Exhibit 99.3
_______ __ , 2002
Exchange Agent Agreement
JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xx
Ladies and Gentlemen:
Weyerhaeuser Company, a Washington corporation (the "Company"), proposes
to make an offer (the "Exchange Offer") to exchange an aggregate principal
amount of up to $750,000,000 of its 5.95% Notes due 2008 (the "Exchange Notes"),
which have been registered under the Securities Act of 1933, as amended, for a
like aggregate principal amount of the Company's outstanding 5.95% Notes due
2008 (the "Old Notes"). The terms and conditions of the Exchange Offer as
currently contemplated are set forth in a prospectus dated _______ __, 2002 (the
"Prospectus"). The Old Notes and the Exchange Notes are collectively referred to
herein as the "Notes".
The Company hereby appoints JPMorgan Chase Bank to act as exchange agent
(the "Exchange Agent") in connection with the Exchange Offer. References
hereinafter to "you" shall refer to JPMorgan Chase Bank.
The Exchange Offer is expected to be commenced by the Company on or
about December __, 2001. The Letter of Transmittal (the "Letter of
Transmittal") accompanying the Prospectus is to be used by the holders of the
Old Notes to accept the Exchange Offer, and contains instructions with respect
to the delivery of certificates for Old Notes tendered in physical form and
delivery of Old Notes tendered by book-entry transfer.
The Exchange Offer shall expire at 5:00 P.M., New York City time, on
________, 2002 or on such later date and time to which the Company may extend
the Exchange Offer (the "Expiration Date"). Subject to the terms and conditions
set forth in the Prospectus, the Company expressly reserves the right to extend
the Exchange Offer from time to time and may extend the Exchange Offer by giving
oral (promptly confirmed in writing) or written notice to you before 9:00 A.M.,
New York City time, on the business day following the previously scheduled
Expiration Date.
The Company expressly reserves the right, in its sole and absolute
discretion, subject to applicable law, at any time and from time to time:
(1) to delay the acceptance of the Old Notes for exchange,
(2) to terminate the exchange offer, whether or not any Old Notes
have previously been accepted for exchange, if the Company
determines, in its sole and absolute discretion, that any of the
events or conditions referred to under "The Exchange
Offer--Certain Conditions to the Exchange Offer" in the
Prospectus has occurred or exists or has not been satisfied,
(3) to extend the Expiration Date of the Exchange Offer from time to
time and retain all Old Notes tendered pursuant to the Exchange
Offer, subject, however, to the right of holders of Old Notes to
withdraw their tendered Old Notes as described under "The
Exchange Offer--Withdrawal Rights" in the Prospectus and
(4) to waive any condition or otherwise amend the terms of the
Exchange Offer in any respect.
Without limitation to the foregoing and notwithstanding any other
provisions of the Exchange Offer or any extension of the Exchange Offer, the
Company will not be required to accept for exchange, or to exchange, any Old
Notes for any Exchange Notes and may terminate the Exchange Offer, whether or
not any Old Notes have theretofore been accepted for exchange, or may waive any
conditions to or amend the Exchange Offer, if any of the events or conditions
specified in the Prospectus under the caption "The Exchange Offer -- Certain
Conditions to the Exchange Offer" has occurred or exists or has not been
satisfied. The Company will give oral (promptly confirmed in writing) or written
notice of any amendment, waiver, termination, nonacceptance or delay in
acceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are specifically
set forth in the section of the Prospectus entitled "The Exchange Offer" and as
specifically set forth herein and in the Letter of Transmittal and such duties
that are necessarily incidental thereto.
2. You will establish an account with respect to the Old Notes at The
Depository Trust Company (the "Book-Entry Transfer Facility") for purposes of
the Exchange Offer within two business days after the date of the Prospectus,
or, if you already have established an account with the Book-Entry Transfer
Facility suitable for the Exchange Offer, you will identify such pre-existing
account to be used in the Exchange Offer, and any financial institution that is
a participant in the Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Notes by causing the Book-Entry Transfer Facility to
transfer such Old Notes into your account in accordance with the Book-Entry
Transfer Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Notes (or confirmation of book-entry transfer into your
account at the Book-Entry Transfer Facility) and any other documents delivered,
sent by facsimile or mailed to you, and each "agent's message" and "book-entry
confirmation" (as such terms are defined in the Prospectus) and other item sent
to you electronically, by or for holders of the Old Notes to ascertain whether:
(i) the Letters of Transmittal and any such other documents are duly executed
and properly
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completed in accordance with the instructions set forth in the Prospectus and
the Letter of Transmittal and whether such agent's messages, book-entry
confirmations and other items sent to you electronically include all applicable
information and otherwise have been properly completed in accordance with the
instructions set forth in the Prospectus and the Letter of Transmittal and (ii)
the Old Notes have otherwise been properly tendered. In each case where the
Letter of Transmittal or any other document has been improperly completed or
executed or any of the certificates for Old Notes are not in proper form for
transfer or any agent's message, book-entry confirmation or other item sent to
you electronically does not contain all applicable information or is otherwise
defective or some other defect or irregularity in connection with the tender of
Exchange Notes or any related documents, agent's messages or book-entry
confirmations exists, you will endeavor to inform the presenters of the need (i)
for fulfillment of all requirements and (ii) to take any other action as may be
necessary or advisable to cause such defect or irregularity to be corrected. You
are also to examine each Letter of Transmittal, agent's message and book-entry
confirmation to determine if any holder tendering Exchange Notes has indicated
that it is a "participating broker-dealer" (as defined in the Prospectus) and
you agree to advise the Company promptly (by telephone confirmed in writing) if
any such Letter of Transmittal, agent's message and book-entry confirmation so
indicates or if you otherwise receive written notice that any person is a
"participating broker-dealer", and you will promptly deliver to each such
participating broker-dealer ten copies of the Prospectus and ten copies of any
amendment or supplement to the Prospectus that the Company provides to you.
