8-K
WEYERHAEUSER CO (WY)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 15, 2023
WEYERHAEUSER COMPANY
(Exact name of registrant as specified in charter)
| Washington | 1-4825 | 91-0470860 |
|---|---|---|
| (State or other jurisdiction of<br> <br>incorporation or organization) | (Commission<br> <br>File Number) | (IRS Employer<br> <br>Identification Number) |
220 Occidental Avenue South
Seattle, Washington 98104-7800
(Address of principal executive offices)
(zip code)
Registrant’s telephone number, including area code:
(206) 539-3000
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading<br> <br>Symbol(s) | Name of each exchange<br> <br>on which registered |
|---|---|---|
| Common Stock, par value $1.25 per share | WY | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934:
☐ Emerging growth company
☐ If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Section 1. Registrant’s Business and Operations
| Item 1.01 | Entry Into a Material Definitive Agreement. |
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On May 15, 2023, Weyerhaeuser Company (“Weyerhaeuser”) entered into an underwriting agreement (“Underwriting Agreement”) with Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and Scotia Capital (USA) Inc., as representatives of the several underwriters named therein, pursuant to which the underwriters agreed to purchase from Weyerhaeuser $750,000,000 aggregate principal amount of its 4.750% Notes due 2026 (the “Notes”). The Notes were issued pursuant to an Indenture dated as of April 1, 1986 (the “Base Indenture”), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991, a Second Supplemental Indenture thereto dated as of February 1, 1993, a Third Supplemental Indenture thereto dated as of October 22, 2001, a Fourth Supplemental Indenture thereto dated as of March 12, 2002 and a Fifth Supplemental Indenture thereto dated as of March 30, 2020, each between Weyerhaeuser and The Bank of New York Mellon Trust Company, N.A. (as successor to JPMorgan Chase Bank, formerly known as The Chase Manhattan Bank and Chemical Bank), a national banking association, as trustee, and the Officers’ Certificate of Weyerhaeuser dated as of May 17, 2023, establishing the terms of the Notes (the “Officers’ Certificate”, and together with the Base Indenture, as amended and supplemented, the “Indenture”). The sale of the Notes closed on May 17, 2023.
The Notes bear interest at the rate of 4.750% per year, accruing from May 17, 2023. Interest on the Notes will be payable on May 15 and November 15 of each year, beginning on November 15, 2023. The Notes will mature on May 15, 2026. Weyerhaeuser may at its option redeem some or all of the Notes at any time prior to maturity at a redemption price equal to the greater of (1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate, as specified in the Notes, plus 20 basis points, less (b) interest accrued to the date of redemption, and (2) 100% of the principal amount of the Notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date. Additionally, upon the occurrence of both (1) a change of control of Weyerhaeuser and (2) a below investment grade debt rating by each of Moody’s Investors Service, Inc. and S&P Global Ratings, a division of S&P Global Inc., within a specified period, Weyerhaeuser would be required to offer to redeem the Notes at 101% of the aggregate principal amount of the Notes outstanding, plus accrued but unpaid interest, if any, to but not including the repurchase date.
The Notes are unsecured and unsubordinated obligations of Weyerhaeuser and rank equally in right of payment with all of Weyerhaeuser’s other unsecured and unsubordinated indebtedness from time to time outstanding.
The public offering price for the Notes was 99.672% of the principal amount. Weyerhaeuser received net proceeds of approximately $743 million from the sale of the Notes and intends to use such net proceeds for general corporate purposes, including repaying or otherwise refinancing certain of its existing indebtedness.
The Notes were offered and sold pursuant to Weyerhaeuser’s automatic shelf registration statement on Form S-3 (Registration No. 333-256995) under the Securities Act of 1933, as amended. Weyerhaeuser has filed with the Securities and Exchange Commission a prospectus supplement, dated May 15, 2023, together with the accompanying prospectus, dated June 10, 2021, relating to the offering and sale of the Notes.
The foregoing description of certain terms of the Underwriting Agreement and the Notes does not purport to be complete and is qualified in its entirety by reference to the full text of the Underwriting Agreement, the Officers’ Certificate and the form of Notes, which are filed with this report as Exhibits 1.1, 4.2 and 4.3, respectively, and are incorporated herein by reference.
Section 2. Financial Information
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
|---|
The information disclosed in this Current Report under Item 1.01 is incorporated into this Item 2.03 by reference.
Section 9. Financial Statements and Exhibits
| Item 9.01 | Financial Statements and Exhibits. |
|---|
(d) Exhibits. The following items are filed as exhibits to this report.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.
| WEYERHAEUSER COMPANY | |
|---|---|
| By: | /s/ Kristy T. Harlan |
| Name: | Kristy T. Harlan |
| Title: | Senior Vice President, General Counsel and Corporate Secretary |
Date: May 17, 2023
EX-1.1
Exhibit 1.1
WEYERHAEUSER COMPANY
$750,000,000 4.750% Notes Due 2026
Underwriting Agreement
May 15, 2023
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
Scotia Capital (USA) Inc.
250 Vesey Street
New York, New York 10281
As Representatives of the several Underwriters
Ladies and Gentlemen:
Weyerhaeuser Company, a Washington corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule I hereto (the “Underwriters”), for whom Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and Scotia Capital (USA) Inc. (collectively, “you”) are acting as representatives (the “Representatives”), $750,000,000 aggregate principal amount of its 4.750% Notes due 2026 (the “Securities”). The Securities are to be issued under an Indenture dated as of April 1, 1986, as amended and supplemented by the First Supplemental Indenture thereto dated as of February 15, 1991, the Second Supplemental Indenture thereto dated as of February 1, 1993, the Third Supplemental Indenture thereto dated as of October 22, 2001, the Fourth Supplemental Indenture thereto dated as of March 12, 2002, and the Fifth Supplemental Indenture thereto dated as of March 30, 2020 (as so amended and supplemented, the “Indenture”), each between the Company and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor trustee (the “Trustee”) to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), as trustee (the “Original Trustee”).
The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (No. 333-256995), including a prospectus, relating to securities (the “ShelfSecurities”), including the Securities, to be issued from time to time by the Company. Such registration statement as amended to the date of this Agreement, and including the information deemed to be part of such registration statement pursuant to Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf Securities dated June 10, 2021, in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement dated May 15, 2023 relating to the Securities in the form first used to confirm sales of the Securities (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and the term “preliminaryprospectus” means any preliminary form of the Prospectus including, without limitation, the Time of Sale Prospectus (as defined below). For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act; “Time of Sale Prospectus” means, collectively, the preliminary prospectus supplement dated May 15, 2023 relating to the Securities, the accompanying prospectus covering the Shelf Securities dated June 10, 2021, and the free writing prospectuses, if any, identified in Schedule II hereto; “broadly available road show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person; and “Applicable Time” means 4:50 p.m. (New York City time) on May 15, 2023. As used herein, the terms “Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents incorporated and deemed to be incorporated by reference therein. The terms “supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations and Warranties. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the Company’s knowledge, threatened by the Commission. If the Registration Statement is an automatic shelf registration statement as defined in Rule 405 under the Securities Act, the Company was at all relevant times and is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration Statement as an automatic shelf registration statement and to file on Form S-3 and the Company has not received notice that the Commission objects to the use of the Registration Statement as an automatic shelf registration statement.
(b) (i) Each document filed or to be filed pursuant to the Exchange Act and incorporated or deemed to be incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or will comply when so filed in all material respects with the
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Exchange Act and the applicable rules and regulations of the Commission thereunder; (ii) the Registration Statement, when it first became effective, at the respective times (if subsequent to such first effective date) when the Company’s most recent Annual Report on Form 10-K or any amendment thereto was filed with the Commission, and at each “new effective date” with respect to the Underwriters pursuant to Rule 430B(f)(2) of the Securities Act Regulations (as defined below), did not and will not, and the Registration Statement, as amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iv) the Registration Statement and the Prospectus comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder (the “Securities Act Regulations”); (v) the Time of Sale Prospectus does not and, at the Applicable Time, will not, and at the time of each sale of Securities in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vi) each free writing prospectus, when taken together with the preliminary prospectus accompanying, or delivered prior to delivery of, or filed prior to the first use of, such free writing prospectus, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vii) each broadly available road show, if any, and the investor presentation identified in Schedule II-B hereto (the “Investor Presentation”), when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and (viii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to (A) statements or omissions in the Registration Statement, the Time of Sale Prospectus, any preliminary prospectus, any free writing prospectus or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein or (B) any trustee’s Statement of Eligibility on Form T-1 (each, a “Form T-1”) under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).
(c) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities, the Company was not, and as of the Applicable Time the Company will not be, an “ineligible issuer” as defined in Rule 405 under the Securities Act. Each free writing prospectus that the Company has filed, or
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is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the Securities Act Regulations. Except for the free writing prospectuses, if any, identified in Schedule II hereto, the Investor Presentation and electronic road shows, if any, each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior consent, prepare, use or refer to, any free writing prospectus. Each free writing prospectus identified in Schedule II hereto, as of its issue date and at all times through the completion of the public offering and sale of the Securities, did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Time of Sale Prospectus or the Prospectus.
(d) The Company has been duly incorporated, is validly existing as a corporation in good standing (or the local equivalent) under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing (or the local equivalent) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing (or the local equivalent) would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, or on the Company’s ability to perform its obligations under this Agreement, the Securities or the Indenture.
(e) Certain direct and indirect subsidiaries of the Company are identified on Exhibit A hereto (each a “Key Subsidiary” and collectively, the “Key Subsidiaries”). Other than the Key Subsidiaries, the Company has no subsidiary that would constitute a “significant subsidiary” as such term is defined in Rule 1-02 of Regulation S-X. Each Key Subsidiary has been duly incorporated or organized, as the case may be, is validly existing as a corporation or limited liability company, as the case may be, in good standing (or the local equivalent) under the laws of the jurisdiction of its incorporation or organization, as the case may be, has the corporate or limited liability company, as the case may be, power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus and the Prospectus and is duly qualified to transact business and is in good standing (or the local equivalent) in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing (or the local equivalent) would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; all of the issued shares of capital stock or limited liability company interests, as the case may be, of each Key Subsidiary have been duly and validly authorized and issued, are fully paid and non-assessable and, except as set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, are owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims, except to the extent that the failure to be free and clear of all liens, encumbrances, equities or claims would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(f) This Agreement has been duly authorized, executed and delivered by the Company.
