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
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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 Xxxxxx Xxxxxxx & Co. Incorporated and
X.X. Xxxxxx 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
Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx 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."
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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
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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.
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(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.
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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
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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
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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,
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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
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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
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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
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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
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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
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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."
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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.
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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/ Xxxxxx X. Xxxxx by /s/ Xxxxxxx X. Xxxxx
------------------- ----------------------------
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
Title: Corporate Secretary and Title: Vice President and Treasurer
Assistant General Counsel
Attest: THE CHASE MANHATTAN BANK, as trustee,
/s/ Xxxxxxx Xxxxxxx by /s/ Xxxxxxx Xxxxxxxxx
----------------------- --------------------------
Name: Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxxxx
Title: Trust Officer Title: Assistant Vice President
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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
A-1
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.
A-2
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.
A-3
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
A-4
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, Xxxxxx Xxxxxxx & Co. Incorporated and its
successors or X.X. Xxxxxx 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, Xxxxxx Xxxxxxx & Co. Incorporated and X.X. Xxxxxx Securities
Inc. and their respective successors (provided, however, that if any such firm
or any such successor, as the case may be, shall cease to be a primary U.S.
Government securities dealer in New York City (a "Primary Treasury Dealer"), the
Trustee, after consultation with the Issuer, shall substitute therefor another
A-5
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
A-6
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 Xxxxxx Xxxxxxx & Co.
Incorporated and X.X. Xxxxxx 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.
A-7
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]
A-8
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
* 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.
A-9
ABBREVIATIONS
The following abbreviations, when used in the
inscription on the face of this instrument, shall be construed as though they
were written out in full
according to applicable laws or regulations:
TEN COM--as tenants in common UNIF GIFT MIN ACT - - _______Custodian ________
TEN ENT--as tenants by the entireties (Cust) (Minor)
JT TEN--as joint tenants with right of survivorship Under Uniform Gifts to
Minors
and not as tenants in common Act ____________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------------
-------------------------------------------
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PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
-------------------------------------------------------------------------------
the within security and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
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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.
A-10
[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.
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.
A-11
___________________________
(Insert Name of Transferor)
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
A-12
[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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A-13
EXHIBIT B
Form of Certificate
[Date]
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Institutional Trust Services
Weyerhaeuser Company
X.X. Xxx 0000
Xxxxxxx Xxx, Xxxxxxxxxx 00000-0000
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.
B-1
Very truly yours,
[Name of Transferor]
By:___________________________
Authorized Signature
B-2
EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB INSTITUTIONAL ACCREDITED INVESTORS
[Date]
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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.
C-1
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.
C-2
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:
C-3
EXHIBIT D
Form of Certificate to Be Delivered in
Connection with Transfers Pursuant to Regulation S
[Date]
The Chase Manhattan Bank
000 X. 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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.
D-1
[ ] 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
D-2