4. With the approval of the Chairman of the Board, the President, any
Vice President, the Treasurer or the Corporate Secretary of the Company (such
approval, if given orally, to be promptly confirmed in writing) or any other
party designated by such an officer in writing, you are authorized to waive any
defects, irregularities or conditions of tender in connection with any tender of
Old Notes pursuant to the Exchange Offer.
5. Tenders of Old Notes may be made only as set forth in the Letter of
Transmittal and in the section of the Prospectus captioned "Procedures for
Tendering Old Notes," and Old Notes shall be considered properly tendered to you
only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old Notes that the
Chairman of the Board, President, any Vice President, the Treasurer or the
Corporate Secretary of the Company or any other party designated by such officer
in writing shall approve as having been properly tendered shall be considered to
be properly tendered (such approval, if given orally, shall be promptly
confirmed in writing).
6. You shall advise the Company with respect to any Old Notes delivered
subsequent to the Expiration Date and accept its instructions with respect to
disposition of such Old Notes.
7. You shall accept tenders:
(a) in cases where the Old Notes are registered in two or more
names only if signed by all named holders;
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(b) in cases where the signing person (as indicated on the Letter
of Transmittal) is acting in a fiduciary or a representative capacity
only when proper evidence of his or her authority so to act is
submitted (unless such requirement is waived by the Company, which
waiver, if given orally, shall be promptly confirmed in writing); and
(c) from persons other than the registered holder of Old Notes
provided that customary transfer requirements, including any applicable
transfer taxes, are fulfilled;
and, without limitation to the foregoing or any of the other provisions of the
Prospectus or the Letter of Transmittal, you shall accept tenders only where all
necessary signatures, guarantees of signatures and endorsements required by the
Letter of Transmittal and the Prospectus have been provided.
You shall accept partial tenders of Old Notes where so indicated and as
permitted in the Letter of Transmittal and deliver certificates for Old Notes to
the transfer agent for split-up and return any untendered Old Notes to the
holder (or such other person as may be designated in the Letter of Transmittal)
as promptly as practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Company will notify you (such notice, if given orally, to be promptly
confirmed in writing) of its acceptance, promptly after the Expiration Date, of
all Old Notes properly tendered and not withdrawn and you, on behalf of the
Company, will exchange such Old Notes for Exchange Notes, cause such Old Notes
to be cancelled, and dispose of the cancelled Old Notes and deliver a
certificate of disposition to the Company promptly thereafter. Delivery of
Exchange Notes will be made on behalf of the Company by you at the rate of
$1,000 principal amount of Exchange Notes for each $1,000 principal amount of
Old Notes properly tendered and not withdrawn promptly after notice (such
notice, if given orally, to be promptly confirmed in writing) of acceptance of
such Old Notes by the Company; provided, however, that in all cases, Old Notes
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by you of certificates for such Old Notes (or confirmation of book-entry
transfer into your account at the Book-Entry Transfer Facility), a properly
completed and duly executed Letter of Transmittal (or facsimile thereof or an
agent's message in lieu thereof) with any required signature guarantees and any
other required documents. You shall issue Exchange Notes only in denominations
of $1,000 or any integral multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and upon the conditions set forth in the Prospectus and the
Letter of Transmittal, Old Notes tendered pursuant to the Exchange Offer may be
withdrawn at any time prior to the Expiration Date. You are to examine each
notice of withdrawal (whether given physically or electronically) and any other
documents delivered in connection therewith to ascertain whether such notice of
withdrawal and any such other documents are duly executed and properly completed
in accordance with the instructions set forth in the Prospectus and the Letter
of Transmittal and such proposed withdrawal has otherwise been properly
effected. In each case where the notice of withdrawal or any other document has
been improperly completed or executed or some other defect or irregularity in
the proposed withdrawal or the documents therefor exists, you will endeavor to
inform the presenter of the need (i) for fulfillment of all requirements and
(ii) to take any other action as may be necessary or advisable to cause such
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defect or irregularity to be corrected. Promptly after a notice of withdrawal
and any other required documents, in proper form and otherwise complying with
the requirements of the Prospectus and the Letter of Transmittal, have been
received by you, you shall return the principal amount of Old Notes being
withdrawn to the person who deposited them.