(g) The outstanding common shares, par value $1.25 per share (the “Common Shares”), of the Company have been duly authorized and are validly issued, fully paid and non-assessable.
(h) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in law or in equity) and public policy.
(i) The Securities have been duly authorized by the Company and, at the Closing Date, will have been duly executed by the Company and, when authenticated by the Trustee in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with this Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, fraudulent transfer or other similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in law or in equity) and public policy.
(j) The Trustee has been duly appointed by the Company to serve as, and is, the trustee, security registrar, transfer agent and paying agent under the Indenture. The Trustee has filed a Form T-1 as part of the Registration Statement and the Form T-1 is effective.
(k) The Securities and the Indenture conform and will conform in all material respects to the respective statements relating thereto contained in the Time of Sale Prospectus and the Prospectus.
(l) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Securities will not contravene any provision of applicable law or the articles of incorporation or bylaws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any Key Subsidiary, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture or the Securities, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Securities.
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(m) There has not occurred any material adverse change, or any development involving a prospective material adverse change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus on the date of this Agreement.
(n) [Reserved]
(o) There are no legal or governmental proceedings pending or, to the Company’s knowledge, threatened to which the Company or any of its subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries is subject that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.
(p) Each preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the Securities Act Regulations.
(q) The Company is not, and after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(r) Except as disclosed in the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries (i) are in compliance with any and all applicable foreign, Federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval, except where such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(s) Except as disclosed in the Time of Sale Prospectus and the Prospectus, (i) there are no proceedings pending against the Company or its subsidiaries under Environmental Laws in which a government authority is also a party, other than such proceedings regarding which it is reasonably believed no monetary sanctions of $1,000,000 or more will be imposed and (ii) the Company does not know of any facts or issues regarding compliance with Environmental Laws or other obligations under Environmental Laws, that it reasonably expects to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
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(t) Except as disclosed in the Time of Sale Prospectus and the Prospectus, to the knowledge of the Company, there are no costs or liabilities of the Company or its subsidiaries associated with Environmental Laws (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related constraints on operating activities and any liabilities to third parties) which would, singly or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(u) There are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company or to require the Company to include such securities with the Securities registered pursuant to the Registration Statement.
(v) The Company and each of its subsidiaries (i) have all necessary consents, authorizations, approvals, orders, certificates and permits of and from, and have made all declarations and filings with, all Federal, state, local and other governmental, administrative or regulatory authorities, all self-regulatory organizations and all courts and other tribunals, to own, lease, license and use their respective properties and assets and to conduct their respective businesses in the manner described in the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain such consents, authorizations, approvals, orders, certificates and permits or make such declarations and filings would not have a material adverse effect on the Company and its subsidiaries, taken as a whole, and (ii) have not received any notice of proceedings relating to revocation or modification of any such consent, authorization, approval, order, certificate or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(w) No material labor dispute exists with the employees of the Company or any of its subsidiaries or, to the Company’s knowledge, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that could have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(x) The Company and its subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is material to the Company and its subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects, except such as (i) are described in the Time of Sale Prospectus and the Prospectus; (ii) do not materially affect the value of such property; (iii) do not interfere with the use made and proposed to be made of such property by them; or (iv) would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; any real property and buildings held under lease or license by them are held under valid, subsisting and enforceable leases or licenses, as the case may be, with such exceptions as are not material to the Company and its subsidiaries, taken as a whole, and do not interfere with the use made and proposed to be
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made of such property and buildings by them in a manner that would have a material adverse effect on the Company and its subsidiaries, taken as a whole; and all licenses to harvest timber granted by Canada or any province or territory thereof to the Company or any of its subsidiaries are valid, subsisting and enforceable, with such exceptions as are not material to the Company and its subsidiaries, taken as a whole.
(y) Each of the Company and its subsidiaries own, possess or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “intellectual property rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others with respect to any intellectual property rights that, if determined adversely to the Company or any of its subsidiaries, would individually or in the aggregate reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(z) The financial statements and related notes included in the Registration Statement, the Time of Sale Prospectus and the Prospectus present fairly in all material respects the financial position of the Company and its consolidated subsidiaries as of the dates shown and their results of operations and cash flows for the periods shown, and all such financial statements and the notes thereto have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis except as disclosed therein.
(aa) The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus presents fairly the information called for in all material respects and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto.
(bb) The Company and its subsidiaries maintain systems of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Time of Sale Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (A) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (B) no change in the Company’s internal control over financial reporting that has materially adversely affected, or is reasonably likely to materially adversely affect, the Company’s internal control over financial reporting.
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(cc) Except for timberlands, for which the Company does not maintain insurance, the Company and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as are adequate to protect the Company and its subsidiaries and their respective businesses taken as a whole; and neither the Company nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business, except, in the case of both (i) and (ii), where the failure to continue or renew such coverage or to obtain similar coverage at reasonable cost from similar insurers, individually or in the aggregate, would not have a material adverse effect on the Company and its subsidiaries, taken as a whole.
(dd) There is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers, in their capacities as such, to comply with Section 402 (related to loans) and Sections 302 and 906 (related to certifications) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-OxleyAct”) and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Regulations”), nor, to the knowledge of the Company, has there been any failure on the part of the Company or any of the Company’s directors or officers, in their capacities as such, to comply with any other provision of the Sarbanes-Oxley Act or the Sarbanes-Oxley Regulations.
(ee) With respect to the stock options (the “Stock Options”) granted pursuant to the stock-based compensation plans of the Company and its subsidiaries (the “Company Stock Plans”), (i) each grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof); (ii) each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act and all other applicable laws and regulatory rules or requirements, including the rules of the New York Stock Exchange; (iii) the per share exercise price of each Stock Option was equal to or greater than the fair market value of a share of the applicable stock on the applicable Grant Date; and (iv) each such grant was properly accounted for in accordance with generally accepted accounting principles consistently applied as in effect in the United States in the financial statements of the Company and disclosed in the Company’s filings with the Commission in accordance in all material respects with the Exchange Act and all other applicable laws, except in the case of clause (ii) where such failure to comply would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company of granting, Stock Options prior to, or otherwise coordinating the grant of Stock Options with, the release or other public announcement of material information regarding the Company or its subsidiaries or their results of operations or prospects. The Company has not designated any Stock Options as “incentive stock options” under Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”).
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(ff) The Securities rank and will rank pari passu in right of payment with all existing and future unsecured senior indebtedness of the Company and senior in right of payment to all other existing and future unsecured indebtedness of the Company.
(gg) The Company and each of its subsidiaries have filed or caused to be filed all Federal, state, local and foreign tax returns, reports, information returns and statements which have been required to be filed by applicable law (except for returns, reports, information returns and statements the failure to file which would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, and the failure to file which would not, singly or in the aggregate, adversely affect the Company’s qualification as a real estate investment trust (a “REIT”) for Federal or state tax purposes) and have paid all taxes required to be paid and any other assessment, fine or penalty levied against them, to the extent that any of the foregoing is due and payable (except, in all cases, for any such tax, assessment, fine or penalty that is being contested in good faith and in respect of which adequate reserves are being maintained in accordance with generally accepted accounting principles and except to the extent any such failure to pay would not, singly or in the aggregate, reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole, and which failure to pay would not, singly or in the aggregate, adversely affect the Company’s qualification as a REIT for Federal or state tax purposes), and no tax deficiency has been determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or knowledge of any tax deficiency which would, singly or in the aggregate, reasonably be expected to be determined adversely to the Company or its subsidiaries which could reasonably be expected to have) a material adverse effect on the Company and its subsidiaries, taken as a whole.
(hh) Commencing with its taxable year ended December 31, 2010, the Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code and its organization and current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code. The direct subsidiaries of the Company that are partnerships or limited liability companies (“Subsidiary Partnerships”) and each qualified REIT subsidiary of the Company have been and will continue to be treated as partnerships or disregarded entities for U.S. Federal income tax purposes and not as corporations, associations taxable as corporations or publicly traded partnerships. In the case of any Subsidiary Partnerships that have terminated, such Subsidiary Partnerships were treated as partnerships or disregarded entities for U.S. Federal income tax purposes and not as corporations, associations taxable as corporations or publicly traded partnerships through the date of termination of such Subsidiary Partnerships.
(ii) The Company will use its commercially reasonable efforts to monitor the ownership of the Company’s capital stock to ensure that any ownership limit waiver agreement by and between the Company and any person or entity will not cause the Company to fail to satisfy the requirements of Section 856(a)(6) of the Code, including, without limitation, making periodic inquiries regarding the ownership of the capital stock
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of the Company by any person or entity to which any such waiver is granted and making periodic reviews of the ownership of the capital stock of the Company by other shareholders to the extent the Company deems such inquiries necessary or advisable in its sole discretion; the Company will, if necessary to prevent a violation of the requirements of Section 856(a)(6) of the Code, promptly revoke any ownership limit waiver that has been granted.
(jj) (i) Neither the Company nor any of its subsidiaries or affiliates, nor any director, officer, or employee, nor, to the Company’s knowledge, any agent or representative of the Company or of any of its subsidiaries or affiliates (in each case, in his, her or its capacity as such), has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence official action in material violation of any applicable anti- corruption laws; (ii) the Company and its subsidiaries and affiliates have conducted their businesses in compliance in all material respects with applicable anti-corruption laws and have instituted and maintained and will continue to maintain policies and procedures reasonably designed to promote and achieve compliance in all material respects with such laws and with the representations and warranties contained herein; and (iii) neither the Company nor its subsidiaries will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of any applicable anti-corruption law.
