<PAGE>
As filed with the Securities and Exchange Commission on April 20, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
POTLATCH CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
Delaware 2621 82-0156045
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
----------------
601 West Riverside Avenue, Suite 1100, Spokane, WA 99201, (509) 835-1500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------
Ralph M. Davisson, Esq.
Vice President and General Counsel
Potlatch Corporation
601 West Riverside Avenue, Suite 1100
Spokane, WA 99201
(509) 835-1500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------
with a copy to:
Blair W. White, Esq.
David R. Lamarre, Esq.
Pillsbury Madison & Sutro LLP
235 Montgomery Street
San Francisco, CA 94104
(415) 983-1000
----------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
Calculation of Registration Fee
================================================================================
<TABLE>
<CAPTION>
Proposed
maximum
Proposed aggregate Amount of
Title of each class of Amount to be maximum offering offering registration
securities to be registered registered price(1) price fee(1)(2)
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6.25% Notes due March 15, 2002.. $100,000,000 100% $100,000,000 $27,800
- -------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated in accordance with Rule 457 solely for the purpose of calculating
the registration fee.
(2) Calculated in accordance with Rule 457(f) under the Securities Act of 1933.
----------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until this Registration Statement
shall become effective on such date as the SEC, acting pursuant to said Section
8(a), may determine.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED APRIL , 1999
PROSPECTUS
Potlatch Corporation
Exchange Offer for
$100,000,000 6.25% Notes due March 15, 2002
----------------
Terms of the Exchange Offer
. Potlatch is offering to exchange $100,000,000 total principal amount of
its 6.25% Notes due March 15, 2002, which have been registered under the
Securities Act, for $100,000,000 total principal amount of its 6.25%
Notes due March 15, 2002.
. The exchange offer expires at 5:00 p.m., New York City time, on ,
1999, unless extended.
. All original notes that are validly tendered and not validly withdrawn
will be exchanged.
. Tenders of original notes may be withdrawn at any time prior to the
expiration of the exchange offer.
. The exchange offer is not subject to any condition, other than that the
exchange offer not violate applicable law or any applicable
interpretation of the staff of the Securities and Exchange Commission
and that no governmental authority has suspended or threatened to
suspend the registration of the exchange offer.
. Potlatch will not receive any proceeds from the exchange offer.
. The exchange of notes will not be a taxable exchange for U.S. federal
income tax purposes.
. The terms of the exchange notes and the original notes are substantially
identical, except for certain transfer restrictions and registration
rights relating to the original notes.
. There is no existing market for the exchange notes and Potlatch does not
intend to apply for their listing on any securities exchange.
----------------
These securities have not been approved or disapproved by the Securities and
Exchange Commission or any state securities commission nor has the Securities
and Exchange Commission or any state securities commission passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is
a criminal offense.
The information in this prospectus is not complete and may be changed.
Potlatch may not sell these securities until the registration statement filed
with the Securities and Exchange Commission is effective. This prospectus is
not an offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not permitted.
The date of this prospectus is , 1999.
<PAGE>
Each broker-dealer that receives exchange notes for its own account pursuant
to the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such exchange notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act. This prospectus, as it may be amended or supplemented from
time to time, may be used by a broker-dealer in connection with resales of
exchange notes received in exchange for original notes where the original notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. Potlatch has agreed that, starting on the Expiration
Date (as defined below) and ending on the close of business on the 180th day
following the Expiration Date, it will make this prospectus available to
broker-dealers for use in connection with any such resale. See "Plan of
Distribution."
You should rely on the information contained, or incorporated by reference,
in this prospectus. Potlatch has not authorized anyone to provide you with
different information. Potlatch is not making an offer of these securities in
any state where the offer is not permitted. You should not assume that the
information contained in this prospectus is accurate as of any date other than
the date on the front cover of this prospectus.
In this prospectus, "Potlatch," "we," "us," and "our" refer to Potlatch
Corporation.
TABLE OF CONTENTS
<TABLE>
<S> <C>
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS............................. 3
THE COMPANY................................................................. 3
RECENT DEVELOPMENTS......................................................... 4
EXCHANGE OFFER.............................................................. 5
USE OF PROCEEDS............................................................. 12
SELECTED HISTORICAL FINANCIAL INFORMATION................................... 13
RATIO OF EARNINGS TO FIXED CHARGES.......................................... 14
DESCRIPTION OF THE EXCHANGE NOTES........................................... 14
CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES.............................. 23
PLAN OF DISTRIBUTION........................................................ 25
WHERE YOU CAN FIND MORE INFORMATION......................................... 26
INCORPORATION OF DOCUMENTS BY REFERENCE..................................... 26
LEGAL MATTERS............................................................... 27
EXPERTS..................................................................... 27
</TABLE>
2
<PAGE>
DISCLOSURE REGARDING FORWARD LOOKING STATEMENTS
This prospectus contains, in addition to historical information, certain
forward-looking statements, that involve risks and uncertainties. These
statements relate to our future plans, objectives, expectations and intentions,
and the assumptions underlying or relating to any of these statements. These
statements may be identified by the use of words such as "expects,"
"anticipates," "intends," and "plans" and similar expressions. Potlatch's
actual results could differ materially from those anticipated in these forward-
looking statements as a result of many factors. Potlatch's actual results of
operations could differ materially from those expressed or implied by forward-
looking statements. Factors that could cause or contribute to such differences
include, but are not limited to, changes in the United States and international
economies; changes in worldwide demand for Potlatch's products; changes in
worldwide production and production capacity in the forest products industry;
competitive pricing pressures for Potlatch's products; unanticipated
manufacturing disruptions; the impact of Year 2000 issues; and changes in raw
material, energy and other costs.