10. Without limitation to any other provisions of this Agreement, the
Prospectus or the Letter of Transmittal, the Company shall not be required to
exchange any Old Notes tendered if any of the conditions set forth in the
Exchange Offer are not met. Notice of any decision by the Company not to
exchange any Old Notes tendered shall be given (such notice, if given orally,
shall be promptly confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept for
exchange all or part of the Old Notes tendered because of an invalid tender, the
occurrence of certain other events set forth in the Prospectus under the caption
"The Exchange Offer -- Certain Conditions to the Exchange Offer" or otherwise,
you shall as soon as practicable after the expiration or termination of the
Exchange Offer return those certificates for unaccepted Old Notes (or effect
appropriate book-entry transfer), together with any related required documents
and the Letters of Transmittal relating thereto that are in your possession, to
the persons who deposited them.
12. All certificates for reissued Old Notes, unaccepted Old Notes or for
Exchange Notes shall be forwarded by (a) first-class mail, postage prepaid under
a blanket surety bond protecting you and the Company from loss or liability
arising out of the nonreceipt or nondelivery of such certificates or (b) by
registered mail insured separately for the replacement value of each of such
certificates.
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness
of any of the certificates for the Old Notes represented thereby
deposited with you pursuant to the Exchange Offer, and will not be
required to and will make no representation as to the validity, value or
genuineness of the Exchange Offer ;
(b) shall not be liable to the Company for any action taken or
omitted by you, or any action suffered by you to be taken or omitted,
without negligence, willful misconduct or bad faith on your part, by
reason of or as a result of the administration of your duties hereunder
in accordance with the terms and conditions of this Agreement or by
reason of your compliance with the instructions set forth herein or with
any written or oral instructions delivered to you pursuant hereto, and
may rely on and shall be protected in acting in good faith in reliance
upon any certificate, instrument, opinion, notice, letter, facsimile or
other document or security delivered to you and reasonably believed by
you to be genuine and to have been signed by the proper party or
parties;
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(c) may act upon any tender, statement, request, comment,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which
you in good faith reasonably believe to be genuine or to have been
signed or represented by a proper person or persons;
(d) may rely on and shall be protected in acting upon written or
oral instructions from the Chairman of the Board, the President, any
Vice President, the Treasurer or the Corporate Secretary or any other
party designated by any such officer in writing with respect to the
Exchange Offer;
(e) shall not advise any person tendering Old Notes pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the
market value or decline or appreciation in market value of any Notes ;
(f) may consult with your counsel and the written opinion of such
counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by you hereunder in
good faith and in accordance with such written opinion of such counsel;
and
(g) in no event will you be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits) even if you have been advised of the likelihood
of such loss or damage and regardless of the form of action.
15. You shall take such action as may from time to time be requested by
the Company or its counsel (and such other action as you may reasonably deem
necessary) to furnish copies of the Prospectus, the Letter of Transmittal and
the Notice of Guaranteed Delivery referred to in the Prospectus, or such other
forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such documents as you may
reasonably request. All other requests for information relating to the Exchange
Offer shall be directed to the Company at the address for notices set forth in
Section 28 of this Agreement.
16. You shall advise by facsimile transmission or telephone, and
promptly thereafter confirm in writing to Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxx,
Esq. of the Company, and such other person or persons as the Company may
request, daily on each business day, and more frequently if reasonably
requested, up to and including the Expiration Date, as to the number of Old
Notes that have been tendered pursuant to the Exchange Offer and the items
received by you pursuant to this Agreement, separately reporting and giving
cumulative totals as to items properly received and items improperly received;
provided, however, that if, on a particular business day, no additional Old
Notes have been tendered, no additional items have been received by you and such
totals have not changed since you last provided such information as required
above, you need not provide the information referred to above in this paragraph
16 on such day. In addition, you will also confirm, and cooperate in making
available to, the Company or any such other
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person or persons as the Company requests from time to time prior to the
Expiration Date of such other information as it or he or she reasonably
requests. Such cooperation shall include, without limitation, the granting by
you to the Company and such person as the Company may request of access to those
persons on your staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Company shall have
received information in sufficient detail to enable it to decide whether to
extend the Exchange Offer. You shall prepare a final list of all persons whose
tenders were accepted, the aggregate principal amount of Old Notes tendered and
the aggregate principal amount of Old Notes accepted and deliver said list to
the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and the time of receipt and shall, except as
provided in Section 11, be preserved by you for a period of time at least equal
to the period of time you preserve other records pertaining to the transfer of
securities (or, if earlier, until such time as such documents are delivered to
the Company upon termination of this Agreement, pursuant to paragraph 29).