(kk) The operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable financial recordkeeping and reporting requirements, including, to the extent applicable, those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti- money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ll) (i) Neither the Company nor any of its subsidiaries, nor any director, officer, or employee thereof, nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is: (A) the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or other relevant sanctions authority with jurisdiction
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over the Company or any of its subsidiaries (collectively, “Sanctions”), nor (B) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, North Korea, Syria, the Crimea Region and the non-government controlled areas of the Zaporizhzhia and Kherson Regions of Ukraine, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, or any other Covered Region of Ukraine identified pursuant to Executive Order 14065); (ii) the Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (A) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (B) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise); and (iii) for the past 5 years, the Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
(mm) (i)(A) Except as disclosed in the Time of Sale Prospectus and the Prospectus, to the Company’s knowledge, there has been no security breach or other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and Data”) and (B) the Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to their IT Systems and Data; and (ii) the Company and its subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as would not, in the case of clause (i) or this clause (ii), individually or in the aggregate, have a material adverse effect on the Company and its subsidiaries, taken as a whole and the Company and its subsidiaries have implemented backup and disaster recovery technology.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective principal amounts of Securities set forth in Schedule I hereto opposite their names at a purchase price of 99.322% of the principal amount thereof.
3. Terms of Public Offering. The Company is advised by you that the Underwriters propose to make a public offering of their respective portions of the Securities as soon after this Agreement has become effective as in your judgment is advisable. The Company is further advised by you that the Securities are to be offered to the public upon the terms set forth in the Prospectus.
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4. Payment and Delivery. Payment for the Securities shall be made to the Company in Federal or other funds immediately available in New York City against delivery of such Securities for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on May 17, 2023, or at such other time on the same or such later date, not later than the fifth business day thereafter, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “Closing Date.”
The Securities shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Closing Date. The Securities shall be delivered to you on the Closing Date for the respective accounts of the several Underwriters, with any transfer taxes payable in connection with the transfer of the Securities to the Underwriters duly paid, against payment of the purchase price therefor as specified in this Agreement.
5. Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Securities to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Securities on the Closing Date are subject to the condition that no stop order suspending the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings therefor initiated or, to the Company’s knowledge, threatened by the Commission.
The several obligations of the Underwriters are subject to the following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus on the date of this Agreement that, in any such case, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable to market the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
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(b) The Underwriters shall have received on the Closing Date a certificate, dated as of the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 5(a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received the following on the Closing Date, each of which shall be in form and substance satisfactory to the Representatives: (i) an opinion of Jose Quintana, Esq., Senior Legal Counsel of the Company, dated as of the Closing Date; (ii) an opinion of Cravath, Swaine & Moore LLP, special New York counsel to the Company, dated as of the Closing Date; (iii) a negative assurance statement of Cravath, Swaine & Moore LLP, special New York counsel to the Company, dated as of the Closing Date; and (iv) an opinion of Covington & Burling LLP, special tax counsel to the Company, dated as of the Closing Date.
(d) The Underwriters shall have received on the Closing Date an opinion and negative assurance statement of Davis Polk & Wardwell LLP, counsel for the Underwriters, dated as of the Closing Date, in form and substance satisfactory to you.
(e) The Underwriters shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Underwriters, from KPMG LLP, an independent registered public accounting firm, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the Company’s historical and certain financial information; provided that such letter delivered on the date hereof shall use a “cut-off date” not earlier than three business days prior to the date hereof, and such letter delivered on the Closing Date shall use a “cut-off date” not earlier than three business days prior to the Closing.
6. Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company covenants with each Underwriter as follows:
(a) To furnish to you, without charge, copies of the Registration Statement (including exhibits thereto and documents incorporated by reference therein) and to furnish to you in New York City, without charge, prior to 10:00 a.m. New York City time on the second business day succeeding the date of this Agreement and during the periods mentioned in Section 6(e) and (f) below, as many copies of the Time of Sale Prospectus, the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or supplement and, unless determined necessary or advisable by the Company, based on the advice of counsel, to comply with applicable law, rule or regulation, or unless prepared and filed in the ordinary course of business, not to file any such proposed amendment or supplement to which you reasonably object.
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(c) To furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) If the Time of Sale Prospectus is being used to solicit offers to buy the Securities at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances when delivered to a prospective purchaser, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If, during such period after the first date of the public offering of the Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses you will furnish to the Company) to which Securities may have been sold by you on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.
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(g) To endeavor to qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably request; provided that in connection therewith the Company shall not be required to (i) qualify as a foreign corporation in any jurisdiction in which it would not otherwise be required to so qualify, (ii) file general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it would not otherwise be subject.
(h) To make generally available to the Company’s security holders and to you as soon as practicable (which may be satisfied by the Company’s public filings with the Commission) an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder.
(i) Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Securities under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including the filing fees payable to the Commission relating to the Securities and all printing costs associated therewith, and, if applicable, the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified (ii) all costs and expenses related to the transfer and delivery of the Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Securities under state securities laws and all expenses in connection with the qualification of the Securities for offer and sale under state securities laws as provided in Section 6(g) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum, (iv) if applicable, all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Securities by the Financial Industry Regulatory Authority, Inc., and any fees charged by rating agencies for the rating of the Securities, (v) the cost of the preparation, issuance and delivery of the Securities, (vi) the costs and charges of any trustee, transfer agent, registrar or depositary, (vii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Securities, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection
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with the road show, the document production charges and expenses associated with printing this Agreement, in each case, as applicable, and (viii) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 10 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, transfer taxes payable on resale of any of the Securities by them and any advertising expenses connected with any offers they may make.
(j) During the period beginning on the date of this Agreement and continuing through and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Securities without the prior written consent of the Representatives.
(k) To prepare and to provide to the Underwriters, as promptly as practicable after the time that the final terms of the Securities and the offering thereof have been established, a final term sheet relating to the offering of the Securities, containing only information that describes the final terms of the Securities or the offering in a form consented to by you, and to file such final term sheet within the period required by Rule 433(d)(5)(ii) under the Securities Act.
(l) To use its commercially reasonable efforts to continue to meet the requirements for qualification as a REIT under the Code for each of its taxable years for so long as the Board of Directors of the Company deems it in the best interests of the Company to remain so qualified.
7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of the Underwriter.
8. Indemnity andContribution. (a) The Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any “road show” as defined in Rule 433(h) under the Securities Act that is a free writing prospectus, the Investor Presentation, any “issuer free writing prospectus” as defined in Rule 433(h) under the Securities Act, any “issuer information” as defined in Rule 433(h) under the Securities Act that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, or the Prospectus, or any amendment or supplement to any of the foregoing, or caused by any omission or alleged omission to state therein a material fact required
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to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any “issuer free writing prospectus” as defined in Rule 433(h) under the Securities Act or the Prospectus, or any amendment or supplement to any of the foregoing.
(c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifyingparty”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel; (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them; or (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Representatives, in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity has been or could have been sought hereunder by such
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indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and no admission of fault.
(d) To the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus, bear to the aggregate initial public offering price of the Securities as set forth in such table. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 8 are several in proportion to the respective aggregate principal amounts of Securities they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 8 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within
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the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Securities.
9. Termination. The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this Agreement and prior to the purchase of the Securities by the Underwriters on the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, the New York Stock Exchange, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market if, in the judgment of the Representatives, the effect of any such suspension referred to in this clause (ii), singly or together with any other suspension of the nature specified in this clause (ii), makes it impractical or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus, (iii) a material disruption in securities settlement, payment or clearance services in the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates or controls or any calamity or crisis that, in the judgment of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date any one or more of the Underwriters shall fail or refuse to purchase Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate principal amount of Securities to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Securities set forth opposite their respective names in Schedule I bears to the aggregate principal amount of Securities set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the principal amount of Securities that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such
20
aggregate principal amount of Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Securities and the aggregate principal amount of Securities with respect to which such default occurs is more than one-tenth of the aggregate principal amount of Securities to be purchased on such date, and arrangements satisfactory to you and the Company for the purchase of such Securities are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case, either you or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
11. Absence of Fiduciary Relationship. The Company acknowledges and agrees that the Underwriters named in this Agreement are acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no such Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on behalf of the Company. The Company waives to the full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary duty in connection with the offering of the Securities.
12. Recognition of the U.S.Special Resolution Regimes. (a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
21
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
For purposes of this Section a “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “U.S. Special ResolutionRegime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
13. Waiver of Jury Trial. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
14. Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
15. ApplicableLaw. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
16. Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives at: (i) Goldman Sachs & Co. LLC, 200 West Street, New York, New York 10282-2198, Attention: Registration Department; (ii) J.P. Morgan Securities LLC, 383 Madison Avenue, New York, NY 10179, Attn: Investment Grade Syndicate Desk, Fax: (212) 834-6081; (iii) Morgan Stanley & Co. LLC, 1585 Broadway, New York, New York 10036, Attention: Investment Banking; (iv) MUFG Securities Americas Inc., 1221 Avenue of the Americas, 6th Floor, New York, New York 10020, Attention: Capital Markets Group, facsimile: (646) 434-3455; and (v) Scotia Capital (USA) Inc., 250 Vesey Street, New York, New York 10281, Attention: Debt Capital Markets / Chief Legal Officer, U.S., Email: US.Legal@scotiabank.com; and, if to the Company, shall be delivered, mailed or sent to it at 220 Occidental Avenue South, Seattle, Washington 98104, Attention: Vice President and Treasurer.
