ===========
|
Exhibit 12.1(c)
WEYERHAEUSER COMPANY AND SUBSIDIARIES
COMPUTATION OF PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
(Dollar Amounts in Thousands)
2001
---------
Available pro forma earnings:
Pro forma earnings before pro forma interest expense,
amortization of debt expense and income taxes ....................... $1,303,314
Add interest portion of pro forma rental expense .................... 55,848
---------
Available pro forma earnings $1,359,162
==========
Pro forma fixed charges:
Pro forma interest expense incurred:
Weyerhaeuser Company and subsidiaries
excluding Weyerhaeuser Real Estate Company,
Weyerhaeuser Financial Services, Inc. and
Gryphon Investments of Nevada, Inc.
and their subsidiaries ............................................. $ 842,000
Weyerhaeuser Real Estate Company and
consolidated subsidiaries .......................................... 62,694
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ...................................... 6,193
Gryphon Investments of Nevada, Inc. ................................. 0
---------
Subtotal ....................................................... 910,887
Less intercompany interest ......................................... 924
---------
Total pro forma interest expense incurred .......................... 909,963
---------
Pro forma amortization of debt expense ............................. 59,000
---------
Pro forma rental expense:
Weyerhaeuser Company and consolidated
subsidiaries ....................................................... 158,661
Weyerhaeuser Real Estate Company and
consolidated subsidiaries .......................................... 8,883
Weyerhaueser Financial Services, Inc.
and consolidated subsidiaries ...................................... 0
Gryphon Investments of Nevada, Inc. ................................. 0
---------
167,544
---------
Interest portion of pro forma rental expense ........................ 55,848
---------
Pro forma fixed charges ............................................$1,024,811
==========
Pro forma ratio of earnings to fixed charges ............................. 1.33x
==========
|
Exhibit 12.1(d)
WEYERHAEUSER COMPANY WITH ITS WEYERHAEUSER REAL ESTATE COMPANY, WEYERHAEUSER FINANCIAL SERVICES, INC. AND GRYPHON INVESTMENTS OF NEVADA INC. SUBSIDIARIES ACCOUNTED FOR ON THE EQUITY METHOD, BUT EXCLUDING THE UNDISTRIBUTED EARNINGS OF THOSE SUBSIDIARIES
COMPUTATION OF PRO FORMA RATIO OF EARNINGS TO FIXED CHARGES
(Dollar Amounts in Thousands)
2001
----------
Available pro forma earnings:
Pro forma earnings before pro forma interest expense,
amortization of debt expense and income taxes........ $1,150,000
Add interest portion of pro forma rental expense..... 52,887
----------
1,202,887
----------
Deduct undistributed pro forma earnings of equity
affiliates........................................... (29,000)
----------
Deduct undistributed earnings before income
taxes of Weyerhaeuser Real Estate Company,
Weyerhaeuser Financial Services, Inc. and
Gryphon Investments of Nevada Inc.
and their subsidiaries:
Deduct pretax earnings............................ (264,648)
Addback dividends paid to Weyerhaeuser............ 30,000
----------
Undistributed earnings......................... (234,648)
----------
Available pro forma earnings......................... $939,239
==========
Pro forma fixed charges:
Pro forma interest expense incurred.................. $842,000
Pro forma amortization of debt expense............... 59,000
Interest portion of pro forma rental expense......... 52,887
----------
Pro forma fixed charges........................... $953,887
==========
Pro forma ratio of earnings to fixed charges......... 0.98x
----------
|
EXHIBIT 23.2
CONSENT OF ARTHUR ANDERSEN LLP, INDEPENDENT AUDITORS
As independent auditors, we hereby consent to the incorporation by reference in this registration statement on Form S-4 of our reports dated February 11, 2002 included (or incorporated by reference) in Weyerhaeuser Company's annual report on Form 10-K for the fiscal year ended December 30, 2001, and to all references to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
March 28, 2002
|
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Willamette Industries, Inc.:
We consent to the inclusion in the Form 8-K/A of Weyerhaeuser Company, filed on February 28, 2002, and the incorporation by reference in the Weyerhaeuser Company Registration Statement on Form S-4 No. 333-82376, of our report dated February 11, 2002, relating to the consolidated balance sheets of Willamette Industries, Inc. and subsidiaries as of December 31, 2001 and 2000, and the related consolidated statements of earnings, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 2001, which report appears in the December 31, 2001 annual report on Form 10-K of Willamette Industries, Inc.
/s/ KPMG LLP Portland, Oregon March 28, 2002 |