WILLAMETTE CAPITAL I
DECLARATION OF TRUST
DECLARATION OF TRUST, dated as of July 30, 1997, between
Willamette Industries, Inc., an Oregon corporation, as Sponsor, Chase Manhattan
Bank Delaware, a Delaware banking corporation, as Delaware Trustee, and X. X.
Xxxxxx, and Xxxxxx X. Xxxxxxxx, as Regular Trustees (collectively with the
Delaware Trustee, the "Trustees"). The Sponsor and the Trustees hereby agree as
follows:
1. The trust created hereby (the "Trust") shall be known as
"Willamette Capital I," in which name the Trustees, or the Sponsor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Sponsor hereby assigns, transfers, conveys, and sets
over to the Trustees the sum of $10. The Trustees hereby acknowledge receipt of
such amount in trust from the Sponsor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Sponsor. It is the intention of the parties hereto that the
Trust created hereby constitutes a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section 3801 et seq. (the "Business Trust
Act"), and that this document constitutes the governing instrument of the Trust.
The Trustees are hereby authorized and directed to execute and file a
certificate of trust in the office of the Secretary of State of the State of
Delaware in the form attached hereto. The Trust is hereby established by the
Sponsor and the Trustees for the purposes of (i) issuing preferred securities
("Preferred Securities") representing undivided beneficial interests in the
assets of the Trust in exchange for cash and investing the proceeds thereof in
junior subordinated debt securities of the Sponsor, (ii) issuing and selling
common securities ("Common Securities" and, together with the Preferred
Securities, "Trust Securities") representing undivided beneficial interests in
the assets of the Trust to the Sponsor in exchange for cash and investing the
proceeds thereof in additional junior subordinated debt securities of the
Sponsor, and (iii) engaging in such other activities as are necessary,
convenient, or incidental thereof.
3. Concurrent with the first issuance of any Trust Securities
by the Trust, the Sponsor and the Trustees intend to enter into an amended and
restated Declaration of Trust, satisfactory to each such party and substantially
in the form to be included as an exhibit to the 1933 Act Registration Statement
referred to below for filing under the Securities Act of 1933, as amended (the
"Securities Act"), to provide for the contemplated operation of the Trust
created hereby and the issuance of the Preferred Securities and the Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as otherwise
required by applicable law or as may be necessary to obtain, prior to such
execution and delivery, any licenses, consents, or approvals required by
applicable law or otherwise.
4. The Sponsor and the Trustees hereby authorize the Sponsor,
as the sponsor of the Trust, (i) to prepare and file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) a Registration Statement on Form S-3 (the "1933 Act Registration
Statement"), including any pre-effective or post-effective amendments to such
Registration Statement, relating to the registration of the Preferred Securities
under the Securities Act and (b) a Registration Statement on Form 8-A (the "1934
Act Registration Statement") (including any pre-effective or post-effective
amendments thereto) relating to the registration of the Preferred Securities
under Section 12 of the Securities Exchange Act of 1934, as amended; (ii) to
prepare and file with the New York Stock Exchange and execute, on behalf of the
Trust, a listing
Exhibit 3.5 - Page 1 of 3
application and all other applications, statements, certificates, agreements,
and other instruments as shall be necessary or desirable if the Preferred
Securities are to be listed on the New York Stock Exchange; (iii) to prepare and
file and execute, in each case on behalf of the Trust, such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the Preferred Securities under the securities or "blue
sky" laws of such jurisdictions as the Sponsor, on behalf of the Trust, may deem
necessary or desirable; and (iv) to negotiate the terms of, and execute on
behalf of the Trust, an underwriting agreement among the Trust, the Sponsor, and
any underwriter, dealer, or agent relating to the Preferred Securities,
substantially in the form to be included as an exhibit to, or incorporated by
reference in, the 1933 Act Registration Statement. It is hereby acknowledged and
agreed that in connection with any execution, filing, or document referred to in
clauses (i)-(iii) above, (A) any Regular Trustee (or his attorneys-in-fact and
agents or the Sponsor as permitted herein) is authorized on behalf of the Trust
to file and execute such document on behalf of the Trust and (B) the Delaware
Trustee shall not be required to join in any such filing or execute on behalf of
the Trust any such document unless required by the rules and regulations of the
Commission or the New York Stock Exchange or state securities or blue sky laws,
and in such case only to the extent so required. In connection with all of the
foregoing, the Sponsor and each Regular Trustee, solely in its capacity as
Trustee of the Trust, hereby constitutes and appoints X. X. Xxxxxxx, X. X.
Xxxxxx, and Xxxxxx X. Xxxxxxxx, and each of them, his, her, or its, as the case
may be, true and lawful attorneys-in-fact, and agents, with full power of
substitution and resubstitution, for the Sponsor or such Trustee and in the
Sponsor's or such Trustee's name, place, and stead, in any and all capacities,
to sign and file (i) the 1933 Act Registration Statement and the 1934 Act
Registration Statement and any and all amendments (including post-effective
amendments) or supplements thereto, with all exhibits thereto, and other
documents in connection therewith, and (ii) a registration statement and any and
all amendments thereto filed pursuant to Rule 462(b) under the Securities Act
with the Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing and authority to do
and perform each and every act and thing requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as the Sponsor or
such Trustee might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their or his or her
substitute or substitutes, shall do or cause to be done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor which may increase or
decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3); and provided further, however, that to
the extent required by the Business Trust Act, one Trustee shall either be a
natural person who is a resident of the state of Delaware or, if not a natural
person, an entity that has its principal place of business in the state of
Delaware and meets any other requirements imposed by applicable law. Subject to
the foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon thirty days' prior notice to
the Sponsor; provided, however, that the Delaware Trustee may resign immediately
upon notice to the Sponsor if the Delaware Trustee is required to join in any
filing or execute on behalf of the Trust any document pursuant to the provisions
of paragraph 4 hereof and, upon giving such notice, the Delaware Trustee shall
not be required to join in any such filing or execute on behalf of the Trust any
such document; provided further, however, that no resignation of the Delaware
Trustee shall be effective until a successor Delaware Trustee has been appointed
and has accepted such appointment by instrument executed by such successor
Delaware Trustee and delivered to the Trust, the Sponsor, and the resigning
Delaware Trustee.
7. To the fullest extent permitted by applicable law, the
Sponsor agrees to indemnify (i) the Delaware Trustee, (ii) any affiliate of the
Delaware Trustee, and (iii) any officers, directors, shareholders,
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members, partners, employees, representatives, nominees, custodians, or agents
of the Delaware Trustee (each of the persons or entities in (i) through (iii)
being referred to as an "Indemnified Person") for, and to hold each Indemnified
Person harmless against, any loss, liability, or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses (including reasonable legal fees and expenses) of defending
itself against, or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligation
to indemnify as set forth in this paragraph 7 shall survive the termination of
this Declaration.
8. The Trust may terminate without issuing any Trust
Securities at the election of the Sponsor.
9. This Declaration shall be governed by the laws of the state
of Delaware, without regard to conflict of laws principles.
IN WITNESS WHEREOF, the parties hereto have caused this
Declaration of Trust to be duly executed as of the day and year first above
written.
WILLAMETTE INDUSTRIES, INC., as Sponsor
By /s/ X. X. Xxxxxxx
Name: X. X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer, Secretary, and
Treasurer
CHASE MANHATTAN BANK DELAWARE, as
Delaware Trustee
By /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
/s/ X. X. Xxxxxx
X. X. Xxxxxx, as Trustee
/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx, as Trustee
Exhibit 3.5 - Page 3 of 3