[Signature Pages Follow]
22
| Very truly yours, | |
|---|---|
| WEYERHAEUSER COMPANY | |
| By: | /s/ Kristy T. Harlan |
| Name: | Kristy T. Harlan |
| Title: | Senior Vice President, General Counsel and Corporate Secretary |
[Signature Page to Underwriting Agreement]
| Accepted as of the date hereof | |
|---|---|
| Goldman Sachs & Co. LLC | |
| By: | /s/ Jonathan Zwart |
| Name: | Jonathan Zwart |
| Title: | Managing Director |
| J.P. Morgan Securities LLC | |
| --- | --- |
| By: | /s/ Som Bhattacharyya |
| Name: | Som Bhattacharyya |
| Title: | Executive Director |
| Morgan Stanley & Co. LLC | |
| --- | --- |
| By: | /s/ Brendan Dowling |
| Name: | Brendan Dowling |
| Title: | Vice President |
| MUFG Securities Americas Inc . | |
| --- | --- |
| By: | /s/ Richard Testa |
| Name: | Richard Testa |
| Title: | Managing Director |
| Scotia Capital (USA) Inc. | |
| --- | --- |
| By: | /s/ Elsa Wang |
| Name: | Elsa Wang |
| Title: | Managing Director, Head of Transaction Advisory |
Acting severally on behalf of themselves and the several Underwriters named in Schedule I hereto.
[Signature Page to Underwriting Agreement]
SCHEDULE I
| Underwriter | Principal Amount of2026 NotesTo Be Purchased | |
|---|---|---|
| Goldman Sachs & Co. LLC | $ | 97,500,000 |
| J.P. Morgan Securities LLC | $ | 97,500,000 |
| Morgan Stanley & Co. LLC | $ | 97,500,000 |
| MUFG Securities Americas Inc. | $ | 97,500,000 |
| Scotia Capital (USA) Inc. | $ | 97,500,000 |
| BofA Securities, Inc. | $ | 60,000,000 |
| Wells Fargo Securities, LLC | $ | 60,000,000 |
| Rabo Securities USA, Inc. | $ | 30,000,000 |
| PNC Capital Markets, LLC | $ | 30,000,000 |
| U.S. Bancorp Investments, Inc. | $ | 30,000,000 |
| Truist Securities, Inc. | $ | 30,000,000 |
| Siebert Williams Shank & Co., LLC | $ | 11,250,000 |
| BNY Mellon Capital Markets, LLC | $ | 11,250,000 |
| Total | $ | 750,000,000 |
SCHEDULE II
Free Writing Prospectuses
Pricing Term Sheet dated May 15, 2023, substantially in the form set forth in Schedule II-A hereto.
SCHEDULE II-A
WEYERHAEUSER COMPANY PRICING TERM SHEET
Issuer Free Writing Prospectus
Filed Pursuant to Rule 433
Registration No. 333-256995
May 15, 2023
WEYERHAEUSER COMPANY PRICING TERM SHEET
4.750% Notes due 2026
This pricing term sheet relates only to the securities described below and should be read together with Weyerhaeuser Company’s preliminary prospectus supplement dated May 15, 2023 (the “Preliminary Prospectus Supplement”), the accompanying prospectus dated June 10, 2021 and the documents incorporated and deemed to be incorporated by reference therein. All references to dollar amounts are references to U.S. dollars and, unless otherwise expressly stated or the context otherwise requires, the terms “Weyerhaeuser,” the “Company,” “us,” “we” and “our” mean Weyerhaeuser Company excluding its subsidiaries.
| Issuer: | Weyerhaeuser Company |
|---|---|
| Trade Date: | May 15, 2023 |
| Expected Settlement Date: | May 17, 2023 (T+2) |
| Anticipated Ratings*: | Baa2 by Moody’s Investors Service, Inc. (stable outlook) BBB by S&P Global Ratings, a division of S&P Global Inc. (stable outlook) |
| Title of Securities: | 4.750% Notes due 2026 (the “notes”) |
| Principal Amount: | $750,000,000 |
| Maturity Date: | May 15, 2026 |
| Interest Rate: | 4.750% per annum, accruing from May 17, 2023 |
| Interest Payment Dates: | May 15 and November 15, commencing November 15, 2023 |
| Yield to Maturity: | 4.869% |
| Price to Public: | 99.672%, plus accrued interest, if any |
| Spread to Benchmark Treasury: | +120 basis points |
| Benchmark Treasury: | 3.625% due May 15, 2026 |
| Benchmark Treasury Yield: | 3.669% |
| Optional Redemption: | The Company may redeem the notes at the Company’s option, in whole or in part, at any time and from time to time, at a redemption price<br>(expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:<br> <br><br><br><br>(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption<br>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, less (b) interest accrued to the<br>date of redemption, and |
| (2) 100% of the principal amount of the notes to be redeemed, plus, in either case, accrued and unpaid interest thereon to the redemption date. | |
| --- | --- |
| See the Preliminary Prospectus Supplement for the definition of “Treasury Rate” and for further terms and provisions applicable to optional redemption. | |
| CUSIP/ISIN: | 962166 CC6 / US962166CC62 |
| Joint Book-Running Managers: | Goldman Sachs & Co. LLC |
| J.P. Morgan Securities LLC | |
| Morgan Stanley & Co. LLC | |
| MUFG Securities Americas Inc. | |
| Scotia Capital (USA) Inc. | |
| BofA Securities, Inc. | |
| Wells Fargo Securities, LLC | |
| Co-Managers: | Rabo Securities USA, Inc. |
| PNC Capital Markets LLC | |
| U.S. Bancorp Investments, Inc. | |
| Truist Securities, Inc. | |
| Siebert Williams Shank & Co., LLC | |
| BNY Mellon Capital Markets, LLC | |
| * | Note: A securities rating is not a recommendation to buy, sell or hold securities and is subject to revision or<br>withdrawal at any time. |
| --- | --- |
* * *
The issuer has filed a registration statement (including a prospectus) with the Securities and Exchange Commission (the “SEC”) for the offeringto which this communication relates. Before you invest, you should read the prospectus in that registration statement and the related prospectus supplement and other documents the issuer has filed with the SEC for more complete information about theissuer and this offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus andrelated prospectus supplement if you request it by contacting Goldman Sachs & Co. LLC by telephone at 1-866-471-2526;J.P. Morgan Securities LLC by telephone (collect) at 1-212-834-4533; Morgan Stanley & Co. LLC by telephone (toll-free)at 1-866-718-1649; MUFG Securities Americas Inc. by telephone (toll-free) at 1-877-649-6848; or Scotia Capital (USA) Inc. by telephone (toll-free) at 1-800-372-3930.
SCHEDULE II-B
None.
EXHIBIT A
Weyerhaeuser NR Company
Weyerhaeuser International, Inc.
Weyerhaeuser Company Limited
Weyerhaeuser Timber Holdings, Inc.
Weyerhaeuser SC Company
EX-4.2
Exhibit 4.2
Officers’ Certificate Pursuant to Sections 2.1, 2.3, 2.4(3) and 11.5 of the Indenture
Dated: May 17, 2023
The undersigned, having read the appropriate provisions of the Indenture dated as of April 1, 1986 (the “Original Indenture”), as amended and supplemented by the First Supplemental Indenture dated as of February 15, 1991 (the “First Supplemental Indenture”), the Second Supplemental Indenture dated as of February 1, 1993 (the “Second Supplemental Indenture”), the Third Supplemental Indenture dated as of October 22, 2001 (the “Third Supplemental Indenture”), the Fourth Supplemental Indenture dated as of March 12, 2002 (the “Fourth Supplemental Indenture”) and the Fifth Supplemental Indenture dated as of March 30, 2020 (the “Fifth Supplemental Indenture”) (the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth Supplemental Indenture, is hereinafter called the “Indenture”), each between Weyerhaeuser Company, a Washington corporation (the “Company”), and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as trustee (the “Trustee”), successor to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), including Sections 2.1, 2.3, 2.4 and 11.5 thereof and the definitions in such Indenture relating thereto, and certain other corporate documents and records, and having made such examination and investigation as, in the opinion of the undersigned, each considers necessary to enable the undersigned to express an informed opinion as to whether or not the conditions set forth in the Indenture relating to the establishment of the terms of a series of securities under the Indenture entitled the 4.750% Notes due 2026 (the “Offered Securities”) and the form of certificate evidencing the Offered Securities have been complied with, and whether the conditions in the Indenture relating to the authentication and delivery by the Trustee of the Offered Securities have been complied with, certify that:
the terms of the Offered Securities were established by the undersigned pursuant to authority delegated to them by the resolutions duly adopted by the Board of Directors of the Company on February 9, 2017 (the “Resolutions”), and such terms are as set forth and incorporated by reference in Annex I hereto,
the form of certificate evidencing the Offered Securities was established by the undersigned pursuant to authority delegated to them by the Resolutions and is in substantially the form attached as Exhibit 1 to Annex I hereto, it being understood that the legends appearing on any such certificate need to be included only so long as such certificate evidences a Global Security (as defined in the Indenture) and that, as provided in Annex I, the format (but not the substance) of the certificates evidencing the Offered Securities may be changed,
the form and terms of the Offered Securities have been established pursuant to Sections 2.1 and 2.3 of the Indenture and comply with the Indenture, and
to the knowledge of the undersigned, all conditions provided for in the Indenture (including, without limitation, those set forth in Sections 2.1, 2.3 and 2.4 of the Indenture) relating to the establishment of the terms of the Offered Securities and the form of certificate evidencing the Offered Securities, and relating to the execution, authentication and delivery of the Offered Securities, have been complied with.
This certificate may be executed by the parties hereto in counterparts, each of which when so executed shall be deemed to be an original, with the same effect as if the signatures thereto and hereto were on the same instrument, but all such counterparts shall together constitute but one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
2
IN WITNESS WHEREOF, we have hereunto set our hands as of the date first written above.
| By: | /s/ David M. Wold |
|---|---|
| Name: David M. Wold | |
| Title: Senior Vice President and Chief Financial Officer | |
| By: | /s/ Kristy T. Harlan |
| --- | --- |
| Name: Kristy T. Harlan | |
| Title: Senior Vice President General Counsel and Corporate Secretary |
[Signature Page toOfficers’ Certificate (Indenture)]
ANNEX I
The terms “Indenture” and “Company,” as used in this Annex I, have the respective meanings set forth in the Officers’ Certificate to which this Annex I is attached, and other capitalized terms used in this Annex I and not otherwise defined herein have the same definitions as in the Indenture.
(1) The series of Securities established hereby shall be known and designated as the 4.750% Notes due 2026 (the “Offered Securities”).
(2) The aggregate principal amount of the Offered Securities that may be authenticated and delivered under the Indenture is initially limited to $750,000,000, except for the Offered Securities authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Offered Securities pursuant to Sections 2.2A, 2.8, 2.9, 2.11, 8.5 or 12.3 of the Indenture or pursuant to the provisions appearing under the caption “Offer to Purchase Upon Change of Control Triggering Event” in the form of certificate evidencing the Offered Securities attached hereto as Exhibit 1. However, the series of Securities of which the Offered Securities are a part may be re-opened from time to time by the Company for the issuance of additional Offered Securities, without the consent of the Holders of the Offered Securities, so long as any such additional Offered Securities have the same form and terms (except that any such additional Offered Securities may be dated as of different dates and may have different dates from which interest thereon shall begin to accrue), and carry the same right to receive accrued and unpaid interest, as the Offered Securities theretofore issued; provided, however, that, notwithstanding the foregoing, the series of Securities of which the Offered Securities are a part may not be re-opened if the Company has effected satisfaction and discharge or defeasance with respect to the Offered Securities pursuant to Section 10.1(A) or 10.1(B) of the Indenture; and provided, further, that no additional Offered Securities may be issued at a price that would cause such additional Offered Securities to have “original issue discount” within the meaning of Section 1273 of the Internal Revenue Code of 1986, as amended.
(3) The Offered Securities are to be issuable only as Registered Securities without coupons. The Offered Securities shall be issued in book-entry form and represented by one or more Global Securities, the initial Depositary for such Global Securities shall be The Depository Trust Company and the depositary arrangements shall be those employed by whomever shall be the Depositary with respect to such Global Securities from time to time. Notwithstanding the foregoing, certificated Offered Securities in definitive form may be issued in exchange for Global Securities under the circumstances contemplated by clauses (c)(i), (ii) and (iii) of Section 2.2A of the Indenture.
(4) The Offered Securities authorized hereby shall be originally issued on May 17, 2023 (the “Closing Date”) and shall be sold by the Company to the underwriters (the “Underwriters”) named in the Underwriting Agreement dated May 15, 2023 (the “Underwriting Agreement”) among the Company and Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and Scotia Capital (USA) Inc. as representatives (the “Representatives”) of the several Underwriters (the form, terms, execution and delivery of such Underwriting Agreement
Annex I-1
being hereby authorized, ratified, confirmed and approved in all respects), at a price equal to 99.322% of the principal amount of the Offered Securities. The initial price to the public of the Offered Securities originally issued on the Closing Date shall be 99.672% of the principal amount thereof plus accrued interest, if any, from May 17, 2023, and underwriting discounts and commissions shall be 0.350% of the principal amount of such Offered Securities.
(5) The final maturity date of the Offered Securities on which the principal thereof is due and payable shall be November 15, 2026.
(6) The principal of the Offered Securities will bear interest at the rate set forth in the form of certificate evidencing the Offered Securities attached as Exhibit 1 hereto. Interest on the Offered Securities will accrue from the date, and will be payable on the dates and to the persons, provided in the form of certificate evidencing the Offered Securities attached as Exhibit 1 hereto. Interest on the Offered Securities will be computed on the basis of a 360-day year of twelve 30-day months. No additional amounts of the nature referred to in subparagraph (15) of Section 2.3 of the Indenture shall be payable on the Offered Securities.
(7) The principal of and premium, if any, and interest on the Offered Securities shall be payable, the Offered Securities may be surrendered for registration of transfer and exchange, and notices and demands to or upon the Company in respect of the Offered Securities or the Indenture may be served, at the agency of the Company maintained for such purposes from time to time in the Borough of Manhattan, The City of New York, and the Company hereby appoints the Trustee as trustee, paying agent, transfer agent and registrar for the Offered Securities and designates the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of New York, as the Company’s agency for the foregoing purposes; provided, however, that the Company, subject to the applicable provisions of the Indenture, may, with respect to the Offered Securities, appoint another Person to be the registrar, transfer agent or paying agent, and appoint additional registrars, transfer agents and paying agents, with respect to the Offered Securities, so long as the Company shall at all times maintain an agency for the foregoing purposes in the Borough of Manhattan, The City of New York for the Offered Securities.
(8) The Offered Securities may be redeemed by the Company, in whole at any time or from time to time in part, at the option of the Company on any date upon not less than 10 nor more than 60 days notice given as provided in the Indenture, at a redemption price calculated as provided in the form of Offered Securities attached hereto as Exhibit 1, plus accrued and unpaid interest on the principal amount of the Offered Securities being redeemed to the applicable redemption date; provided, however, that payments of interest on the Offered Securities that are due and payable on or prior to a date fixed for redemption of the Offered Securities at the option of the Company will be payable to the Holders of the Offered Securities registered as such at the close of business on the relevant record dates according to their terms and the terms and provisions of the Indenture. Any redemption of Offered Securities shall be made on the other terms and conditions set forth in the Indenture. The Offered Securities shall not be subject to a sinking fund or analogous provision.
Annex I-2
(9) The Company will be required to offer to repurchase the Offered Securities, and to repurchase duly tendered Offered Securities, upon the terms, and subject to the conditions, set forth under the caption “Offer to Purchase Upon Change of Control Triggering Event” in the form of certificate evidencing the Offered Securities attached as Exhibit 1 hereto.
(10) The principal of, premium, if any, and interest on the Offered Securities 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.
(11) The Offered Securities shall be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
(12) To the extent that any provision of the Indenture or the Offered Securities provides for the payment of interest on overdue principal of, or premium, if any, or interest on, the Offered Securities, then, to the extent permitted by applicable law, interest on such overdue principal, premium, if any, and interest shall accrue at the rate of interest borne by the Offered Securities, and, anything in the Indenture to the contrary notwithstanding, in the case of any requirement in the Indenture that the Company pay (or that the Trustee distribute) interest on overdue principal of, or premium, if any, or interest on, the Offered Securities, such payment or distribution shall only be required to the extent it is permitted by applicable law.
(13) As used in the Indenture with respect to the Offered Securities and in the certificates evidencing the Offered Securities, all references to “premium” on the Offered Securities shall mean any amounts (other than accrued interest) payable upon the redemption of any Offered Security, or the repurchase of any Offered Security pursuant to the provisions set forth under the caption “Offer to Purchase Upon Change of Control Triggering Event” in the form of certificate evidencing the Offered Securities attached hereto as Exhibit 1, in excess of 100% of the principal amount of such Offered Security.
(14) The provisions of Section 3.9 of the Indenture shall not be applicable with respect to the Offered Securities and the Offered Securities shall not be entitled to the benefits of such Section 3.9.
(15) The following additional terms shall be applicable with respect to the Offered Securities:
| (a) | the phrase “due or to become due to such date of maturity” appearing in the 28^th^ and 29^th^ 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<br>such date of maturity or redemption, as the case may be,” |
|---|---|
| (b) | the Company shall not act as its own paying agent for purposes of Section 10.2 of the Indenture or for<br>purposes of the provisions set forth under the caption “Offer to Purchase Upon Change of Control Triggering Event” in the form of certificate evidencing the Offered Securities attached hereto as Exhibit 1; |
| --- | --- |
Annex I-3
| (c) | all references in the Indenture to the “Secretary” and any “Assistant Secretary”<br> |
|---|---|
| of the Company shall be deemed to include a reference to the Corporate Secretary and any Assistant Corporate Secretary, respectively, of the Company; and | |
| --- | |
| (d) | the phrase “acquires by sale or conveyance substantially all the assets” appearing in clause<br>(i) of Section 9.1 of the Indenture shall be deleted and replaced with the phrase “acquires by sale or conveyance all or substantially all the assets”. |
| --- | --- |
(16) The certificates evidencing the Offered Securities shall be in substantially the form attached hereto as Exhibit 1, it being understood that the certificate evidencing any Offered Security may be modified so that the signatures and/or trustee’s certificate of authentication appear on the same page as the principal amount of such Offered Security and that the format (but not the substance) of any such certificate may also be changed in such manner as any officer the Company may approve, such approval to be conclusively evidenced by the authentication of any such certificate by the Trustee.
(17) The Offered Securities shall have such additional terms and provisions as are set forth in the form of certificate evidencing the Offered Securities attached hereto as Exhibit 1, which terms and provisions are hereby incorporated by reference in and made a part of this Annex I and the Indenture as if set forth in full herein and therein.
(18) Only such Offered Securities as shall bear thereon a certificate of authentication substantially in the form attached as Exhibit 1 hereto, executed by the Trustee by the manual or electronic signature of one of its authorized officers, shall be entitled to the benefits of the Indenture or be valid or obligatory for any purpose.
Annex I-4
EXHIBIT 1
Form of Certificate Evidencing the Offered Securities
Exhibit 1-1
[Include the following legend (the “DTC Legend”) only in Global Securities] THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THEDEPOSITARY 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 WHOLEBY 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 SUCCESSORDEPOSITARY.
[Include the following legend (the “DTC Legend”) only in Global Securities] UNLESS THIS NOTE IS PRESENTED BYAN 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 OFCEDE & 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 OROTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
| No.<br> <br>CUSIP No. 962166 CC6<br><br><br>ISIN No. US962166CC62 | Principal Amount: $ ●,000,000 |
|---|
WEYERHAEUSER COMPANY
4.750% Note due 2026
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 Securities—Cede & Co.], or registered assigns, at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York, the principal sum of • Dollars ($●,000,000) on May 17, 2026, 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 15 and November 15 of each year (each, an “Interest Payment Date”), commencing November 15, 2023, and at final maturity on said principal sum at said office or agency, in like coin or currency, at the rate of 4.750% per annum from the Interest Payment Date next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a
Exhibit 1-1
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 this Note, in which case from May 17, 2023, 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 will be made against presentation of this Note at the office or agency of the Issuer maintained for such purpose in the Borough of Manhattan, The City of New York (and the offices or agencies of the Issuer maintained for such purpose in any such other locations, if any, as the Issuer may from time to time elect) or, 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 May 1 or November 1, whether or not a Business Day (each, a “Regular Record Date”), as the case may be, and before the following Interest Payment Date, this Note shall bear interest from such Interest Payment Date; provided, that if the Issuer shall default in the payment of interest due on such Interest Payment Date, then this Note shall bear interest from the next preceding Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for on this Note, from May 17, 2023; and provided, further, that, notwithstanding the foregoing provisions of this sentence, if no interest has been paid or duly provided for on this Note, then this Note shall bear interest from May 17, 2023. The interest so payable on any Interest Payment Date will, subject to certain exceptions provided in the Indenture referred to below, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date. Interest on this Note shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.
This Note is one of a duly authorized issue of Securities of the Issuer issued under and pursuant to an Indenture dated as of April 1, 1986 (the “Original Indenture”), as amended and supplemented by a First Supplemental Indenture thereto dated as of February 15, 1991 (the “First Supplemental Indenture”), a Second Supplemental Indenture thereto dated as of February 1, 1993 (the “Second Supplemental Indenture”), a Third Supplemental Indenture thereto dated as of October 22, 2001 (the “Third Supplemental Indenture”), a Fourth Supplemental Indenture thereto dated as of March 12, 2002 (the “Fourth Supplemental Indenture”) and a Fifth Supplemental Indenture thereto dated as of March 30, 2020 (the “Fifth Supplemental Indenture”; the Original Indenture, as amended and supplemented by the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and any other indentures supplemental thereto, is hereinafter called the “Indenture”), each between the Issuer and The Bank of New York Mellon Trust Company, N.A. (formerly known as The Bank of New York Trust Company, N.A.), as successor trustee (herein called the “Trustee,” which term includes any successor trustee under the Indenture) to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank and Chemical Bank), 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”).
Exhibit 1-2
The Issuer may redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the 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, less (b) interest accrued to the date of redemption, and
(2) 100% of the principal amount of the Notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the redemption date.
For purposes of the foregoing provisions related to optional redemption, the following definitions are applicable:
“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.
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Issuer in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Issuer after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 – TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the maturity date of the notes (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the maturity date of the notes on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
Exhibit 1-3
If on the third Business Day preceding the redemption date H.15 – TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the maturity date of the notes, as applicable. If there is no United States Treasury security maturing on the maturity date of the notes but there are two or more United States Treasury securities with a maturity date equally distant from the maturity date of the notes, one with a maturity date preceding the maturity date of the notes and one with a maturity date following the maturity date of the notes, the Issuer shall select the United States Treasury security with a maturity date preceding the maturity date of the notes. If there are two or more United States Treasury securities maturing on the maturity date of the notes or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Issuer’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error. The Trustee shall not be responsible for calculating the redemption price.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each holder of Notes to be redeemed.
In the case of a partial redemption, selection of the Notes for redemption will be made by lot or by such other method as is consistent with the applicable procedures of the Trustee. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.
Unless the Issuer defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.
Notwithstanding the provisions of Section 12.2 of the Indenture, any notice of redemption of the Notes need not set forth the redemption price but only the manner of calculation thereof. The Issuer will notify the Trustee of the redemption price promptly after the calculation thereof. The Trustee shall have no responsibility for such calculation.
Exhibit 1-4
In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof and accrued and unpaid interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series to be affected (voting as one class), evidenced as in the Indenture provided, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall, among other things, (i) extend the final maturity of any Security, or reduce the principal amount thereof or reduce the rate or extend the time of payment of any interest thereon, or reduce any amount payable on the redemption thereof, or make the principal thereof or the interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, or impair or affect the rights of any Holder to institute suit for the payment thereof, without the consent of the Holder of each Security so affected, or (ii) reduce the aforesaid percentage of Securities the Holders of which are required to consent to any such supplemental indenture without the consent of the Holder of each Security so affected. It is also provided in the Indenture that, with respect to certain defaults or Events of Default, prior to any declaration accelerating the maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series (or, in the case of certain defaults or Events of Default, all or certain series of the Securities) may on behalf of the Holders of all the Securities of such series (or all or certain series of the Securities, as the case may be) waive any such past default or Event of Default and its consequences. The preceding sentence shall not, however, apply to a default or Event of Default in respect of the payment of the principal of or premium, if any, or interest on any of the Securities or a default or Event of Default in respect of a covenant or provision of the Indenture which cannot be modified or amended without the consent of the Holder of each Security affected. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor or on registration of transfer hereof, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the principal of and premium, if any, and interest on this Note in the manner, at the respective times, at the rate and in the coin or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. 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*.*
Exhibit 1-5
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, a new Note or Notes of authorized denominations for an equal aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge that may be imposed in connection therewith.
The Issuer, the Trustee and any authorized agent of the Issuer or the Trustee may deem and treat the registered Holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment of, or on account of, the principal hereof and premium, if any, and, subject to the provisions of the first paragraph hereof, interest hereon and for all other purposes, and neither the Issuer nor the Trustee nor any authorized agent of the Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the Issuer in the Indenture or in any 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 and are not otherwise defined herein 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 or electronic signature of an authorized signatory of the Trustee.
Offer to Purchase Upon Change of Control Triggering Event
If a Change of Control Triggering Event occurs with respect to the Notes, the Issuer will make an offer (the “Change of Control Offer”) to each Holder of Notes to repurchase (at such Holder’s option) all or any part (in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof, provided that any portion of a Note not repurchased must be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof) of such Holder’s Notes on the terms described below. In the Change of Control Offer, the Issuer will offer payment in cash equal to 101% of the principal amount of the Notes to be repurchased, plus accrued and unpaid
Exhibit 1-6
interest, if any, on such Notes (or portions thereof) to be repurchased to, but excluding, the date of repurchase (the “Change of Control Payment”); provided that, notwithstanding the foregoing, payments of interest on the Notes that are due and payable on any dates falling on or prior to such a date of repurchase will be payable to the Holders of those Notes registered as such at the close of business on the relevant record dates in accordance with their terms and the terms of the Indenture. Within 30 days following any Change of Control Triggering Event with respect to the Notes, the Issuer will mail (or otherwise transmit in accordance with applicable procedures of DTC) (or cause to be mailed (or otherwise transmitted in accordance with applicable procedures of DTC)) a notice (the “Change of Control Purchase Notice”) to all Holders of Notes (with a copy to the Trustee) describing the transaction or transactions constituting the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in such notice, which date will be a business day no earlier than 10 days and no later than 60 days after the date such notice is mailed (or otherwise transmitted in accordance with applicable procedures of DTC) (the “Change of Control Payment Date”).
Holders electing to have a Note or portion thereof repurchased pursuant to a Change of Control Offer will be required to surrender the Note (which, in the case of Notes in book-entry form, may be by book-entry transfer) to the Trustee (or to such other agent as may be appointed by the Issuer for such purpose) at the address specified in the applicable Change of Control Purchase Notice prior to the close of business on the business day immediately preceding the applicable Change of Control Payment Date and to comply with other procedures set forth in such Change of Control Purchase Notice. As used in the preceding sentence and in the last sentence of the preceding paragraph, the term “business day” means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which commercial banks are authorized or required by law, regulation or executive order to close in The City of New York.
On any Change of Control Payment Date, the Issuer will, to the extent lawful:
| (1) | accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;<br> |
|---|---|
| (2) | deposit with the Trustee (if the Trustee is acting as paying agent for the Notes) or any other duly appointed<br>paying agent for the Notes an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and |
| --- | --- |
| (3) | deliver the repurchased Notes or cause the repurchased Notes to be delivered to the Trustee for cancellation,<br>accompanied by an Officers’ Certificate stating the aggregate principal amount of repurchased Notes and that all conditions precedent provided for in the Notes and the Indenture relating to such Change of Control Offer and the repurchase of<br>Notes by the Issuer pursuant thereto have been complied with. |
| --- | --- |
Interest on Notes and portions of Notes duly tendered for repurchase pursuant to a Change of Control Offer will cease to accrue on and after the applicable Change of Control Payment Date, unless the Issuer shall have failed to accept such Notes and such portions of Notes for payment, failed to deposit the total Change of Control Payment in respect thereof or failed to deliver the Officers’ Certificate, all as required by, and in accordance with, the immediately preceding sentence.
Exhibit 1-7
The Issuer will agree to promptly pay, or will cause the Trustee (if the Trustee is acting as paying agent for the Notes) or another duly appointed paying agent for the Notes to promptly pay (by application of funds deposited by the Issuer), to each Holder of Notes (or portions thereof) duly tendered and accepted for payment by the Issuer pursuant to a Change of Control Offer for the Notes, the Change of Control Payment for such Notes, and the Issuer will cause the Trustee to promptly authenticate and mail (or deliver by book entry transfer, as applicable) to each such Holder a new Note equal in principal amount to the unpurchased portion, if any, of the Notes surrendered by such Holder; provided that each such new Note will be in a principal amount of $2,000 or an integral multiple of $1,000 in excess thereof. The Issuer shall, or shall cause the Trustee to, promptly mail (or cause to be delivered by book entry transfer, as applicable) to the Holders thereof any Notes not so accepted for payment by the Issuer.
The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes, the Issuer shall comply with those securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions of the Notes by virtue of such conflict.
The Issuer will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the time and otherwise in compliance with the requirements for an offer made by the Issuer and the third party purchases all Notes properly tendered under its offer and delivers the repurchased Notes or causes the repurchased Notes to be delivered to the Trustee for cancellation on the applicable Change of Control Payment Date. In addition, the Issuer will not repurchase any Notes pursuant to a Change of Control Offer if there has occurred and is continuing on the applicable Change of Control Payment Date an Event of Default under the Indenture (other than an Event of Default resulting from the Issuer’s failure to comply with any of the provisions of the Notes or the Indenture relating to such Change of Control Offer or the repurchase of Notes pursuant thereto, including, without limitation, any default in payment of the Change of Control Payment), including Events of Default arising with respect to other series of Securities outstanding under the Indenture.
The foregoing Change of Control provisions of the Notes shall cease to be applicable (and any failure of the Issuer to comply therewith shall not constitute an Event of Default) if (i) the Indenture shall have ceased to be of further effect with respect to the Notes pursuant to Section 10.1(A) of the Indenture (as used in this paragraph, “satisfaction and discharge”), or (ii) the Issuer shall be deemed to have paid and discharged the entire indebtedness on all of the Notes pursuant to Section 10.1(B) of the Indenture (as used in this paragraph, “defeasance”) (it being understood that, in addition to the other conditions to defeasance set forth in the Indenture, any such defeasance shall not be effective until the 121st day after the date of deposit referred to in subparagraph (a) of Section 10.1(B) of the Indenture), and, in the case of both clause (i) and (ii) of this sentence, the Issuer shall have satisfied the conditions set forth in the Indenture to
Exhibit 1-8
such satisfaction and discharge or such defeasance, as the case may be, and (without limitation to the foregoing) shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel (each of which comply with Section 11.5 of the Indenture), each to the effect that all conditions precedent to such satisfaction and discharge or defeasance, as the case may be, provided for in the Indenture have been complied with.
For purposes of the provisions set forth under this caption “Offer to Purchase Upon Change of Control Triggering Event,” the following terms have the respective meanings specified below:
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated) in the equity of such Person (including, without limitation, (i) with respect to a corporation, common stock, preferred stock and any other capital stock, (ii) with respect to a partnership, partnership interests (whether general or limited), and (iii) with respect to a limited liability company, limited liability company interests).
“Change of Control” means the occurrence of any of the following: (a) the consummation of any transaction (including, without limitation, any merger or consolidation) resulting in any “person” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than the Issuer or any of its subsidiaries) becoming the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Issuer’s outstanding Voting Stock or other Voting Stock into which the Issuer’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares or (b) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one transaction or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its subsidiaries, taken as a whole, to one or more Persons (other than the Issuer or any of its subsidiaries). Notwithstanding the foregoing, a transaction will not be deemed to be a Change of Control if (1) the Issuer becomes a direct or indirect wholly-owned subsidiary of a holding company and (2)(y) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Issuer’s Voting Stock immediately prior to that transaction or (z) immediately following that transaction no “person” (as that term is used in Section 13(d)(3) of the Exchange Act), other than a holding company satisfying the requirements of this sentence, is the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of such holding company, measured by voting power rather than number of shares. As used in this paragraph, the term “subsidiary” means, with respect to any Person (the “Parent”), any other Person at least a majority of whose outstanding Voting Stock, measured by voting power rather than number of shares, is owned, directly or indirectly, at the date of determination by the Parent and/or one or more other subsidiaries of the Parent.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a Rating Event. The Trustee shall not be charged with monitoring whether a Change of Control Triggering Event has occurred.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor thereto.
Exhibit 1-9
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, and the equivalent investment grade credit rating from any replacement Rating Agency or Rating Agencies selected by the Issuer.
“Moody’s” means Moody’s Investors Service, Inc.
“Rating Agencies” means (a) each of Moody’s and S&P; and (b) if either of Moody’s or S&P ceases to rate the Notes or fails to make a rating of the Notes publicly available for reasons outside of the Issuer’s control, a “nationally recognized statistical rating organization” (within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act) selected by the Issuer (as certified by a Board Resolution delivered to the Trustee) as a replacement for Moody’s or S&P, or both of them, as the case may be.
“Rating Event” means the rating on the Notes is lowered by each of the Rating Agencies and the Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day within the 60-day period (which 60-day period shall be extended so long as the rating of the Notes is under publicly announced consideration for a possible downgrade by either of the Rating Agencies) after the earlier of (a) the occurrence of a Change of Control and (b) public notice of the occurrence of a Change of Control or the Issuer’s intention to effect a Change of Control; provided, however, that a Rating Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of “Change of Control Triggering Event”) if each Rating Agency making the reduction in rating to which this definition would otherwise apply does not announce or publicly confirm or inform the Issuer in writing that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event). The Trustee shall not be responsible for monitoring the ratings of the Notes nor shall it be charged with knowledge of such ratings. The Trustee shall not be charged with monitoring whether a Rating Event has occurred.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock” means, with respect to any specified “person” (as that term is used in Section 13(d)(3) of the Exchange Act) as of any date, any Capital Stock of such person that is at the time entitled to vote generally in the election of the board of directors of such person or, if such person is not a corporation, any governing body thereof performing a similar function.
As used under this caption “Offer to Purchase Upon Change of Control Triggering Event,” all references to sections of the Exchange Act and to rules and regulations under the Exchange Act shall include any successor provisions thereto.
Exhibit 1-10
For purposes of clarity, the Issuer confirms that (1) the provisions set forth under this caption “Offer to Purchase Upon Change of Control Triggering Event” constitute covenants of the Issuer under the Indenture in respect of, and solely for the benefit of the Holders of, the Notes, (2) for purposes of Section 5.1(d), Section 5.10, Section 8.2 and any other applicable provisions of the Indenture, the Notes shall be deemed to be the only series of Securities affected by such covenants or by any default in the performance, or breach, of any such covenants or any default or Event of Default resulting therefrom or by any change therein or amendment thereto or waiver thereof and, without limitation to the foregoing, any such default or Event of Default shall be deemed to be a default or Event of Default, as the case may be, only with respect to the Notes, (3) such covenants shall constitute a “right of repayment at the option of the Securityholder” for purposes of Section 8.2 of the Indenture and, without limitation to the foregoing, no supplemental indenture entered into pursuant to Article Eight of the Indenture shall reduce the amount payable in respect of, or extend the time for payment of, any Notes pursuant to such covenants without the consent of the Holder of each Note so affected and (4) any failure by the Issuer to pay all or any part of the Change of Control Payment as and when required pursuant to such covenants shall constitute an Event of Default with respect to the Notes under Section 5.1(b) of the Indenture.
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Exhibit 1-11
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.
[SEAL]
| WEYERHAEUSER COMPANY | |
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| By: | |
| Name: | |
| Title: | |
| Company Name | |
| --- | |
| 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.
Dated:
| THE BANK OF NEW YORK MELLON<br><br><br>TRUST COMPANY, N.A., as Trustee | |
|---|---|
| By: | |
| Authorized Signatory |
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 and not as tenants in common | Under Uniform Gifts to Minors | ||
| Act | |||
| (State) |
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
| PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE | |
|---|---|
| the within security and all rights thereunder, hereby irrevocably constituting and<br>appointing | |
| Attorney | |
| to transfer said security on the books of the Issuer with full power of substitution<br>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.
EX-5.1
Exhibit 5.1
May 17, 2023
Weyerhaeuser Company
4.750% Notes Due 2026
Ladies and Gentlemen:
We have acted as counsel for Weyerhaeuser Company, a Washington corporation (the “Company”), in connection with the public offering and sale by the Company of $750,000,000 aggregate principal amount of 4.750% Notes due 2026 (the “Notes”), to be issued under an indenture dated as of April 1, 1986 (the “Base Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Trustee”), as amended and supplemented by a first supplemental indenture dated as of February 15, 1991, between the Company and the Trustee (the “First Supplemental Indenture”), a second supplemental indenture dated as of February 1, 1993, between the Company and the Trustee (the “Second Supplemental Indenture”), a third supplemental indenture dated as of October 22, 2001, between the Company and the Trustee (the “Third Supplemental Indenture”), a fourth supplemental indenture dated as of March 12, 2002, between the Company and the Trustee (the “Fourth Supplemental Indenture”), a fifth supplemental indenture dated as of March 30, 2020, between the Company and the Trustee (the “Fifth Supplemental Indenture”), and an officers’ certificate of the Company dated as of May 17, 2023, establishing the terms of the Notes (the “Officers’ Certificate” and, together with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth Supplemental Indenture, the “Indenture”).
In that connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of such documents, corporate records and other instruments as we have deemed necessary or appropriate for the purposes of this opinion, including (a) the Indenture and the form of Note contained therein and (b) the Registration Statement on Form S-3 (Registration No. 333-256995) filed with the Securities and Exchange Commission (the “Commission”) on June 10, 2021 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act of various securities of the Company.
In rendering this opinion, we have assumed, with your consent and without independent investigation or verification, the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as duplicates or copies. We also have assumed, with your consent, that the Indenture has been duly authorized, executed and delivered by, and represents a legal, valid and binding obligation of, the Trustee and that the Notes will conform to the form of note included in the Indenture.
Based on the foregoing and subject to the qualifications set forth herein, we are of opinion as follows:
1. Assuming that the Notes have been duly authorized by the Company, the Notes, when executed and authenticated in accordance with the provisions of the Indenture and delivered and paid for as contemplated in the Registration Statement, will constitute legal, valid and binding obligations of the Company (subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, regardless of whether considered in a proceeding in equity or at law).
We are admitted to practice in the State of New York, and we express no opinion as to matters governed by any laws other than the laws of the State of New York. In particular, we do not purport to pass on any matter governed by the laws of the State of Washington. For purposes of our opinion, we have assumed that (i) the Company has been duly incorporated and is a validly existing corporation under the laws of the State of Washington and (ii) the Indenture and the Notes have been duly authorized, executed and delivered by the Company. With respect to all matters of the laws of the State of Washington, we note that you are being provided with the opinion, dated the date hereof, of Jose Quintana, Esq., Senior Legal Counsel of the Company.
We hereby consent to the filing of this opinion with the Commission as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof and incorporated by reference into the Registration Statement. We also consent to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement constituting part of the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ Cravath, Swaine & Moore LLP
Weyerhaeuser Company
220 Occidental Avenue South
Seattle, WA 98104
EX-5.2
Exhibit 5.2
May 17, 2023
Weyerhaeuser Company
220 Occidental Avenue South
Seattle, WA 98104
Ladies and Gentlemen:
I have acted as counsel for Weyerhaeuser Company, a Washington corporation (the “Company”), in connection with (i) the review of a registration statement on Form S-3 (Registration No. 333-256995) filed with the Securities and Exchange Commission (the “Commission”) on June 10, 2021 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), and (ii) the preparation and review of the Prospectus Supplement, dated May 15, 2023, of the Company (the “Prospectus Supplement”), filed with the Commission and relating to the issuance by the Company of $750,000,000 aggregate principal amount of 4.750% Notes due 2026 (the “Notes”), in accordance with the underwriting agreement, dated May 15, 2023, among Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and Scotia Capital (USA) Inc., as representatives of the several underwriters listed in Schedule I thereto, and the Company.
In such capacity and in connection with the opinions expressed herein, I have examined originals, or copies certified or otherwise identified to my satisfaction, of such documents, corporate records and other instruments as I have deemed necessary or appropriate for the purpose of this opinion, including, without limitation, the (1) Registration Statement and (2) the indenture dated as of April 1, 1986 (the “Base Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee (the “Trustee”), as amended and supplemented by a first supplemental indenture dated as of February 15, 1991, between the Company and the Trustee (the “First Supplemental Indenture”), a second supplemental indenture dated as of February 1, 1993, between the Company and the Trustee (the “Second Supplemental Indenture”), a third supplemental indenture dated as of October 22, 2001, between the Company and the Trustee (the “Third Supplemental Indenture”), a fourth supplemental indenture dated as of March 12, 2002, between the Company and the Trustee (the “Fourth Supplemental Indenture”), a fifth supplemental indenture dated as of March 30, 2020, between the Company and the Trustee (the “Fifth Supplemental Indenture”), and the Officers’ Certificate of the Company, dated as of May 17, 2023, establishing the terms of the Notes (the “Officers’ Certificate” and, together with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture and the Fifth Supplemental Indenture, the “Indenture”).
Based upon the foregoing, I am of opinion that the Indenture and the Notes have been duly authorized, executed and delivered by the Company.
I am admitted to practice only in the State of Washington, and accordingly, do not express any opinion herein concerning any law other than the laws of the State of Washington and the Federal law of the United States of America, each as currently in effect.
I hereby consent to the filing of this opinion with the Commission as Exhibit 5.2 to the Current Report on Form 8-K dated the date hereof and incorporated by reference into the Registration Statement. I also consent to the reference to my name under the caption “Legal Matters” in the Prospectus Supplement constituting part of the Registration Statement. In giving this consent, I do not hereby admit that I am included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.
[Signature page follows]
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| Very truly yours, |
|---|
| /s/ Jose Quintana, Esq. |
| Jose Quintana, Esq. |
| Senior Legal Counsel |
[Signature Page to WY Ex. 5.2 Opinion]
EX-8.1
Exhibit 8.1
May 17, 2023
Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Morgan Stanley & Co. LLC
1585 Broadway
New York, New York 10036
MUFG Securities Americas Inc.
1221 Avenue of the Americas, 6th Floor
New York, New York 10020
Scotia Capital (USA) Inc.
250 Vesey Street
New York, New York 10281
As Representatives of the Several Underwriters
| Re: | Weyerhaeuser Company $750,000,000 4.750% Notes Due 2026 |
|---|
Ladies and Gentlemen:
We have acted as special tax counsel to Weyerhaeuser Company, a Washington corporation (the “Company”), in connection with the proposed offer and sale of $750,000,000 aggregate principal amount of its 4.750% Notes due 2026 pursuant to the Underwriting Agreement dated May 15, 2023 (the “Underwriting Agreement”), by and among the Company and Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, MUFG Securities Americas Inc. and Scotia Capital (USA) Inc., as representatives of the several underwriters named in Schedule I thereto (the “Underwriters”). This opinion is being furnished to you pursuant to Section 5(c) of the Underwriting Agreement. Capitalized terms employed but not otherwise defined herein shall have the meanings assigned to them in the Underwriting Agreement.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
MUFG Securities Americas Inc.
Scotia Capital (USA) Inc.
Page 2
I. Basis for Opinion
The opinion set forth in this letter is based on the application of relevant provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury regulations thereunder (including proposed and temporary Treasury regulations), and interpretations of the foregoing as expressed in court decisions, applicable legislative history, and administrative rulings and practices of the Internal Revenue Service (the “IRS”) (including its practices and policies endorsed in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling), all as of the date hereof. These provisions and interpretations are subject to change, which changes might have retroactive effect and might affect our conclusions stated herein. Our opinion does not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction, or of a contrary position taken by the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard, although we believe that our opinion set forth herein will be sustained if challenged, an opinion of counsel with respect to an issue is not binding on the IRS or the courts, and we do not guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position asserted by the IRS.
In rendering the following opinion, we have examined such statutes, regulations, records, agreements, certificates and other documents as we have considered necessary or appropriate as a basis for the opinion, including, but not limited to: (1) the Restated Articles of Incorporation of the Company dated April 18, 2011, as amended through the date hereof; (2) certain organizational and corporate governance documents of the Company; (3) the Prospectus dated June 10, 2021; (4) the Prospectus Supplement dated May 15, 2023; (5) the Amended and Restated Certificate of Incorporation of Weyerhaeuser Timber Holdings, Inc., a Delaware corporation, the common stock of which is owned by the Company (“WTHI”), dated December 20, 2021, as amended through the date hereof; and (6) certain organizational and corporate governance documents of WTHI (those documents referred to in clauses (1) through (6), the “Reviewed Documents”).
The opinion set forth in this letter is also premised on the written representations of the Company contained in a letter to us dated as of the date hereof and in a letter dated as of March 9, 2022, each of which we have discussed with the Company; and the written representations of WTHI, contained in a letter to us dated as of the date hereof and in a letter dated as of March 9, 2022, each of which we have discussed with WTHI (the “Representation Letters”) and copies of which are attached hereto. For purposes of rendering our opinion, we have not made, and will not make, an independent investigation or audit of the facts set forth in the Reviewed Documents or the Representation Letters, except as necessary to determine that the representations are reasonable. We consequently have relied upon the representations and statements of the Company and WTHI as described in the Reviewed Documents and the Representation Letters, and assumed that the information presented in such documents or otherwise furnished to us is accurate and complete in all material respects relevant to our opinion. Any statement herein to
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
MUFG Securities Americas Inc.
Scotia Capital (USA) Inc.
Page 3
the effect that we have relied upon, or assumed the truth, correctness or completeness of, any representations, warranties or statements in any documents (and any similar statements herein) means that we have relied upon or assumed the truth, correctness or completeness of such representations, warranties or other statements, as the case may be, insofar as they relate to factual matters but not as to legal conclusions.
In this regard, we have assumed, with your consent, the following:
(i) (A) all of the representations and statements set forth in the Reviewed Documents and the Representation Letters are true, correct, and complete as of the date hereof, (B) any representation or statement in the Reviewed Documents and the Representation Letters made as a belief, made “to the knowledge of” or similarly qualified is true, correct and complete as of the date hereof, without such qualification, (C) each agreement described in the Reviewed Documents is valid and binding in accordance with its terms, and (D) each of the obligations of the Company and its subsidiaries, as described in the Reviewed Documents, has been or will be performed or satisfied in accordance with its terms;
(ii) all signatures are genuine, all documents have been properly and duly executed, all documents submitted to us as originals are authentic, all documents submitted to us as copies conform to their respective originals, and the originals from which any copies were made are authentic;
(iii) any documents as to which we have reviewed only a form were or will be duly executed without material changes from the form reviewed by us; and
(iv) from and after the date of this letter, the Company will utilize all appropriate “savings provisions” (including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code, the provision allowing for the disposal of assets within thirty days after the close of a calendar quarter included in Section 856(c)(4) of the Code (flush language), and all available deficiency dividend procedures) available to the Company under the Code in order to correct any violations of the applicable REIT qualification requirements of Sections 856 and 857 of the Code, to the full extent the remedies under such provisions are available.
Any material variation or difference in the facts from those set forth in the documents that we have reviewed and upon which we have relied (including, in particular, the Representation Letters) may adversely affect our conclusions stated herein.
| II. | Opinion |
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Based upon and subject to the assumptions and qualifications set forth herein, including, without limitation, the discussion in the succeeding paragraphs, we are of the opinion that the Company has qualified to be taxed as a real estate investment trust (a “REIT”) pursuant to Sections 856 through 860 of the Code and the Treasury regulations issued thereunder for its taxable years ended December 31, 2020 through December 31, 2022, and its organization and current and proposed method of operation described in the Reviewed Documents will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code.
Goldman Sachs & Co. LLC
J.P. Morgan Securities LLC
Morgan Stanley & Co. LLC
MUFG Securities Americas Inc.
Scotia Capital (USA) Inc.
Page 4
The Company’s qualification and taxation as a REIT depends upon the Company’s ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to its shareholders, and the diversity of its share ownership, and upon the Company utilizing all appropriate “savings provisions” (including the provisions of Sections 856(c)(6), 856(c)(7), and 856(g) of the Code, the provision allowing for the disposal of assets within thirty days after the close of a calendar quarter included in Section 856(c)(4) of the Code (flush language), and all available deficiency dividend procedures) available to the Company under the Code to correct violations of specified REIT qualification requirements of Sections 856 and 857 of the Code. We will not review the compliance of the Company with these requirements on a continuing basis. No assurance can be or is given that the actual results of the Company’s operations, the sources of its income, the nature of its assets, the level of its distributions to its shareholders and the diversity of its share ownership for the current or any future taxable years will satisfy the requirements under the Code for qualification and taxation as a REIT.
We assume no obligation to advise you of any new developments in the application or interpretation of the U.S. federal income tax laws subsequent to the date of this opinion letter, and we are not undertaking to update this opinion letter.
This opinion letter addresses only the specific U.S. federal income tax matters set forth above and does not address any other U.S. federal, state, local or foreign tax issues.
We hereby consent to the filing of this opinion as Exhibit 8.1 to the Company’s Current Report on Form 8-K filed on May 17, 2023. We also consent to the use of our name in the prospectus which forms a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission.
| Very truly yours, |
|---|
| /s/ Covington & Burling LLP |