18. You hereby expressly waive any lien, encumbrance or right of set-off
whatsoever that you may have with respect to funds deposited with you for the
payment of transfer taxes by reason of amounts, if any, borrowed by the Company,
or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
19. For services rendered as Exchange Agent hereunder, you shall be
entitled to compensation of $__ and you shall be entitled to reimbursement
of your reasonable out-of-pocket expenses (including reasonable attorneys' fees
and expenses of your counsel, which fees are expected under normal circumstances
to be not in excess of $5,000) incurred in connection with your services
hereunder.
20. You hereby acknowledge receipt of the Prospectus, the Letter of
Transmittal and the other documents associated with the Exchange Offer attached
hereto and further acknowledge that you have examined each of them to the extent
necessary to perform your duties hereunder. Any inconsistency between this
Agreement, on the one hand, and the Prospectus and the Letter of Transmittal (as
they may be amended from time to time), on the other hand, shall be resolved in
favor of the latter two documents, except with respect to the duties,
liabilities and indemnification of you as Exchange Agent which shall be
controlled by this Agreement.
21. The Company agrees to indemnify and hold harmless you, in your
capacity as Exchange Agent hereunder, and your officers, employees and agents,
against any liability, cost or expense, including reasonable attorneys' fees,
arising out of or in connection with any act, omission, delay or refusal made by
you in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document believed by you in
good faith to be valid and genuine and in accepting any tender or effecting any
transfer of Old Notes believed by you in good faith to be authorized, and in
delaying or refusing in good faith to accept any tenders or effect any transfer
of Old Notes or otherwise arising out of or in connection with your acting as
Exchange Agent hereunder; provided, however, that the Company shall not be
liable for indemnification or otherwise for any loss, liability, cost or expense
to the extent arising out of your negligence, wilful misconduct or bad faith. In
no case shall the Company be
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liable under this indemnity with respect to any claim against you unless the
Company shall be notified by you, by letter or by facsimile confirmed by letter,
of the written assertion of a claim against you or of any other action commenced
against you, promptly after you shall have received any such written assertion
or written notice of the commencement of any such action. The Company shall be
entitled to participate at its own expense in the defense of any such claim or
other action, and, if the Company so elects, the Company shall assume the
defense of any suit brought to enforce any such claim. In the event that the
Company shall assume the defense of any such suit, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained
by you so long as the Company shall retain counsel reasonably satisfactory to
you to defend such suit.
22. You shall arrange to comply with all requirements under the tax laws
of the United States, including those relating to missing Tax Identification
Numbers, and shall file any appropriate reports with the Internal Revenue
Service.
23. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Notes, your check in the amount of all transfer taxes so
payable, and the Company shall reimburse you for the amount of any and all
transfer taxes payable in respect of the exchange of Old Notes; provided,
however, that, subject to such reimbursement by the Company, you shall reimburse
the Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you. Prior to paying
any transfer taxes as contemplated by this Section 23, you shall notify the
Company by telephone (confirmed in writing) of the amount of such transfer taxes
and shall not pay or cause the payment of any such transfer taxes unless the
Company shall consent thereto, orally or in writing.
24. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and without regard to conflicts of law principles, and shall inure to the
benefit of, and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be effected or impaired thereby.
27. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, canceled or waived, in whole or in part, except by a written
instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
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28. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile)
and shall be given to such party, addressed to it, at its address or telecopy
number set forth below:
If to the Company: Weyerhaeuser Company
Mail Stop CH1 C32
X.X. Xxx 0000
Xxxxxxx Xxx, Xxxxxxxxxx, 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
With a copy to: Xxxxxx X. Xxxxx, Esq.
Weyerhaeuser Company
Mail Stop CH2-J28
X.X. Xxx 0000
Xxxxxxx Xxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
If to the Exchange Agent: JPMorgan Chase Bank
000 Xxxx 00xx Xxxxxx (00xx Xxxxx)
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000/8160
Attention: Xxxxx Xx
29. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 14(c), 18, 19, 21, 22 and 23 shall survive the termination
of this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any certificates for Notes, funds or property (including,
without limitation, Letters of Transmittal and any other documents relating to
the Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the date hereof.
[SIGNATURE PAGE FOLLOWS]
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
WEYERHAEUSER COMPANY
By:
--------------------------------------
Name:
Title:
Accepted as of the date first above written:
JPMORGAN CHASE BANK
By:
--------------------------------
Name:
Title:
