WEYERHAEUSER COMPANY
(Exact name of Registrant as specified in its charter)
WASHINGTON 91-0470860
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this Registration Statement as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Securities Act"), other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] __________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) 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 OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED(1) REGISTERED(1)(3) PER UNIT(1) PRICE(1)(2)(3) REGISTRATION FEE
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Debt Securities................. $1,000,000,000 100% $1,000,000,000 $250,000
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(1) Debt securities registered hereby may be offered for U.S. dollars or the
equivalent thereof in foreign currencies, currency units or composite
currencies.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o). The proposed maximum offering price will be determined from
time to time by the Registrant in connection with the issuance by the
Registrant of the debt securities registered hereunder.
(3) If any debt securities are issued at an original issue discount, then such
greater amount as may be sold for an aggregate initial offering price of up
to the proposed maximum aggregate offering price set forth above.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED OCTOBER 26, 2001
PROSPECTUS
$1,000,000,000
WEYERHAEUSER COMPANY
DEBT SECURITIES
By this prospectus, we may offer from time to time up to $1,000,000,000 of our debt securities in one or more series. The debt securities will rank on a parity in right of payment with all of our other unsecured and unsubordinated indebtedness.
We will provide the specific terms of the debt securities in supplements to this prospectus. You should read this prospectus and the applicable prospectus supplement, as well as the documents incorporated and deemed to be incorporated by reference in this prospectus, carefully before you invest.
We may offer the debt securities directly or through underwriters, agents or dealers as specified in the applicable prospectus supplement.
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 , 2001
TABLE OF CONTENTS
PAGE
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Special Note Regarding Forward-Looking Statements........... 1
Weyerhaeuser Company........................................ 1
Use of Proceeds............................................. 1
Ratios of Earnings to Fixed Charges......................... 2
Description of Debt Securities.............................. 2
Plan of Distribution........................................ 10
Available Information....................................... 11
Incorporation by Reference.................................. 12
Legal Matters............................................... 12
Experts..................................................... 13
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We have not authorized any person to give any information or to make any representation in connection with this offering 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 to sell or a solicitation of an offer to buy 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 sale under the 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.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated and 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 if our proposed
acquisition of Willamette Industries, Inc. is consummated and with other
anticipated effects of that acquisition, if consummated, 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, including the level of interest rates and housing starts;
- 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 types of logs harvested in our logging 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 any businesses or companies we acquire and to realize anticipated cost savings and synergies, if any, from those acquisitions, and the ability of any 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 to the Canadian dollar, the Euro and the Japanese yen, 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 in the documents incorporated and deemed to be incorporated by reference in this prospectus.
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, 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.
USE OF PROCEEDS
Unless otherwise specified in the applicable prospectus supplement, we
intend to add the net proceeds from the sale of the debt securities to our
general funds and to use the proceeds for general corporate purposes, which may
include working capital, capital expenditures, reduction of our short-term debt
or commercial
paper presently classified as long-term debt and acquisitions. Pending these applications, we may invest the net proceeds in marketable securities.
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.
TWENTY-SIX WEEKS
------------------ FISCAL YEAR
JULY 1, JUNE 25, -------------------------------------
2001 2000 2000 1999 1998 1997 1996
------- -------- ----- ----- ----- ----- -----
Ratio of earnings to fixed
charges(1)........................... 3.10x 3.81x 3.58x 3.45x 2.20x 2.29x 2.59x
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(1) For the purpose of calculating the ratio 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 ratio 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 2.41x and 3.86x for the twenty-six weeks ended July 1, 2001 and June 25, 2000, respectively, and 3.58x, 3.78x, 2.72X, 2.91x and 3.26x for the fiscal years ended December 31, 2000, December 26, 1999, December 27, 1998, December 28, 1997 and December 29, 1996, respectively.
DESCRIPTION OF DEBT SECURITIES
The debt securities are to be issued in one or more series 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 and a third supplemental indenture dated as of October 22, 2001, each between Weyerhaeuser Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as trustee. We refer to the indenture, as so amended and supplemented, as the "Indenture."
We have summarized selected provisions of the Indenture and the debt securities below. This summary is not complete and is subject to, and is qualified in its entirety by reference to, the provisions of the Indenture and the certificates evidencing the debt securities. Forms of the Indenture and of the certificates evidencing the debt securities have been or will be filed with the Securities and Exchange Commission as exhibits to the registration of which this prospectus is a part or as exhibits to documents incorporated or deemed to be incorporated by reference in this prospectus. You may obtain copies of those exhibits in the manner described under "Available Information" in this prospectus.
The following summary provides some general terms and provisions of the series of debt securities to which any prospectus supplement may relate. Other specific terms of a series of debt securities will be described in the applicable prospectus supplement. To the extent that any particular terms of the debt securities described in a prospectus supplement differ from any of the terms described in this prospectus, then those particular terms described in this prospectus will be deemed to have been superseded by the terms described in that prospectus supplement.
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. 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 does not limit the amount of debt securities that we may issue under the Indenture. The Indenture provides that debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on or relating to foreign currencies. The debt securities will be our unsecured and unsubordinated obligations and will rank on a parity right of payment with all of our other unsecured and unsubordinated indebtedness. Unless otherwise provided in the applicable prospectus supplement, we may, without the consent of the holders of any debt securities issued under the Indenture, "reopen" a series of debt securities and issue additional debt securities of that series from time to time.
When we offer a series of debt securities, we will describe the specific terms of that series in a prospectus supplement. Those terms may include, where applicable:
- the title, aggregate principal amount and public offering price of the debt securities of that series;
- the denominations in which the debt securities of that series will be issued, if other than $1,000 and multiples of $1,000;
- the currency, if other than U.S. dollars, or units based on or relating to currencies in which the debt securities of that series will be denominated or in which principal of and premium, if any, and interest, if any, on the debt securities of that series will or may be payable;
- the date of maturity of the debt securities of that series;
- the interest rate or rates, if any, or method by which the interest rate or rates, if any, on the debt securities of that series will be determined;
- the dates on which interest, if any, on the debt securities of that series will be payable;
- the place or places where the principal of and premium, if any, and interest, if any, on the debt securities of that series will be payable;
- any redemption or sinking fund provisions applicable to the debt securities of that series;
- any applicable United States federal income tax consequences with respect to the debt securities of that series, including whether and under what circumstances Weyerhaeuser will pay additional amounts on debt securities of that series held by a person who is not a U.S. person, as defined in the applicable prospectus supplement, in respect of any tax, assessment or other governmental charge withheld or deducted and, if so, whether Weyerhaeuser will have the option to redeem those debt securities rather than to pay those additional amounts; and
- any other specific terms of the debt securities of that series, which may include additional events of default or covenants.
Debt securities may be presented for exchange and registered debt securities may be presented for transfer at the places and subject to the restrictions specified in the Indenture and in the applicable prospectus supplement. These services will be provided without charge, other than any tax or other governmental charge payable in connection an exchange or transfer of debt securities, but subject to the limitations provided in the Indenture.
Debt securities may be issued as Original Issue Discount Securities, bearing either no interest or bearing interest at a rate which at the time of issuance is below the prevailing market rate, to be sold at a substantial discount below their stated principal amount at maturity. Any special United States federal income tax considerations applicable to Original Issue Discount Securities will be described in the applicable prospectus supplement.
Debt securities may be issued with the principal amount payable on any principal payment date, or the amount of interest payable on any interest payment date, to be determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of those debt securities
may receive a principal amount on any principal payment date, or a payment of interest on any interest payment date, that is greater than or less than the amount of principal or interest otherwise payable on those dates, depending upon the value on those dates of the applicable currency, commodity, equity index or other factor. Information as to the methods for determining the amount of principal or interest payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on that date is linked and, if applicable, additional United States federal income tax considerations will be provided in the applicable prospectus supplement.
GLOBAL SECURITIES
The debt securities of a series may be issued in book-entry form and represented by one or more global securities, which we sometimes refer to as "Global Securities". Global Securities will be deposited with or on behalf of a depositary, which we sometimes refer to as the "depositary", identified in the applicable prospectus supplement and will be registered in the name of the depositary or its nominee. Unless and until it is exchanged for debt securities in definitive certificated form under the limited circumstances described below or in any other circumstances that may be described in the applicable prospectus supplement, a 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 its nominee to a successor of the depositary or a nominee of the successor.
Unless otherwise specified in the applicable prospectus supplement, The Depositary Trust Company, or "DTC", will act as depositary for any Global Securities. DTC has advised us that DTC 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 New York Uniform Commercial Code, and
- a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act.
DTC holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, including transfers and pledges, in deposited securities through electronic computerized book-entry changes in participants' accounts, which eliminates the need for physical movement of securities certificates "Direct participants" in DTC include securities brokers and dealers, which may include one or more of the underwriters, agents or dealers involved in the distribution of the debt securities, banks, trust companies, clearing corporations and other organizations. DTC is owned by a number of its direct participants and by the New York Stock Exchange, Inc., the American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Access to the DTC system is also available to others, which we sometimes refer to as "indirect participants", that clear transactions through or maintain a custodial relationship with a direct participant either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases of debt securities within the DTC system must be made by or through direct participants, which will receive a credit for those debt securities on DTC's records. The ownership interest of the actual purchaser of a debt security, which we sometimes refer to as a "beneficial owner", is in turn recorded on the direct and indirect participants' records. Beneficial owners of debt securities will not receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic statements of their holdings, from the direct or indirect participants through which they purchased debt securities. Transfers of ownership interests in Global Securities are to be accomplished by entries made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the Global Securities except under the limited circumstances described below or in any other circumstances that may be described in the applicable prospectus supplement.
To facilitate subsequent transfers, all Global Securities deposited with DTC will be registered in the name of DTC's nominee, Cede & Co. The deposit of debt securities with DTC and their registration in the name of Cede & Co. will not change the beneficial ownership of the debt securities. DTC has no knowledge of the actual beneficial owners of the debt securities. DTC's records reflect only the identity of the direct participants to whose accounts the debt securities are credited, which may or may not be the beneficial owners. DTC's participants are responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption notices will be sent to DTC or its nominee. If less than all of the debt securities of a series are being redeemed, DTC will determine the amount of the interest of each direct participant in the debt securities of that series to be redeemed in accordance with DTC's procedures.
In any case where a vote may be required with respect to the debt securities of a series, neither DTC nor Cede & Co. will give consents for or vote those debt securities. Under its usual procedures, DTC will mail an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns the consent or voting rights of Cede & Co. to those direct participants to whose accounts the debt securities of that series are credited on the record date identified in a listing attached to the omnibus proxy.
Payments of principal of and premium, if any, and interest, if any, on Global Securities will be made to Cede & Co., as nominee of DTC. DTC's practice is to credit direct participants' accounts on the relevant payment date unless DTC has reason to believe that it will not receive payment on the payment date. Payments by direct and indirect participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the account of customers in bearer form or registered in "street name". Those payments will be the responsibility of participants and not of DTC or us, subject to any legal requirements in effect from time to time. Payment of principal, premium, if any, and interest, if any, to Cede & Co. is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and indirect participants.
Except under the limited circumstances described below or under such other circumstances as may be described in the applicable prospectus supplement, purchasers of debt securities will not be entitled to have debt securities registered in their names and will not receive physical delivery of debt securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the debt securities and the Indenture.
The laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. These laws may impair the ability to transfer or pledge beneficial interests in Global Securities.
DTC is under no obligation to provide its services as depositary for the debt securities and may discontinue providing its service at any time. Neither we nor the trustee will have any responsibility for the performance by DTC or its direct or indirect participants under the rules and procedures governing DTC.
As noted above, beneficial owners of debt securities generally will not receive certificates representing their ownership interests in the debt securities. However, the Indenture provides that if:
- the depositary for a Global Security notifies us that it is unwilling or unable to continue as depositary for that Global Security or the depositary for the debt securities of that series 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 debt securities of any series will no longer be represented by Global Securities, or
- an Event of Default with respect to the debt securities of a series has occurred and is continuing,
we will execute and the trustee will authenticate and deliver definitive certificated debt securities of that series in exchange for interests in the Global Security. We anticipate that those definitive certificated debt securities will be registered in the name or names as the depositary instructs the trustee and that those instructions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the Global Securities.
We obtained the information in this section and elsewhere in this prospectus concerning DTC and DTC's book-entry system from sources that we believe to be reliable, but we take no responsibility for the accuracy of this information.
CERTAIN RESTRICTIONS
The following restrictions will apply to the debt securities of each series unless the applicable prospectus supplement provides 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 of Weyerhaeuser's 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)
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 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 the performance of any
other covenant or agreement in the Indenture applicable to all outstanding debt
securities or due to specified 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 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)
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 provision will apply to the debt securities of each series unless the applicable prospectus supplement provides 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," 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, 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)
MODIFICATION OF THE INDENTURE
The Indenture provides that Weyerhaeuser and the trustee may enter into supplemental indentures without the consent of the holders of any debt securities to, among other things:
- secure the debt securities of one or more series,
- 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 or supplement any defect or inconsistency in the Indenture or to make other changes the Board of Directors deems necessary or 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 enter into supplemental indentures for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Indenture or modifying 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 supplemental indenture described in this paragraph. (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)
APPLICABLE LAW
The debt securities and the Indenture will be governed by and construed in accordance with the laws of the State of New York. (Section 11.8)
CONCERNING THE TRUSTEE
The Chase Manhattan Bank is the trustee under the Indenture. 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.
PLAN OF DISTRIBUTION
We may sell the debt securities through underwriters, agents or dealers or directly to purchasers. Debt securities may offered from time to time in one or more transactions at a fixed price or prices, which may be changed, or at market prices prevailing at the time of sale, at prices related to prevailing market prices, or at negotiated prices. We may also, from time to time, authorize agents or dealers to offer and sell debt securities upon the terms and conditions stated in the applicable prospectus supplement. In connection with the sale of debt securities, underwriters or agents may receive compensation from us in the form of discounts or commissions and may also receive commissions from purchasers of debt securities for whom they may act as agents. Underwriters may sell securities to or through dealers, and those dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and commissions from the purchasers for whom they may act as agents. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a reasonable efforts basis and a dealer will purchase debt securities as principal and may then resell those debt securities at varying prices to be determined by the dealer.
Any compensation paid by us to any underwriters or agents in connection with the offering of debt securities, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be stated in the applicable prospectus supplement. Dealers and agents participating in the distribution of debt securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of debt securities may be deemed to be underwriting discounts and commissions. Underwriters, dealers and agents may be entitled, under agreements entered into with us, to indemnification against and contribution toward specified liabilities, including liabilities under the Securities Act, and to reimbursement by us for expenses.
Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc. and/or Goldman, Sachs & Co. and/or other underwriters named in the applicable prospectus supplement may act as managing underwriter or managing underwriters with respect to an offering of debt securities effected through underwriters. Only underwriters named in the prospectus supplement are deemed to be underwriters in connection with the debt securities and if Morgan Stanley & Co. Incorporated, J.P. Morgan Securities Inc. or Goldman, Sachs & Co. is not named in the prospectus supplement, it will not be a party to the underwriting agreement relating to those debt securities, will not be purchasing any of those debt securities from us in connection with that offering and will have no direct or indirect participation in the underwriting of those debt securities, although it may
participate in the distribution of those debt securities under circumstances where it may be entitled to a dealer's commission.
In order to facilitate the offering of the debt securities, underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the debt securities or any other securities the prices of which may be used to determine payments on the debt securities. Specifically, the underwriters may overallot in connection with the offering, creating a short position in the debt securities for their own account. In addition, to cover overallotments or to stabilize the price of the debt securities or of any such other securities, the underwriters may bid for, and purchase, debt securities or any such other securities in the open market. Finally, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the debt securities in the offering if the syndicate repurchases previously distributed debt securities in transactions to cover syndicate short positions, in stabilization transactions or otherwise. Any of these activities may stabilize or maintain the market price of the debt securities above independent market levels. The underwriters are not required to engage in these activities, and may end any of these activities at any time.
We may solicit offers to purchase debt securities directly from, and we may sell debt securities directly to, institutional investors or others. The terms of any of those sales, including the terms of any bidding or auction process, if utilized, will be described in the applicable prospectus supplement.
If so indicated in the applicable prospectus supplement, we may authorize agents and underwriters to solicit offers by certain institutions to purchase debt securities from us at the public offering price specified in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a future date stated in the prospectus supplement. Institutions with whom delayed delivery contracts may be made include commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and other institutions but in all cases must be approved by us. A delayed delivery contract will not be subject to any conditions except as follows:
- the purchase by the applicable institution of the debt securities covered by that contract is not prohibited by the laws of the jurisdiction to which that institution is subject, and
- if any of the applicable debt securities are being sold by underwriters, we have sold those debt securities to those underwriters.
A commission indicated in the applicable prospectus supplement will be paid to any underwriters or agents soliciting purchases of debt securities pursuant to delayed delivery contracts that are accepted by us.
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 office located at 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. 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-3 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 applicable prospectus supplement 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 31, 2000;
- Quarterly Reports on Form 10-Q for the thirteen weeks ended April 1, 2001 and the twenty-six weeks ended July 1, 2001; and
- Current Reports on Form 8-K filed on January 26, 2001, April 20, 2001, July 27, 2001, August 2, 2001, October 3, 2001 and October 25, 2001.
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 before the termination of this offering.
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 and the information included in the applicable prospectus supplement.
LEGAL MATTERS
The validity of the debt securities will be passed upon for us by Lorrie D. Scott, Esq., Senior Legal Counsel of Weyerhaeuser Company. Sidley Austin Brown & Wood LLP, San Francisco, California will act as counsel for any underwriters or agents.
EXPERTS
The consolidated balance sheets of Weyerhaeuser Company for the fiscal year ended December 31, 2000 and December 26, 1999 and the related consolidated statements of earnings, cash flows and shareholders' interest and financial statements schedule II -- valuation and qualifying accounts of Weyerhaeuser Company for the fiscal years ended December 31, 2000, December 26, 1999 and December 27, 1998 incorporated by reference in this prospectus have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are incorporated in this prospectus in reliance upon the authority of said firm as experts in accounting and auditing in giving said reports.
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
All of the following expenses, other than the SEC filing fee, are estimated.
Securities and Exchange Commission filing fee............... $250,000
Legal fees and expenses..................................... 10,000
Rating agencies' fees....................................... 500,000
Printing.................................................... 100,000
Trustee's fees and expenses................................. 15,000
Accountants' fees and expenses.............................. 40,000
Blue Sky fees and expenses.................................. 5,000
Miscellaneous............................................... 10,000
--------
Total............................................. $930,000
========
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ITEM 15. INDEMNIFICATION.
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 such directors or officers.
Under Section VII of the Underwriting Agreement Standard Provisions (Debt) incorporated by reference in the Underwriting Agreement filed as an exhibit hereto, the underwriters agree to indemnify, under certain conditions, the Registrant, its directors, certain of its officers and persons, if any, who control the Registrant within the meaning of the Securities Act against certain liabilities. The Registrant, its directors, certain of its officers and persons, if any, who control the Registrant may be entitled to similar indemnity under other agreements entered into with underwriters, agents and dealers involved in the distribution of the debt securities from time to time.
ITEM 16. EXHIBITS.
(1)(a) Form of Underwriting Agreement, including Underwriting
Agreement Standard Provisions (Debt) and form of Delayed
Delivery Contract.
(4)(a) Indenture dated as of April 1, 1986 between Weyerhaeuser
Company and The Chase Manhattan Bank (formerly known as
Chemical Bank), as Trustee (incorporated by reference from
the Registration Statement on Form S-3, Registration No.
333-36753).
(4)(b) First Supplemental Indenture dated as of February 15, 1991
between Weyerhaeuser Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (incorporated
by reference from the Registration Statement on Form S-3,
Registration No. 33-52982).
(4)(c) Second Supplemental Indenture dated as of February 1, 1993
between Weyerhaeuser Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (incorporated
by reference from the Registration Statement on Form S-3,
Registration No. 33-59974).
(4)(d) Third Supplemental Indenture dated as of October 22, 2001
between Weyerhaeuser Company and The Chase Manhattan Bank.
(4)(e) Form of certificate evidencing the debt securities.
(5) Opinion of Lorrie D. Scott, Esq., Senior Legal Counsel of
Weyerhaeuser Company.
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(12) Computation of Ratios of Earnings to Fixed Charges:
(a) Weyerhaeuser Company and Subsidiaries.
(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.
(23)(a) Consent of Lorrie D. Scott, Esq. (contained in Exhibit 5
hereto).
(23)(b) Consent of Arthur Andersen LLP, independent public
accountants.
(24) Power of Attorney (contained on the signature pages hereof).
(25) Statement of Eligibility and Qualification on Form T-1 of
The Chase Manhattan Bank, as Trustee.
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ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933,
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective Registration Statement,
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement,
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment 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.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
The undersigned Registrant hereby undertakes takes 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 herein, 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 and controlling persons of the Registrant pursuant to the foregoing provisions (except for the insurance referred to in the second paragraph of Item 15) or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as
II-2
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 Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the County of King, State of Washington, on October 25, 2001.
WEYERHAEUSER COMPANY
By /s/ CLAIRE S. GRACE
------------------------------------
Claire S. Grace
Corporate Secretary and
Assistant General Counsel
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert A. Dowdy and Claire S. Grace and each of them, as such person's true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution and in such person's name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, any related Registration Statement filed pursuant to Rule 462(b) promulgated under the Securities Act of 1933 and any other documents filed in connection with any such Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as such person could or might do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this 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, Director and October 25, 2001
----------------------------------------------------- Chairman
Steven R. Rogel of the Board
(Principal Executive Officer)
/s/ WILLIAM C. STIVERS Senior Vice President and October 25 2001
----------------------------------------------------- Chief
William C. Stivers Financial Officer
(Principal Financial Officer)
/s/ KENNETH J. STANCATO Vice President and Controller October 25 2001
----------------------------------------------------- (Principal Accounting Officer)
Kenneth J. Stancato
/s/ W. JOHN DRISCOLL Director October 25 2001
-----------------------------------------------------
W. John Driscoll
/s/ RICHARD F. HASKAYNE Director October 25 2001
-----------------------------------------------------
Richard F. Haskayne
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II-4
SIGNATURE TITLE DATE
--------- ----- ----
<no_color>
/s/ ROBERT J. HERBOLD Director October 25, 2001
-----------------------------------------------------
Robert J. Herbold
/s/ MARTHA R. INGRAM Director October 25, 2001
-----------------------------------------------------
Martha R. Ingram
/s/ JOHN I. KIECKHEFER Director October 25, 2001
-----------------------------------------------------
John I. Kieckhefer
/s/ ARNOLD G. LANGBO Director October 25, 2001
-----------------------------------------------------
Arnold G. Langbo
/s/ DONALD F. MAZANKOWSKI, Director October 25, 2001
-----------------------------------------------------
Rt. Hon. Donald F. Mazankowski
/s/ WILLIAM D. RUCKELSHAUS Director October 25, 2001
-----------------------------------------------------
William D. Ruckelshaus
/s/ RICHARD H. SINKFIELD Director October 25, 2001
-----------------------------------------------------
Richard H. Sinkfield
/s/ JAMES N. SULLIVAN Director October 25, 2001
-----------------------------------------------------
James N. Sullivan
/s/ CLAYTON K. YEUTTER Director October 25, 2001
-----------------------------------------------------
Clayton K. Yeutter
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EXHIBIT INDEX
1(a) Form of Underwriting Agreement, including Underwriting Agreement
Standard Provisions (Debt) and form of Delayed Delivery Contract.
4(a) Indenture dated as of April 1, 1986 between Weyerhaeuser Company
and The Chase Manhattan Bank (formerly known as Chemical Bank),
as Trustee (incorporated by reference from the Registration
Statement on Form S-3, Registration No. 333-36753).
4(b) First Supplemental Indenture dated as of February 15, 1991
between Weyerhaeuser Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (incorporated by
reference from the Registration Statement on Form S-3,
Registration No. 33-52982).
4(c) Second Supplemental Indenture dated as of February 1, 1993
between Weyerhaeuser Company and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (incorporated by
reference from the Registration Statement on Form S-3,
Registration No. 33-59974)
4(d) Third Supplemental Indenture dated as of October 22, 2001 between
Weyerhaeuser Company and The Chase Manhattan Bank.
4(e) Form of certificate evidencing the debt securities.
5 Opinion of Lorrie D. Scott, Esq., Senior Legal Counsel of
Weyerhaeuser Company.
12 Computation of Ratios of Earnings to Fixed Charges:
(a) Weyerhaeuser Company and Subsidiaries.
(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.
23(a) Consent of Lorrie D. Scott, Esq. (contained in Exhibit 5 hereto).
23(b) Consent of Arthur Andersen LLP, independent public accountants.
24 Power of Attorney (contained on the signature pages hereof).
25 Statement of Eligibility and Qualification on Form T-1 of The
Chase Manhattan Bank, as Trustee.
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EXHIBIT 1(a)
UNDERWRITING AGREEMENT
_, 200_
Weyerhaeuser Company
P.O. Box 9777
Federal Way, Washington 98063-9777
Dear Sirs and Mesdames:
We (the "MANAGERS") are acting on behalf of the underwriter or underwriters (including ourselves) named below (such underwriter or underwriters, as the case may be, being herein called the "UNDERWRITERS"), and we understand that Weyerhaeuser Company, a Washington corporation (the "COMPANY"), proposes to issue and sell $_,000,000 aggregate principal amount of its _% Notes/Debentures due _ (the "OFFERED SECURITIES"). The Offered Securities will be issued pursuant to the provisions of an Indenture dated as of April 1, 1986, as amended and supplemented by the First Supplemental Indenture thereto dated as of February 15, 1991 and the Second Supplemental Indenture thereto dated as of February 1, 1993 (as so amended and supplemented, the "INDENTURE"), each between the Company and The Chase Manhattan Bank (formerly Chemical Bank), as trustee (the "TRUSTEE").
Subject to the terms and conditions set forth and incorporated by reference herein, the Company hereby agrees to sell to the several Underwriters, and each Underwriter agrees, severally and not jointly, to purchase from the Company the respective principal amount of Offered Securities set forth below opposite its name at a purchase price equal to _% of the principal amount of such Offered Securities [INSERT IF APPLICABLE--, plus accrued and unpaid interest from _, 200_].
Principal Amount of
Name Offered Securities
---- -------------------
-................................................. $
-.................................................
-.................................................
-.................................................
------------------
Total......................................... $
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The Underwriters will pay for such Offered Securities in Federal or other immediately available funds upon delivery thereof to [NAME OF LEAD MANAGER] in New York, New York at 10:00 A.M. (New York time) on_, 200_ or at such other time, not later than 10:00 A.M. (New York time) on_, 200_, as shall be jointly designated by the Managers and the Company.
The Offered Securities shall have the terms set forth in the Prospectus dated_, 2001 (the "Base Prospectus") and the Prospectus Supplement dated_, 200_ (the "Prospectus Supplement"), including the following:
Maturity Date: _ Interest Rate: _% per annum, accruing from_, 200_ Interest Payment Dates: _ and_, commencing_, 200_ |
[INSERT IF OFFERED SECURITIES ARE REDEEMABLE--] The Offered Securities
are subject to redemption, in whole or from time to time in part, at the option of the Company at the redemption prices calculated as provided in the Prospectus Supplement. [INSERT IF OFFERED SECURITIES WILL BE ISSUED IN BOOK-ENTRY FORM--] The Offered Securities will be issued in the form of one or more global securities registered in the name of Cede & Co., nominee for Depository Trust Company ("DTC"), and deposited with a custodian on behalf of DTC.
All provisions contained in the document entitled Weyerhaeuser Company
Underwriting Agreement Standard Provisions (Debt) (_, 200_) (the "Standard
Provisions"), a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that the term "MANAGER" as used therein shall, for purposes of this
Agreement (including the Standard Provisions), mean [INSERT NAMES OF MANAGING
UNDERWRITERS].
[SIGNATURE PAGE FOLLOWS]
Very truly yours,
Acting severally on behalf of themselves and the several Underwriters named herein.
By: _
By: ____________________________________ Title:
By: _
By: ____________________________________ Title:
Accepted and agreed as of the date
first written above.
WEYERHAEUSER COMPANY
By: __________________________________
Name:
Title:
WEYERHAEUSER COMPANY
(a Washington corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
(_, 200_)
From time to time, Weyerhaeuser Company, a Washington corporation (the "COMPANY"), may enter into one or more underwriting agreements that provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as this "AGREEMENT". Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the "SECURITIES") to be issued pursuant to the provisions of the Indenture dated as of April 1, 1986, as amended and supplemented by the First Supplemental Indenture thereto dated as of February 15, 1991 and the Second Supplemental Indenture thereto dated as of February 1, 1993 (as so amended and supplemented, the "INDENTURE"), each between the Company and The Chase Manhattan Bank (formerly Chemical Bank), as trustee (the "TRUSTEE"). The Securities will have varying designations, maturities, rates and times of payment of interest, selling prices, redemption terms and other terms.
The Company has filed with the Securities and Exchange Commission (the "COMMISSION") a registration statement (No. 333-_) including a prospectus relating to the Securities and has filed or will file with the Commission a prospectus supplement or supplements specifically relating to the Offered Securities pursuant to Rule 424 under the Securities Act of 1933. The term "REGISTRATION STATEMENT" means the registration statement as amended to the date of the Underwriting Agreement. The term "BASIC PROSPECTUS" means the prospectus dated _, 2001 relating to the Securities in the form first provided to the Underwriters for use in confirming sales of the Offered Securities. The term "PROSPECTUS" means the Basic Prospectus together with the prospectus supplement (other than a preliminary prospectus supplement) specifically relating to the Offered Securities in the form first provided to the Underwriters for use in confirming sales of the Offered Securities. The term "PRELIMINARY PROSPECTUS" means any preliminary form of the Prospectus used in connection with the offering of the Offered Securities. If the Company files an abbreviated registration statement to register Offered Securities pursuant to Rule 462(b) under the Securities Act of 1933 (the "RULE 462(b) REGISTRATION STATEMENT), then any reference in this Agreement to the term "Registration Statement" shall be deemed to include such Rule 462(b) Registration Statement. As used herein, the terms "REGISTRATION STATEMENT", "BASIC PROSPECTUS", "PROSPECTUS" and "PRELIMINARY PROSPECTUS" shall include, in each case, the materials, if any, incorporated or deemed to be incorporated by reference therein.
The term "UNDERWRITERS' SECURITIES" means the Offered Securities to be purchased by the Underwriters pursuant to this Agreement. The term "CONTRACT SECURITIES" means the Offered Securities, if any, to be purchased pursuant to the delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to delayed delivery contracts, the Company hereby authorizes the Underwriters to solicit offers to purchase Contract Securities on the terms and subject to the conditions set forth in the Prospectus pursuant to delayed delivery contracts substantially in the form of Schedule I attached hereto ("DELAYED DELIVERY CONTRACTS") but with such changes therein as the Company may authorize or approve. Delayed Delivery Contracts are to be with institutional investors approved by the Company and of the types set forth in the Prospectus. On the Closing Date (as hereinafter defined), the Company will pay the Manager as compensation, for the accounts of the Underwriters, the fee set forth in the Underwriting Agreement in respect of the Contract Securities. The Underwriters will not have any responsibility in respect of the validity or the performance of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with institutional investors, the Contract Securities shall be deducted from the Offered Securities to be purchased by the several Underwriters and the aggregate principal amount of Offered Securities to be purchased by each Underwriter shall be reduced pro rata in proportion to the principal amount of Offered Securities set forth opposite such Underwriter's name in the Underwriting Agreement, except to the extent that the Manager determines that such reduction shall be otherwise and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to make a public offering of their respective portions of the Underwriters' Securities as soon after this Agreement is entered into as in the Manager's judgment is advisable. The terms of the public offering of the Underwriters' Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made in Federal or other immediately available funds in New York City at the time and on the date set forth in the Underwriting Agreement, upon delivery to the Manager for the respective accounts of the several Underwriters of the Underwriters' Securities registered in such names and in such denominations as the Manager shall request in writing not less than one business day prior to the date of delivery. The time and date of such payment and delivery with respect to the Underwriters' Securities are herein referred to as the "CLOSING DATE".
V.
The several obligations of the Underwriters under this Agreement are subject to the following conditions:
(a)
(i) subsequent to the execution and delivery of the Underwriting Agreement, there shall not have been any downgrading, nor any notice given of
any intended or potential downgrading or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company's securities by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act of 1933;
(ii) subsequent to the execution and delivery of the Underwriting Agreement, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the Underwriting Agreement), that, in the judgment of the Manager, is material and adverse and that makes it, in the judgment of the Manager, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus; and
(iii) the Manager shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied on or before the Closing Date.
(b) The Manager shall have received on the Closing Date an opinion of Lorrie D. Scott, Senior Legal Counsel of the Company, or other counsel satisfactory to the Manager, dated the Closing Date, to the effect set forth as Exhibit A.
(c) The Manager shall have received on the Closing Date an opinion of Sidley Austin Brown & Wood LLP, counsel for the Underwriters, dated the Closing Date and in form and substance satisfactory to the Manager, with respect to this Agreement, the Offered Securities, the Indenture, the Delayed Delivery Contracts (if any), the Registration Statement and the Prospectus and such other matters as the Manager may request, it being understood that, in rendering such opinion, such counsel need not express any opinion with respect to matters governed by or arising under the laws of the State of Washington.
(d) The Manager shall have received on the Closing Date a letter dated the Closing Date, in form and substance satisfactory to the Manager, from Arthur Andersen & Co., independent public accountants, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in or incorporated or deemed to be incorporated by reference into the Registration Statement and the Prospectus and any amendments or supplements thereto.
VI.
In further consideration of the agreements of the Underwriters contained in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, three signed copies of the Registration Statement including exhibits and materials, if any, incorporated or deemed to be incorporated by reference therein and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated or deemed to be incorporated by reference therein and any supplements and amendments thereto as the Manager may reasonably request. The terms "SUPPLEMENT" and "AMENDMENT" or "AMEND" as used in this Agreement with respect to the Registration Statement or Prospectus shall include all documents filed by the Company with the Commission subsequent to the date of the Basic Prospectus, pursuant to the Securities Exchange Act of 1934, which are incorporated or deemed to be incorporated by reference in the Registration Statement and Prospectus.
(b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered Securities, to furnish the Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public offering of the Offered Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered with respect thereto, any event shall occur as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to amend or to supplement the Prospectus to comply with law, forthwith to prepare and furnish, at its own expense, to the Underwriters, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(d) To qualify the Offered Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Manager shall reasonably request and to pay all expenses (including reasonable fees and disbursements of counsel) in connection with such qualification and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdiction as the Manager may designate.
(e) To make generally available to the Company's security holders as soon as practicable an earnings statement covering a twelve-month period beginning after the date of the Underwriting Agreement, which shall satisfy the provisions of Section 11(a) of the Securities Act of 1933 and the applicable rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the Closing Date not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Offered Securities without the prior written consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that (i) each document, if any, filed or to be filed pursuant to the Securities Exchange Act of 1934 and incorporated or deemed to be incorporated by reference in the Prospectus complied or will comply, as the case may be, when so filed in all material respects with such Act and the applicable rules and regulations thereunder, (ii) each part of the Registration Statement (including the documents incorporated or deemed to be incorporated by reference therein) filed with the Commission pursuant to the Securities Act of 1933 relating to the Securities, when such part became effective under the Securities Act of 1933, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iii) each preliminary prospectus, if any, filed pursuant to Rule 424 under the Securities Act of 1933 complied when so filed in all material respects with such Act and the applicable rules and regulations thereunder, (iv) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act of 1933 and the applicable rules and regulations thereunder and (v) the Registration Statement and the Prospectus do not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; except that these representations and warranties do not apply to statements or omissions in the Registration Statement, any preliminary prospectus or the Prospectus based upon information furnished to the Company in writing by any Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934 from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement, any preliminary prospectus or the Prospectus (if
used within the period set forth in paragraph (c) of Article VI hereof and as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Company by any Underwriter expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of Section 15 of the Securities Act of 1933 or
Section 20 of the Securities Exchange Act of 1934 to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter expressly for use in the Registration Statement, any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "INDEMNIFIED PARTY") shall promptly notify the person against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties, and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Manager in the case of parties indemnified pursuant to the second preceding paragraph and by the Company in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the
Underwriters on the other in connection with the offering of the Offered Securities shall be deemed to be in the same respective proportions as the total net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company and the total underwriting and discounts received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate public offering price of the Offered Securities as set forth in the table on the cover of the Prospectus. The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Article VII were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses (including expenses of local counsel) reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Article VII, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten and distributed to the public by such Underwriter were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act of 1933) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Article VII are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The Underwriters' obligations to contribute pursuant to this Article VII are several, in proportion to the respective principal amounts of Offered Securities purchased by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf of the
Company, its directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the Manager's absolute discretion, by notice given to the Company, if (a) after the execution and delivery of the Underwriting Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the judgment of the Manager, is material and adverse and (b) in the case of any of the events specified in clauses (a) (i) through (iv), such event, singly or together with any other such event, makes it, in the judgment of the Manager, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus.
IX.
If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase the Offered Securities which it or they have agreed to purchase under the Underwriting Agreement on such date, and the aggregate principal amount of Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of the Offered Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions which the principal amount of Offered Securities set forth opposite their names in the Underwriting Agreement pursuant to which the Offered Securities are being purchased bear to the aggregate principal of Offered Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Manager may specify, to purchase the Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided, however, that in no event shall the principal amount of Offered Securities which any Underwriter has agreed to purchase pursuant to such Underwriting Agreement be increased pursuant to this Article IX by an amount in excess of one-ninth of such principal amount of Offered Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered Securities and the aggregate principal amount of Offered Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Offered Securities to be purchased on such date, and arrangements satisfactory to the Manager and the Company for the purchase of such Offered Securities are not made within 36 hours after such default, this Agreement will terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case the non-defaulting Underwriters shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters or any of them because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement, with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with the Offered Securities.
This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York.
SCHEDULE I
DELAYED DELIVERY CONTRACT
[DATE]
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Weyerhaeuser Company, a Washington corporation (the "COMPANY"), and the Company agrees to sell to the undersigned
$ . . . . . . . . . . . .
principal amount of the Company's [state title of issue] (the "SECURITIES"), offered by the Company's prospectus dated __________ and Prospectus Supplement dated __________, receipt of copies of which are hereby acknowledged, at a purchase price of ___% of the principal amount thereof plus accrued interest and on the further terms and conditions set forth in this contract. The undersigned does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the principal amounts and on the delivery dates set forth below:
Delivery Date Principal Amount Plus Accrued Interest From: ------------- ---------------- --------------------------- ___________________ $__________ ___________________ ___________________ $__________ ___________________ ___________________ $__________ ___________________ |
Each such date on which Securities are to be purchased hereunder is hereinafter referred to as a "DELIVERY DATE".
Payment for the Securities which the undersigned has agreed to purchase on each Delivery Date shall be made by wire transfer of Federal or other immediately available funds to an account in the United States of America designated by the Company at 10:00 A.M. (New York time) on the Delivery Date, upon delivery [(which delivery shall be made by book-entry transfer through the facilities of The Depository Trust Company)] to the undersigned of the Securities to be purchased by the undersigned on the Delivery Date, in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date.
Schedule I-1
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "UNDERWRITERS") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any purchaser under any other Delayed Delivery Contract shall not relieve the undersigned of its obligations under this contract.
This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.
If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth below. This will become a binding contract, as of the date first above written, between the Company and the undersigned when such counterpart is so mailed or delivered.
Schedule I-2
This contract shall be governed by and construed in accordance with the laws of the State of New York.
Yours very truly,
Accepted:
Weyerhaeuser Company
By ________________________
Name:
Title:
Schedule I-3
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the Purchaser with whom details of delivery on the Delivery Date may be discussed is as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
___________________ ___________________ ___________________
___________________ ___________________ ___________________
___________________ ___________________ ___________________
|
Schedule I-4
EXHIBIT A
Opinion of Lorrie Scott, Senior Legal Counsel of the Company
The opinion of Lorrie Scott, Senior Legal Counsel of the Company, to be delivered pursuant to Article V, paragraph (b) of the document entitled Weyerhaeuser Company Underwriting Agreement Standard Provisions (Debt) shall be to the effect that:
(i) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the State of Washington and is duly qualified to transact business and is in good standing in each other state of the United States in which the conduct of its business or the ownership or leasing of property requires such qualification, except to the extent that such failure to be duly qualified and in good standing as a foreign corporation in any such other state would not have a material adverse effect upon the Company and its subsidiaries, taken as a whole, or on the Company's ability to perform its obligations under the Underwriting Agreement, the Delayed Delivery Contracts (if applicable), the Indenture or the Offered Securities,
(ii) the Indenture has been duly authorized, executed and delivered by the Company and (assuming due authorization, execution and delivery of the Indenture by the Trustee) is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors' rights generally and by general principles of equity and public policy, and has been duly qualified under the Trust Indenture Act of 1939,
(iii) the Offered Securities have been duly authorized by the Company , and when executed by the Company and authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement or by institutional investors, if any, pursuant to Delayed Delivery Contracts, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors' rights generally and by general principles of equity and public policy,
(iv) the Underwriting Agreement has been duly authorized, executed and delivered by the Company,
(v) the Delayed Delivery Contracts, if any, have been duly authorized, executed and delivered by the Company and are valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer or other similar laws relating to or affecting creditors' rights generally and by general principles of equity and public policy,
(vi) the execution, delivery and performance of the Underwriting Agreement and the issuance and sale of the Offered Securities by the Company as provided therein will not result in any violation of any provisions of applicable law or the articles of incorporation or bylaws of the Company or of any indenture, mortgage or other agreement known to such counsel to which the Company or any of its subsidiaries is bound, and no consent, approval or authorization of any governmental body is required, except such as are specified and have been obtained and except that no opinion need be expressed with respect to consents, approvals or authorizations required under state securities or "blue sky" laws,
(vii) the statements in the Prospectus under [INSERT OTHER CAPTIONS OR AMEND AS APPROPRIATE--] ["Recent Developments--Proposed Business Combination Transaction Between Weyerhaeuser Company and Willamette Industries, Inc.",] "Description of _", "Description of Debt Securities", "Plan of Distribution" and "Underwriters", insofar as such statements constitute a summary of the terms of [the Company's tender offer for Willamette Industries, Inc. or of] the documents [(including the Proposed Credit Facilities as (defined in the Prospectus)], the Indenture, the Offered Securities and, if applicable, the Delayed Delivery Contracts) or proceedings referred to therein, fairly present the information called for with respect to such tender offer, documents and proceedings,
(viii) the transactions contemplated by the Underwriting Agreement, the Delayed Delivery Contracts (if applicable), the Offered Securities and the Indenture, to the extent that any such transaction may be considered a "Business Transaction" as defined in Article X of the articles of incorporation of the Company ("Article X"), have been duly approved as provided in Section (2) of Article X, and
(ix) (1) such counsel is of the opinion that each document filed pursuant to the Securities Exchange Act of 1934 (except for financial statements and schedules and other financial and statistical data contained therein, as to which such counsel need not express any opinion) and incorporated or deemed to be incorporated by reference in the Prospectus complied when so filed as to form in all material respects with such Act and the rules and regulations thereunder, (2) such counsel is of the opinion that the Registration Statement and any Rule 462(b) Registration Statement (except for financial statements and schedules and other financial or statistical data contained therein, as to which such counsel need not express any opinion), at the respective times they were declared effective under the Securities Act of 1933, complied, and the Prospectus, as amended or supplemented, if applicable (except for financial statements and schedules and other financial and statistical data contained therein, as to which such counsel need not express any opinion), on the date of such opinion, complies, as to form in all material respects with the Securities Act of 1933 and the rules and regulations thereunder, (3) while such counsel has not verified the accuracy or completeness of the other information furnished in the Registration Statement, any Rule 462(b) Registration Statement or the Prospectus, such counsel has generally reviewed and discussed with certain officers of
the Company, its independent public accountants, the representatives of
the Underwriters and their counsel the information furnished and, on the
basis thereof, but without independent check or verification except as
specified, such counsel believes that (except for financial statements
and schedules and other financial and statistical data contained
therein, as to which such counsel need not express any belief), each
part of the Registration Statement and any Rule 462(b) Registration
Statement (including the documents incorporated or deemed to be
incorporated by reference therein) filed with the Commission, when such
part became effective, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(4) while such counsel has not verified the accuracy or completeness of
the other information furnished in the Registration Statement, any Rule
462(b) Registration Statement or the Prospectus, such counsel has
generally reviewed and discussed with certain officers of the Company,
its independent public accountants, the representatives of the
Underwriters and their counsel the information furnished and, on the
basis thereof, but without independent check or verification except as
specified, such counsel believes that the Registration Statement, any
Rule 462(b) Registration Statement and the Prospectus (except for
financial statements and schedules and other financial and statistical
data contained therein, as to which such counsel need not express any
belief), on the date of the Underwriting Agreement did not, and the
Prospectus (except for financial statements and schedules and other
financial and statistical data contained therein, as to which such
counsel need not express any belief), as amended or supplemented, if
applicable, on the date of such opinion does not, contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion shall state that it is limited to the federal laws of the United States of America and the laws of the State of Washington and, insofar as the Underwriting Agreement, the Indenture, the Offered Securities, the Delayed Delivery Contracts (if applicable) or any other instruments or agreements referred to in such opinion are governed by the laws of the State of New York or any other jurisdiction (other than the federal laws of the United States of America and the laws of the State of Washington), such counsel has assumed that the laws of the State of New York or any such other jurisdiction, as the case may be, are the same as the laws of the State of Washington.
Such opinion shall be delivered to the Underwriters at the request of the Company and shall so state therein.
EXHIBIT 4(d)
THIRD SUPPLEMENTAL INDENTURE (this "THIRD SUPPLEMENTAL INDENTURE") dated as of October 22, 2001 between WEYERHAEUSER COMPANY, a Washington corporation (the "ISSUER"), and THE CHASE MANHATTAN 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") and the Second Supplemental Indenture dated as of February 1, 1993 (the "SECOND SUPPLEMENTAL INDENTURE"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture and the Second Supplemental Indenture, is hereinafter called the "PRIOR INDENTURE" and the Prior Indenture, as amended and supplemented by this Third 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, 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 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 Third 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 Third Supplemental Indenture to supplement and amend the Prior Indenture in certain respects to establish a series of Securities issued pursuant to the Indenture designated as the "5.95% Notes due 2008"; and
WHEREAS the Issuer has requested that the Trustee execute and deliver this Third Supplemental Indenture and has certified that all requirements necessary to make this Third Supplemental Indenture a valid instrument in accordance with its terms have been satisfied, and that the execution and delivery of this Third 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 Notes (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, solely insofar as it relates to the Notes, to add the following definitions in the appropriate alphabetical sequence:
"144A GLOBAL NOTES" has the meaning provided in
Section 2.1.
"ADDITIONAL NOTES" means any additional Notes which may be issued from time to time pursuant to a "re-opening" of the series of Notes as contemplated by Section 2(a) of the Third Supplemental Indenture.
"AGENT MEMBERS" means members of, or participants in, the Depositary.
"CLOSING DATE" means October 22, 2001.
"DTC LEGEND" means a legend substantially in the form of the legends appearing in the fourth and fifth paragraphs of Exhibit A hereto.
"EXCHANGE NOTES" means Notes which are issued pursuant to the Indenture in exchange for other Notes 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 Notes, means November 1, 2008.
"GLOBAL NOTES" has the meaning provided in Section 2.1. For purposes of clarity, it is hereby confirmed that the Global Notes 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).
"NOTES" means the series of Securities issued pursuant to this Indenture designated as the 5.95% Notes due 2008, including Notes initially issued on the Closing Date, any Exchange Notes issued in exchange for any other Notes, and any other Notes
issued after the Closing Date under this Indenture. For purposes of this Indenture, all Notes, including, without limitation, Exchange Notes and Additional Notes, shall constitute a single series of Securities under this Indenture.
"OFFSHORE TRANSACTION" has the meaning set forth in Regulation S.
"PHYSICAL NOTES" has the meaning provided in Section 2.1.
"PRIVATE PLACEMENT LEGEND" means a legend substantially in the form of the legends appearing in the first three paragraphs of Exhibit A hereto.
"PURCHASE AGREEMENT" means the Purchase Agreement dated October 16, 2001 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 October 22, 2001 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 Notes in a transaction exempt from the registration requirements of the Securities Act, the registration rights agreement, if any, entered into by the Issuer and the other parties thereto in connection with such issuance, or both, as the context shall require.
"REGULATION S" means Regulation S under the Securities Act or any successor thereto.
"REGULATION S GLOBAL NOTE" has the meaning provided in
Section 2.1.
"REGULATION S PHYSICAL NOTES" 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.
"THIRD SUPPLEMENTAL INDENTURE" means the Third Supplemental Indenture dated as of October 22, 2001 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 the Notes established thereby.
"U.S. PHYSICAL NOTES" has the meaning provided in
Section 2.1."
SECTION 2. Creation of the Notes. Pursuant to Section 2.3 of the Indenture, there is hereby created a new series of Securities designated as the "5.95% Notes due 2008" and which are sometimes herein referred to as the "Notes." The Notes shall have the following terms:
(a) The aggregate principal amount of Notes that may be authenticated and delivered under the Indenture is initially limited to $750,000,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes 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 Notes issued in exchange for Notes which have been registered under the Securities Act in an exchange offer pursuant to the Registration Rights Agreement. However, such series may be re-opened by the Issuer for the issuance of Additional Notes, so long as any such Additional Notes have the same form and terms (other than the date of issuance and the date from which interest thereon shall begin to accrue and except that the form of such Additional Notes may refer to a different Registration Rights Agreement than the Notes issued on the Closing Date and such Additional Notes, 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 hereto which refers to the Registration Rights Agreement), and carry the same right to receive accrued and unpaid interest, as the Notes theretofore issued; provided, however, that, notwithstanding the foregoing, the series may not be reopened if the Issuer has effected satisfaction and discharge or defeasance with respect to the Notes pursuant to Section 10.1(A) or 10.1(B) of the Indenture; and provided, further, that no Additional Notes may be issued at a price that would cause such Additional Notes to have "original issue discount" within the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended.
(b) The Notes are to be issuable only as Registered Securities without Coupons. The Notes may be issued as either Physical Notes or Global Notes, or both, the initial Depositary for the Global Notes shall be The Depository Trust Company and the depositary arrangements shall be those employed by whomever shall be the Depositary with respect to the Global Notes from time to time.
(c) The Notes 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), at a price equal to 99.875% of the principal amount thereof. The initial offering price of the Notes issued on the Closing Date shall be 99.500% of the principal amount thereof plus accrued interest, if any, from the Closing Date, and Initial Purchasers' discounts and commissions shall be 0.625% of the principal amount of the Notes.
(d) The Final Maturity Date of the Notes on which the principal thereof is due and payable shall be November 1, 2008.
(e) The principal of the Notes shall bear interest at the rate of 5.95% per annum from October 22, 2001 or from the most recent date to which interest has been
paid or duly provided for, payable semiannually in arrears on May 1 and November 1 of each year, commencing May 1, 2002, to the Persons in whose names the Notes are registered at the close of business on the April 15 or October 15, as the case may be, immediately preceding such interest payment dates. Interest on the Notes 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 Notes.
(f) The principal of and premium, if any, and interest on the Notes shall be payable, the Notes may be surrendered for registration of transfer and exchange, and notices and demands to or upon the Issuer in respect of the Notes 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 Notes 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 Notes, 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 Notes 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 Notes.
(g) The Notes 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 form of Notes attached hereto as Exhibit A, plus accrued and unpaid interest on the principal amount being redeemed to the applicable redemption date; provided that payments of interest on the Notes that are due and payable on a date on or prior to a date fixed for redemption of the Notes will be payable to the Holders of the 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 redemption of Notes shall be made on the other terms and conditions set forth in the Indenture.
(h) The Notes shall not be repayable or redeemable at the option of the Holders prior to the Final Maturity Date of the Notes (provided that nothing in this Third Supplemental Indenture shall limit the right of the Trustee or the Holders of the Notes to declare the principal of, and accrued and unpaid interest on, the Notes 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.
(i) The principal of, premium, if any, and interest on the Notes 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.
(j) To the extent that any provision of the Indenture or the Notes 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 Notes, then, to the extent permitted by law, interest on such overdue principal, premium, if any, and interest shall accrue at the rate of interest borne by the Notes (and, if additional interest shall at any time accrue on the Notes pursuant to a Registration Rights Agreement, then the per annum interest rate on the Notes 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 the sum of 5.95% per annum plus the per annum rate at which such additional interest shall accrue 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 Notes, such payment or distribution shall only be required to the extent it is permitted by applicable law.
(k) As used in the Indenture with respect to the Notes and in the certificates evidencing the Notes, all references to "premium" on the Notes shall mean any amounts (other than accrued interest) payable upon the redemption of any Note in excess of 100% of the principal amount of such Note.
(l) The following additional terms shall be applicable with respect to the Notes:
(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 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".
(m) The Notes shall have such additional terms and provisions as are set forth in the form of Note attached hereto as Exhibit A, which terms and provisions are hereby incorporated by reference in and made a part of this Third 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 Notes, by replacing it in its entirety with the following:
"Section 2.1. Form of Notes. (a) The Notes shall be
substantially in the form annexed as Exhibit A to the Third
Supplemental Indenture, which Exhibit A is hereby incorporated in
and expressly made a part of this Indenture, and the Notes 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 Notes as evidenced by their
execution of the Notes; provided that the form of any Additional
Notes may have such variations as are permitted by paragraph (a) of
Section 2 of the Third Supplemental Indenture; and provided.
further, that Physical Notes may deviate (in form but not in
substance) from the form attached as Exhibit A to the Third
Supplemental Indenture in such respects as the Issuer may deem
necessary or appropriate to protect against fraud or forgery,
including without limitation, by changing the form of the Physical
Notes so that they have a "face" and a "reverse" and by moving the
signatures and Trustee's certificate of authentication so that they
appear on the same page as the principal amount of the Physical
Notes. Each Note shall be dated the date of its authentication.
"The terms and provisions contained in the form of the Note annexed as Exhibit A to the Third 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 Third Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
"Notes 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 (the "144A GLOBAL NOTES"), 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 Notes 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.
"Notes 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 (the "REGULATION S GLOBAL NOTES") 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 Notes 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.
"Notes initially offered and sold to Institutional Accredited Investors that are not QIBs shall be issued in the form of certificated Notes in registered form (the "U.S. PHYSICAL NOTES"). Notes issued pursuant to the second sentence of Section 2.12(b) of this Indenture in exchange for interests in the Regulation S Global Notes shall be issued in the form of certificated Notes in registered form (the "REGULATION S PHYSICAL NOTES"). The Regulation S Physical Notes and the U.S. Physical Notes are sometimes collectively referred to herein as the "PHYSICAL NOTES." The 144A Global Notes and the Regulation S Global Notes are sometimes collectively referred to herein as the "GLOBAL NOTES".
"The definitive notes 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 Notes may be listed, or as determined by the officers of the Issuer executing such Notes, as evidenced by their execution of such Notes.
"(b) Restrictive Legends. (i) Unless and until a Note
is exchanged for an Exchange Note 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 Note and each U.S. Physical Note shall bear the
Private Placement Legend and (B) each Regulation S Physical Note and
each Regulation S Global Note 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 hereto (and after such 41st day and, upon
receipt of such certificate, the Private Placement Legend may be
removed from the Regulation S Global Note). Notwithstanding the
foregoing, to the extent that a certificate substantially in the
form of Exhibit B hereto shall be delivered with respect to a
portion (but not all) of the principal amount of a Regulation S
Global Note bearing the Private Placement Legend, then the Issuer
shall execute and the Trustee shall authenticate and deliver a
Regulation S Global Note not bearing the Private Placement Legend in
exchange for only such portion of the principal amount of the Regulation S Global Note 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 Note bearing the Private Placement Legend and a like increase in the principal amount of the Regulation S Global Note not bearing the Private Placement Legend.
"(ii) Each Global Note shall bear the DTC Legend."
(b) Section 2.8 of the Prior Indenture is hereby supplemented by adding the following paragraph at the end of such Section:
"Notwithstanding the foregoing provisions of this Section 2.8, no exchanges of Notes for Exchange Notes shall occur until a registration statement shall have been declared effective by the Commission and unless such exchanges are effected pursuant to such effective registration statement. Any Notes that are exchanged for Exchange Notes shall be cancelled by the Trustee."
(c) Article Two of the Prior Indenture is hereby
supplemented and amended, solely insofar as relates to the Notes, 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 Notes.
(a) The 144A Global Notes and Regulation S Global Notes 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 Notes may be exchanged for Physical Notes, and that Physical
Notes may be exchanged for interests in Global Notes, as provided in
this Section 2.12 and in Section 2.13 of this Indenture.
"(b) Global Notes and interests in Global Notes 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 Notes and Regulation S Physical Notes shall
be transferred to all beneficial owners in exchange for their
beneficial interests in the 144A Global Notes and the Regulation S
Global Notes, respectively, under the circumstances set forth in
(c)(i), (ii) or (iii) of Section 2.2A of this Indenture.
"(c) Any beneficial interest in one of the Global Notes that is transferred to a Person who takes delivery in the form of an interest in the other Global Note will, upon transfer, cease to be an interest in the first such Global Note and become an interest in the other Global Note and,
accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Note 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 Note or Regulation S Global Note to beneficial owners (other than transfers of the entire 144A Global Note or the entire Regulation S Global Note 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 Notes or Regulation S Global Notes, as the case may be, in an amount equal to the principal amount of the beneficial interest in such Global Notes to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more U.S. Physical Notes or Regulation S Physical Notes, as the case may be, of like tenor and principal amount.
"(e) In connection with the transfer of the entire 144A Global Note or Regulation S Global Note to beneficial owners pursuant to the second sentence of paragraph (b) of this Section 2.12, the 144A Global Note or Regulation S Global Note, 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 Note or Regulation S Global Note, as the case may be, an equal aggregate principal amount of U.S. Physical Notes or Regulation S Physical Notes, respectively, of authorized denominations.
"(f) Any U.S. Physical Note delivered in exchange for an
interest in the 144A Global Note 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 the U.S. Physical Note required by
Section 2.1(b).
"(g) Any Regulation S Physical Note delivered in exchange for an interest in the Regulation S Global Note 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 the Regulation S Physical Note required by Section 2.1(b).
"(h) The Holder of a Global Note 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 Notes.
"(i) Unless the Issuer shall otherwise determine in the exercise of its sole discretion, (x) Physical Notes may not be issued upon transfer
of or in exchange for interests in Global Notes except (1) in
connection with transfers to Institutional Accredited Investors or
(2) upon the exchange of the entire Global Notes for Physical Notes
pursuant to the second sentence of paragraph (b) of this Section
2.12, and (y) upon the transfer of U.S. Physical Notes to a QIB
pursuant to Rule 144A or to a Non-U.S. Person pursuant to Regulation
S, or upon the transfer of a Regulation S Physical Note to a QIB
pursuant to Rule 144A, the transferee will, unless the entire Global
Notes have been exchanged for Physical Notes pursuant to the second
sentence of paragraph (b) of this Section 2.12, take such Notes in
the form of an interest in the 144A Global Notes or the Regulation S
Global Note, 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 Note to reflect any increases or decreases in the principal amount thereof resulting from transfers or exchanges of Notes or of interests in Global Notes made in accordance with this Indenture.
"Section 2.13. Special Transfer Provisions. Unless and until a Note 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 a Note to any Institutional Accredited Investor which is not a QIB (excluding Non-U.S. Persons):
"(i) The Trustee shall register the transfer of any Note, whether or not such Note 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 hereto 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 Note to be transferred consists of either a Regulation S Physical Note prior to the removal of the Private Placement Legend, an interest in a Regulation S Global Note prior to the removal of the Private Placement Legend, a U.S. Physical Note or a 144 Global Note, the proposed transferor shall have checked the box provided for on the form of such Note, 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; 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 Note, 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 Note in an amount equal to the principal amount of the beneficial interest in such Global Note to be transferred, and the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more U.S. Physical Notes 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 Note, an interest in a 144A Global Note, a Regulation S Physical Note prior to the removal of the Private Placement Legend or an interest in a Regulation S Global Note prior to the removal of the Private Placement Legend to a QIB (excluding Non-U.S. Persons):
"(i) If the Note to be transferred consists of (x) either (A) a Regulation S Physical Note prior to the removal of the Private Placement Legend or an interest in a Regulation S Global Note prior to the removal of the Private Placement Legend or (B) a U.S. Physical Note, 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 Note 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 Note stating, or has otherwise advised the Issuer and the Trustee in writing, that it is a QIB and is aware that such Note is being transferred in reliance on Rule 144A and that it is acquiring such Note 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 the Note is being transferred in reliance on Rule 144A) or (y) an interest in the 144A Global Notes, 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 Note to be transferred consists of Physical Notes, 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 Notes in an amount equal to the
principal amount of the Physical Notes to be transferred, and the Trustee shall cancel the Physical Notes so transferred.
"(c) Transfers of Interests in the Regulation S Global Notes or Regulation S Physical Notes. The following provisions shall apply with respect to any transfer of interests in the Regulation S Global Notes or Regulation S Physical Notes:
"(i) prior to the removal of the Private Placement
Legend from a Regulation S Global Note or Regulation S Physical Note
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 Note 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 a Note to a Non-U.S. Person:
"(i) The Trustee shall register any proposed transfer to any Non-U.S. Person if the Note to be transferred is a U.S. Physical Note or an interest in the 144A Global Note only upon receipt of a certificate substantially in the form of Exhibit D from the proposed transferor.
"(ii) (a) If the proposed transferor is an Agent Member holding a beneficial interest in a 144A Global Note, 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 Note in an amount equal to the principal amount of the beneficial interest in the 144A Global Note 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 Note in an amount equal to the principal amount of the U.S. Physical Notes or the 144A Global Notes, as the case may be, to be transferred, and the Trustee shall cancel the Physical Note, if any, so transferred or decrease the amount of the 144A Global Note, as the case may be.
"(e) Private Placement Legend. (i) Upon the registration of transfer, exchange or replacement of Notes not bearing the Private Placement Legend, the Trustee shall deliver Notes that do not bear the
Private Placement Legend. Upon the registration of transfer,
exchange or replacement of Notes bearing the Private Placement
Legend, the Trustee shall deliver only Notes 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 Notes for Notes 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 Notes 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 Notes 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 Notes, all requirements pertaining to the Private Placement Legend on such Notes shall cease to apply and the requirements that any such Notes be issued in global form shall continue to apply.
"(f) General. By its acceptance of any Note bearing the Private Placement Legend, each Holder of such a Note acknowledges the restrictions on transfer of such Note set forth in this Indenture and in the Private Placement Legend and agrees that it will transfer such Note only as provided in this Indenture. The Trustee shall not register a transfer of any Note unless such transfer complies with the restrictions on transfer of such Note set forth in this Indenture. In connection with any transfer of Notes 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 Notes 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 Notes or interests in Notes 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 Note or an interest therein, the procedures of the Depositary. In case of any request for the removal of the Private Placement Legend from a Note, 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 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 Note (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 Note, or otherwise advise the Issuer and Trustee in writing, as to the manner of such transfer and submit such Note to the Trustee."
SECTION 4. Governing Law; Third Supplemental Indenture. This Third 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 Third 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 Third Supplemental Indenture, the Indenture is in all respects ratified and confirmed.
SECTION 5. Acceptance by Trustee. The Trustee hereby accepts this Third Supplemental Indenture and agrees to perform the same upon the terms and conditions set forth in the Indenture.
SECTION 6. Counterparts. This Third 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 7. Headings. The headings of this Third Supplemental Indenture are for reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 8. 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 Third Supplemental Indenture.
SECTION 9. Separability. In case any one or more of the provisions contained in this Third Supplemental Indenture or in the Notes 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 Third Supplemental Indenture or of the Notes, but this Third Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed by their respective authorized officers as of the date first written above.
[Seal]
Attest: WEYERHAEUSER COMPANY,
/s/ Claire S. Grace by /s/ Jeffrey W. Nitta
------------------- ----------------------------
Name: Claire S. Grace Name: Jeffrey W. Nitta
Title: Corporate Secretary and Title: Vice President and Treasurer
Assistant General Counsel
|
Attest: THE CHASE MANHATTAN BANK, as trustee,
/s/ Michael Kearney by /s/ Natalia Rodriguez ----------------------- -------------------------- Name: Michael Kearney Name: Natalia Rodriguez Title: Trust Officer Title: Assistant Vice President |
Exhibit A
[FORM OF NOTE]
[The following legend (the "Private Placement Legend") to be included on all
Notes (other than Exchange Notes) 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 THE CHASE MANHATTAN 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 THE CHASE MANHATTAN BANK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE).
[The following legend (the "Private Placement Legend") to be included on all Notes (other than Exchange Notes) 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 THE CHASE MANHATTAN 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 Notes (other than Exchange Notes) 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.
[Include the following legend (the "DTC Legend") only in Global Notes--] 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 Notes--] 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: $________
CUSIP No. [Rule 144A: 962166 AY 0]
[Reg S: U96224 AA 5]
[A/I: 962166 AZ 7]
[Exchange Note: 962166 BA 1]
|
WEYERHAEUSER COMPANY
5.95% Note due 2008
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term includes any successor thereto under the Indenture referred to below), for value received, hereby promises to pay to [FOR INCLUSION IN GLOBAL NOTES ONLY- Cede & Co.], or registered assigns, at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York, the principal sum of _________ Dollars ($ ________) [FOR INCLUSION IN GLOBAL NOTES ONLY -- or such other principal amount as is set forth on Schedule A hereto] on November 1, 2008, 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 May 1 and November 1 of each year, commencing May 1, 2002, and at final maturity on said principal sum at said office or agency, in like coin or currency, at the rate of 5.95% per annum from the May 1 or November 1, 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 October 22, 2001 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 foregoing, if the date hereof is after April 15 or October 15, as the case may be, and before the following May 1 or November 1, this Note shall bear interest from such May 1 or November 1; provided, that if the Issuer shall default in the payment of interest due on such May 1 or November 1, then this Note shall bear interest from the next preceding May 1 or November 1 to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on these Notes, from October 22, 2001. The interest so payable on any May 1 or November 1 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 April 15 or October 15, as the case may be, next preceding such May 1 or November 1. 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") and a Third Supplemental Indenture thereto 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, the Third Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to The Chase Manhattan Bank (formerly known as 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 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 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 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.
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 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 NOTES--] 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 October 22, 2001 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 Notes issued under the Indenture, which Exchange Notes 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.
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]
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.
THE CHASE MANHATTAN BANK,
as Trustee
* The signatures and the Trustee's certificate of authentication may, in the case of Physical Notes, be moved to appear on the same page as the principal amount of such Notes.
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.
[FOR INCLUSION IN NOTES 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 5.95% Note due 2008 (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 Notes (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.
Date: _____________________
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 NOTES]
SCHEDULE A
The initial principal amount of this Global Note is _______ Dollars ($_______). The following increases or decreases in the principal amount of this Global Note have been made:
================ ======================== ======================== =========================== =========================
Amount of increase in Amount of decrease in Principal amount of this Signature of authorized
principal amount of this principal amount of this Global Note following such signatory of Trustee
Date made Global Note Global Note decrease or increase
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EXHIBIT B
Form of Certificate
[Date]
The Chase Manhattan 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")
5.95% Notes due 2008 (the "NOTES")
Dear Sirs and Mesdames:
This letter relates to $___,___,000 principal amount of Notes represented by a Regulation S [Global] [Physical] Note (as defined in the Indenture referred to below) (the "LEGENDED NOTE") which bears a legend outlining restrictions upon transfer of such Legended Note. 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") and a Third Supplemental Indenture thereto 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 "INDENTURE") relating to the Notes, we hereby certify that we are (or we will hold such Notes on behalf of) a person outside the United States to whom the Notes 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] Notes 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]
By:___________________________ Authorized Signature
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[Date]
The Chase Manhattan 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 5.95% Notes due 2008 (the "Notes") 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 Notes 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 Notes, we will acquire Notes 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 Notes;
(v) we not acquiring the Notes 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 Notes 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 Notes.
We understand that the Notes 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 Notes 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 Notes, that if in the future we decide to offer, resell, pledge or
otherwise transfer such Notes, such Notes 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 Notes (the form of which letter
can be obtained from the trustee for the Notes) 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 Notes 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.
Date:__________________________ ___________________________________
(Name of Purchaser)
By: ________________________________
Name:
Title:
Address:
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EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
[Date]
The Chase Manhattan Bank
450 W. 33rd Street, 15th Floor
New York, NY 10001
Attention: Institutional Trust Services
Re: Weyerhaeuser Company
(the "ISSUER")
5.95% Notes due 2008 (the "NOTES")
Dear Sirs and Mesdames:
In connection with our proposed sale of $______,000 aggregate principal amount of the Notes, 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 Notes 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 Notes, the interest in the Notes 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]
By:__________________________________ Authorized Signature
EXHIBIT 4(e)
[INCLUDE THE FOLLOWING PARAGRAPH IN THE CASE OF BOOK-ENTRY 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 PARAGRAPH IN THE CASE OF BOOK-ENTRY 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. _ Principal Amount: $_,000,000 CUSIP No. _
WEYERHAEUSER COMPANY
_% Note due _
WEYERHAEUSER COMPANY, a Washington corporation (the "Issuer", which term
includes in any successor thereto under the Indenture referred to below), for
value received, hereby promises to pay to _ or registered assigns, at the office
or agency of the Issuer maintained for such purpose in the Borough of Manhattan,
The City of New York, the principal sum of _ Dollars ($_,000,000) on _, 20_, 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 [INTEREST PAYMENT DATE] and [INTEREST
PAYMENT DATE] of each year, commencing [INTEREST PAYMENT DATE], 200_, and at
final maturity on said principal sum at said office or agency, in like coin or
currency, at the rate of _% per annum from the [INTEREST PAYMENT DATE] or
[INTEREST PAYMENT DATE], 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 [ORIGINAL ISSUE DATE], 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 foregoing, if the date hereof is after [REGULAR RECORD DATE]
or [REGULAR RECORD DATE], as the case may be, and before the following [INTEREST
PAYMENT DATE] or [INTEREST PAYMENT DATE], this Note shall bear interest from
such [INTEREST PAYMENT DATE] or [INTEREST PAYMENT DATE]; provided, that if the
Issuer shall default in the payment of interest due on such [INTEREST PAYMENT
DATE] or [INTEREST PAYMENT DATE], then this Note shall bear interest from the
next preceding [INTEREST PAYMENT DATE] or [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 [ORIGINAL ISSUE DATE]. The interest so
payable on any [INTEREST PAYMENT DATE] or [INTEREST PAYMENT DATE] will, subject
to certain exceptions provided in the Indenture referred to below, be paid to
the person in whose name this Note is registered at the close of business on the
[REGULAR RECORD DATE] or [REGULAR RECORD DATE], as the case may be, next
preceding such [INTEREST PAYMENT DATE] or [INTEREST PAYMENT DATE]. 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") and a Second Supplemental Indenture thereto dated as of February 1, 1993 (the "Second Supplemental Indenture"; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the "Indenture"), each duly executed and delivered by the Issuer to The Chase Manhattan Bank (formerly known as 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").
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] 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 _ 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] 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 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 which 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "Final Maturity Date" means _, 20_.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "Independent Investment Banker" means, with respect to any Redemption Date for the Notes, _ and its successors or _ 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "Reference Treasury Dealer" means, with respect to any Redemption Date for the Notes, _ and _ 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] "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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE SUBJECT TO A MAKE-HOLD
REDEMPTION--] 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 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.
[INCLUDE THE FOLLOWING IF THE NOTES ARE NOT SUBJECT TO A SINKING FUND--]
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.
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 Security, 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]
IN WITNESS WHEREOF, Weyerhaeuser Company has caused this instrument to be signed and its corporate seal attested by the manual or facsimile signatures of its duly authorized officers and has caused its corporate seal (or a facsimile thereof) to be affixed hereunto or imprinted hereon.
Dated:
WEYERHAEUSER COMPANY
[SEAL]
By: ________________________________ Name:
Title:
Attest: ________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By _________________________________
Authorized Officer
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
and not as tenants in common Minors 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
_______________________________________________________________________ Attorney to transfer said security on the books of the Issuer with full power of substitution in the premises.
Dated: ___________________________________ Signed: _________________________
Notice: The signature to this assignment must correspond with the name as it appears upon the face of the within security in every particular, without alteration or enlargement or any change whatever.
EXHIBIT 5
October 26, 2001
Weyerhaeuser Company
Federal Way WA 98477
Dear Sirs and Mesdames:
I am Senior Legal Counsel of Weyerhaeuser Company, a Washington corporation (the "Company") and in such capacity, I have examined the Registration Statement on Form S-3 (the "Registration Statement") to be filed by the Company with the Securities and Exchange Commission in connection with the registration under the Securities Act of 1933, as amended (the "1933 Act"), of $1,000,000,000 aggregate principal amount of debt securities (the "Debt Securities") for an offering to be made on a continuous or delayed basis pursuant to the provisions of Rule 415 promulgated under the 1933 Act. I have examined the Indenture dated as of April 1, 1986, as supplemented by the First Supplemental Indenture, dated as of February 15, 1991, the Second Supplemental Indenture dated as of February 1, 1993 and the Third Supplemental Indenture dated as of October 22, 2001 (the "Indenture") between the Company and The Chase Manhattan Bank (formerly known as Chemical Bank), as Trustee, under which the Debt Securities are to be issued. I am familiar with the proceedings heretofore taken and with the additional proceedings proposed to be taken by the Company in connection with the authorization, registration, issuance and sale of the Debt Securities.
Based upon the foregoing, I am of the opinion that upon compliance with the terms and conditions of the Indenture with respect to the creation, authentication and delivery of the Debt Securities, the due execution by the Company and authentication and delivery by the Trustee under the Indenture of the Debt Securities, and the sale of the Debt Securities by the Company as contemplated in the Registration Statement (after effectiveness) and in accordance with corporate authorizations, the Debt Securities will constitute in the hands of holders thereof valid and binding obligations of the Company
I consent to the use of this opinion as an exhibit to the Registration Statement and to the reference to me under the heading "Legal Opinions" in the Prospectus.
Very truly yours,
/s/ Lorrie D. Scott Lorrie D. Scott Senior Legal Counsel |
EXHIBIT 12(a)
WEYERHAEUSER COMPANY AND SUBSIDIARIES
COMPUTATION OF RATIOS OF EARNINGS TO FIXED CHARGES
(Dollar Amounts in Thousands)
TWENTY-SIX
WEEKS ENDING
----------------------------
JULY 1, JUNE 25
2001 2000 2000 1999
----------- ----------- ----------- -----------
Available earnings:
Earnings before interest expense, amortization of
debt expense, income taxes and cumulative effect
of a change in an accounting principle ................ $ 704,576 $ 864,722 $ 1,677,577 $ 1,276,905
Add interest portion of rental expense ................... 22,708 21,130 42,063 27,515
----------- ----------- ----------- -----------
Available earnings before cumulative effect of a
change in an accounting principle ....................... $ 727,284 $ 885,852 $ 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 ............................... $ 173,880 $ 171,022 $ 352,341 $ 274,599
Weyerhaeuser Real Estate Company and
consolidated subsidiaries ............................ 32,661 30,799 67,733 58,434
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ........................ 4,541 8,411 15,823 16,002
Gryphon Investments of Nevada, Inc. .................... 0 0 0 0
----------- ----------- ----------- -----------
Subtotal ..................................... 211,082 210,232 435,897 349,035
Less intercompany interest ............................. 681 512 568 2,230
----------- ----------- ----------- -----------
Total interest expense incurred ........................ 210,401 209,720 435,329 346,805
----------- ----------- ----------- -----------
Amortization of debt expense ........................... 1,748 1,644 3,331 3,957
----------- ----------- ----------- -----------
Rental expense:
Weyerhaeuser Company and consolidated
subsidiaries ....................................... 63,691 58,857 117,307 74,918
Weyerhaeuser Real Estate Company and
consolidated subsidiaries .......................... 4,433 4,484 8,779 7,473
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ...................... 0 49 103 154
Gryphon Investments of Nevada, Inc. .................... 0 0 0 0
----------- ----------- ----------- -----------
68,124 63,390 126,189 82,545
----------- ----------- ----------- -----------
Interest portion of rental expense ................... 22,708 21,130 42,063 27,515
----------- ----------- ----------- -----------
Fixed Charges ...................................... $ 234,857 $ 232,494 $ 480,723 $ 378,277
=========== =========== =========== ===========
Ratio of earnings to fixed charges ....................... 3.10 3.81 3.58 3.45
=========== =========== =========== ===========
|
1998 1997 1996
----------- ----------- -----------
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 $ 1,089,493
Add interest portion of rental expense ................... 23,698 24,321 22,023
----------- ----------- -----------
Available earnings before cumulative effect of a
change in an accounting principle ....................... $ 780,413 $ 925,207 $ 1,111,516
=========== =========== ===========
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 $ 269,927
Weyerhaeuser Real Estate Company and
consolidated subsidiaries ............................ 60,546 69,165 65,402
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ........................ 21,311 40,447 66,516
Gryphon Investments of Nevada, Inc. .................... 0 0 0
----------- ----------- -----------
Subtotal ..................................... 341,871 377,256 401,845
Less intercompany interest ............................. 13,753 407 (1,707)
----------- ----------- -----------
Total interest expense incurred ........................ 328,118 376,849 403,552
----------- ----------- -----------
Amortization of debt expense ........................... 3,595 3,225 3,237
----------- ----------- -----------
Rental expense:
Weyerhaeuser Company and consolidated
subsidiaries ....................................... 65,508 66,008 50,477
Weyerhaeuser Real Estate Company and
consolidated subsidiaries .......................... 5,361 3,848 4,020
Weyerhaeuser Financial Services, Inc.
and consolidated subsidiaries ...................... 225 3,107 11,573
Gryphon Investments of Nevada, Inc. .................... 0 0 0
----------- ----------- -----------
71,094 72,963 66,070
----------- ----------- -----------
Interest portion of rental expense ................... 23,698 24,321 22,023
----------- ----------- -----------
Fixed Charges ...................................... $ 355,411 $ 404,395 $ 428,812
=========== =========== ===========
Ratio of earnings to fixed charges ....................... 2.20 2.29 2.59
=========== =========== ===========
|
EXHIBIT 12(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)
TWENTY-SIX
WEEKS ENDING
-----------------------------
JULY 1, JUNE 25
2001 2000 2000 1999
----------- ----------- ----------- -----------
Available earnings:
Earnings before interest expense, amortization of
debt expense, income taxes and cumulative effect
of a change in an accounting principle ................ $ 583,225 $ 867,591 $ 1,658,343 $ 1,232,822
Add interest portion of rental expense ................... 21,230 21,836 39,102 24,973
----------- ----------- ----------- -----------
604,455 889,427 1,697,445 1,257,795
----------- ----------- ----------- -----------
Deduct undistributed earnings of equity affiliates ....... (28,461) (19,866) (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 .............................. (130,861) (126,707) (259,449) (189,885)
Addback dividends paid to Weyerhaeuser .............. 30,000 0 0 100,000
----------- ----------- ----------- -----------
Undistributed earnings ........................ (100,861) (126,707) (259,449) (89,885)
----------- ----------- ----------- -----------
Available earnings before extraordinary item ............. $ 475,133 $ 742,854 $ 1,413,975 $ 1,147,454
=========== =========== =========== ===========
Fixed charges:
Interest expense incurred ................................ $ 173,880 $ 171,022 $ 352,341 $ 274,599
Amortization of debt expense ............................. 1,748 1,644 3,331 3,957
Interest portion of rental expense ....................... 21,230 19,619 39,102 24,973
----------- ----------- ----------- -----------
Fixed charges ....................................... $ 196,858 $ 192,285 $ 394,774 $ 303,529
=========== =========== =========== ===========
Ratio of earnings to fixed charges ....................... 2.41 3.86 3.58 3.78
=========== =========== =========== ===========
|
1998 1997 1996
----------- ----------- -----------
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 $ 972,405
Add interest portion of rental expense ................... 21,836 22,003 16,826
----------- ----------- -----------
740,862 817,640 989,231
----------- ----------- -----------
Deduct undistributed earnings of equity affiliates ....... (29,893) (2,729) 0
----------- ----------- -----------
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) (43,555)
Addback dividends paid to Weyerhaeuser .............. 190,000 150,000 0
----------- ----------- -----------
Undistributed earnings ........................ 65,578 38,720 (43,555)
----------- ----------- -----------
Available earnings before extraordinary item ............. $ 776,547 $ 853,631 $ 945,676
=========== =========== ===========
Fixed charges:
Interest expense incurred ................................ $ 260,014 $ 267,644 $ 269,927
Amortization of debt expense ............................. 3,595 3,225 3,237
Interest portion of rental expense ....................... 21,836 22,003 16,826
----------- ----------- -----------
Fixed charges ....................................... $ 285,445 $ 292,872 $ 289,990
=========== =========== ===========
Ratio of earnings to fixed charges ....................... 2.72 2.91 3.26
=========== =========== ===========
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EXHIBIT 23(b)
As independent public accountants, we hereby consent to the incorporation by reference in this registration statement on Form S-3 of our reports dated February 7, 2001 included (or incorporated by reference) in Weyerhaeuser Company's annual report on Form 10-K for the fiscal year ended December 31, 2000, and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Seattle, Washington
October 26, 2001
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------------------
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WEYERHAEUSER COMPANY
(Exact name of obligor as specified in its charter)
WASHINGTON 91-0470860
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
33663 WEYERHAEUSER WAY, SOUTH
FEDERAL WAY, WASHINGTON 98003
(Address of principal executive offices) (Zip Code)
----------------------------------------------------
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DEBT SECURITIES
(Title of the indenture securities)
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
New York State Banking Department, Suite 2310, 5 Empire State Plaza, Albany, New York 12223.
Board of Governors of the Federal Reserve System, 20th and C Street, NW, Washington, D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. 10045
Federal Deposit Insurance Corporation, 550 Seventeenth Street NW, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-76439, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 10th day of October, 2001.
THE CHASE MANHATTAN BANK
By /s/ N. Rodriguez
-----------------------------------------
N. Rodriguez
Assistant Vice President
|
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of Eligibility.
1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-76439, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 10th day of October, 2001.
THE CHASE MANHATTAN BANK
By /s/ N. Rodriguez
--------------------------------
N. Rodriguez
Assistant Vice President
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Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 2001, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS
ASSETS IN MILLIONS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin .................... $ 21,536
Interest-bearing balances ............................................. 31,428
Securities:
Held to maturity securities ................................................ 481
Available for sale securities .............................................. 60,903
Federal funds sold and securities purchased under agreements to resell ..... 42,824
Loans and lease financing receivables:
Loans and leases held for sale ........................................ 3,856
Loans and leases, net of unearned income .............................. $155,575
Less: Allowance for loan and lease losses ............................. 2,276
Loans and leases, net of unearned income and allowance................. 153,299
Trading Assets.............................................................. 66,636
Premises and fixed assets (including capitalized leases).................... 4,468
Other real estate owned..................................................... 45
Investments in unconsolidated subsidiaries and associated companies ........ 353
Customers' liability to this bank on acceptances outstanding ............... 346
Intangible assets
Goodwill .............................................................. 1,785
Other Intangible assets ............................................... 4,365
Other assets ............................................................... 19,923
--------
TOTAL ASSETS ............................................................... $412,248
========
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LIABILITIES
Deposits
In domestic offices ................................................... $ 137,865
Noninterest-bearing ................................................... $ 56,799
Interest-bearing ...................................................... 81,066
In foreign offices, Edge and Agreement subsidiaries and IBF's ......... 113,924
Noninterest-bearing ................................................... $ 6,537
Interest-bearing ...................................................... 107,387
Federal funds purchased and securities sold under
agreements to repurchase .............................................. 65,474
Trading liabilities ........................................................ 39,611
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases) ............................. 10,573
Bank's liability on acceptances executed and outstanding ................... 346
Subordinated notes and debentures .......................................... 6,355
Other liabilities .......................................................... 14,772
TOTAL LIABILITIES .......................................................... 388,920
Minority Interest in consolidated subsidiaries ............................. 89
EQUITY CAPITAL
Perpetual preferred stock and related surplus .............................. 0
Common stock ............................................................... 1,211
Surplus (exclude all surplus related to preferred stock)................... 12,715
Retained earnings ..................................................... 9,985
Accumulated other comprehensive income ................................ (672)
Other equity capital components ............................................ 0
TOTAL EQUITY CAPITAL ....................................................... 23,239
---------
TOTAL LIABILITIES, MINORITY INTEREST, AND EQUITY CAPITAL ................... $ 412,248
=========
|
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the in- structions issued by the appropriate Federal regulatory authority and is true and correct.
WILLIAM B. HARRISON JR. )
DOUGLAS A. WARNER III ) DIRECTORS
WILLIAM H. GRAY III )