THE COMPANY
Potlatch is an integrated forest products company with substantial timber
resources. It is engaged principally in the growing and harvesting of timber
and the manufacture and sale of wood products, printing papers and pulp and
paper products. Its timberlands and all of its manufacturing facilities are
located within the continental United States.
Fiber Resources. The principal source of raw material used in Potlatch's
operations is wood fiber obtained from its own timberlands and purchased on the
open market. Potlatch owns in fee approximately 1.5 million acres of
timberland: 500,000 acres in Arkansas, 671,000 acres in Idaho and 339,000 acres
in Minnesota. Potlatch also owns and is developing 22,000 acres in Oregon as a
hybrid poplar plantation. Potlatch's fee lands provided approximately 69
percent of its sawlogs and plywood logs in 1998 and an average of 69 percent
over the past five years. Additional logs are obtained primarily from private
landowners and from federal, state and local governments.
Wood Products. Potlatch manufactures and markets oriented strand board,
plywood, particleboard and lumber. These products are sold through Potlatch's
sales offices primarily to wholesalers for nationwide distribution. To produce
these solid wood products, Potlatch owns and operates several manufacturing
facilities in Arkansas, Idaho and Minnesota.
Printing Papers. Potlatch produces coated printing papers at two facilities
in Minnesota. Pulp for these paper mills is supplied primarily by Potlatch's
bleached kraft pulp mill in Minnesota and secondarily by purchases of market
pulp, including recycled pulp. Coated printing papers are used primarily for
annual reports, showroom catalogs, art reproductions and high-quality
advertising. Coated printing papers are sold principally to paper merchants for
distribution.
Pulp and Paper. Potlatch produces and markets bleached kraft pulp and
paperboard and tissue products. Potlatch is a major producer of bleached kraft
paperboard in the United States. Bleached kraft paperboard manufactured by
Potlatch is used primarily for the packaging of milk and other foods,
pharmaceuticals, toiletries, and other consumable goods as well as paper cups
and paper plates. Potlatch is a leading North American producer of private
label household tissue products. Household tissue products (facial and bathroom
tissues, towels and napkins) are packaged to order for grocery and drugstore
chains and cooperative buying organizations. These products are sold to
consumers under customer brand names and compete with nationally advertised and
other private label brands. Potlatch does not consider itself among the larger
national manufacturers of market pulp or of any of its other paper products.
3
<PAGE>
The following is a tabulation of selected business segment information for
each of the past three years:
<TABLE>
<CAPTION>
Year Ended December 31,
----------------------------------
1996 1997 1998
---------- ---------- ----------
(Dollars in thousands)
<S> <C> <C> <C>
Segment Sales:
Wood products:
Oriented strand board.................. $ 150,545 $ 106,807 $ 171,464
Lumber................................. 201,022 247,232 225,668
Plywood................................ 57,468 64,511 54,561
Particleboard.......................... 12,087 12,875 14,494
Logs, chips, etc....................... 111,118 119,435 124,536
---------- ---------- ----------
532,240 550,860 590,723
---------- ---------- ----------
Printing papers.......................... 441,037 429,217 406,277
---------- ---------- ----------
Pulp and paper:
Pulp................................... 12,346 11,183 12,467
Paperboard............................. 404,136 420,054 390,708
Tissue................................. 222,169 218,310 235,799
---------- ---------- ----------
638,651 649,547 638,974
---------- ---------- ----------
1,611,928 1,629,624 1,635,974
Elimination of intersegment sales......... (57,479) (60,754) (70,096)
---------- ---------- ----------
Total consolidated net sales.............. $1,554,449 $1,568,870 $1,565,878
========== ========== ==========
Operating Income:
Wood products.......................... $ 68,056 $ 47,674 $ 73,811
Printing papers........................ 48,570 33,358 14,204
Pulp and paper......................... 40,867 51,043 53,394
---------- ---------- ----------
157,493 132,075 141,409
Corporate Items:
Administration expense................. (30,752) (31,385) (37,247)
Interest expense....................... (43,869) (46,124) (49,744)
Other, net............................. 3,454 69 3,757
---------- ---------- ----------
Consolidated earnings before taxes on
income................................... $ 86,326 $ 54,635 $ 58,175
========== ========== ==========
</TABLE>
Potlatch was incorporated under the laws of Maine in 1903 and was reorganized
in 1955 as a Delaware corporation. Potlatch's principal executive offices are
located at 601 West Riverside Avenue, Suite 1100, Spokane, Washington 99201,
and its telephone number is (509) 835-1500.
RECENT DEVELOPMENTS
In February 1998, Potlatch entered into an agreement with Anderson-Tully
Company under which Potlatch was to contribute all of its approximately 500,000
acres of primarily softwood timberland in Arkansas to a newly formed real
estate investment trust ("REIT") and the REIT was to acquire Anderson-Tully
Company using the proceeds of a planned initial public offering. These
transactions were not completed due to poor capital market conditions for the
proposed offering. On March 31, 1999, Potlatch and Anderson-Tully Company
announced the mutual termination of their February 1998 agreement.
On April 2, 1999, the Idaho Supreme Court vacated the $95 million judgment
awarded to Potlatch in 1997 in its lawsuit against Beloit Corporation for
damages resulting from defects associated with a pulp washer system that was
installed in Potlatch's Lewiston, Idaho, pulp mill. The case was remanded to
the District Court
4
<PAGE>
of the State of Idaho, Nez Perce County, for a new trial. No trial date has
been set. In its ruling, the Idaho Supreme Court did not decide the merits of
Potlatch's case. Potlatch intends to continue to pursue its claims against
Beloit Corporation.
EXCHANGE OFFER
Purpose of the Exchange Offer
Potlatch sold $100,000,000 aggregate principal amount of its 6.25% Notes due
March 15, 2002 in a private placement on March 15, 1999. In connection with
the sale, Potlatch entered into a registration rights agreement on March 15,
1999 with Salomon Smith Barney Inc., the initial purchaser of these notes, for
the benefit of the holders from time to time (including the initial purchaser)
of the original 6.25% Notes due March 15, 2002 (the "Original Notes"). In the
registration rights agreement, Potlatch agreed, for the benefit of the holders
of the Original Notes, to file with the SEC a registration statement with
respect to an issue of notes identical in all material respects to the
Original Notes (the "Exchange Notes") and to use its reasonable efforts to
cause that registration statement to be declared effective under the
Securities Act within 180 calendar days after March 15, 1999. Potlatch has
filed the registration statement of which this prospectus is a part for the
purpose of fulfilling its obligations under its registration rights agreement.
A copy of the registration rights agreement has been filed as an exhibit to
the registration statement of which this prospectus is a part.
Promptly after the registration statement of which this prospectus is a part
is declared effective, Potlatch is offering to holders of Original Notes the
opportunity to exchange all their Original Notes for Exchange Notes. Potlatch
will keep the exchange offer open for at least 30 calendar days (or longer if
required by applicable law) after the date notice of the exchange offer is
mailed to the holders of the Original Notes. For any Original Notes validly
tendered to Potlatch pursuant to the exchange offer, the holder of such
Original Notes will receive Exchange Notes which have a principal amount,
interest rate, maturity date and other terms substantially identical to the
principal amount, interest rate, maturity date and other terms of the tendered
Original Notes.
Each holder of the Original Notes (other than each holder specified in the
registration rights agreement) who wishes to exchange Original Notes for
Exchange Notes in the exchange offer will be required to represent that (1) it
is not an affiliate of Potlatch within the meaning of the Securities Act, (2)
the Exchange Notes to be received by it were acquired in the ordinary course
of its business and (3) at the time of the exchange offer, it has not engaged
in, does not intend to engage in, and has no arrangement or understanding with
any person to participate in the distribution of the Exchange Notes within the
meaning of the Securities Act. In addition, in connection with any resales of
Exchange Notes, any broker who acquired the Original Notes for its own account
as a result of market-making or other trading activities (a "Participating
Broker-Dealer") must deliver a prospectus meeting the requirements of the
Securities Act. Potlatch believes, based on positions taken by the SEC's staff
in interpretive letters to third parties, that Participating Broker-Dealers
may fulfill their prospectus delivery requirements with respect to the
Exchange Notes (other than a resale of unsold allotments from the original
sale of the Original Notes) with this prospectus. Under the registration
rights agreement, Potlatch is required to allow Participating Broker-Dealers
to use this prospectus in connection with the resale of the Exchange Notes for
a period of 180 days starting on the Expiration Date and ending on the close
of business 180 days after the Expiration Date.
If, (1) because of any applicable change in law or in currently prevailing
interpretations of the staff of the SEC, Potlatch is not permitted to effect
the exchange offer, (2) the exchange offer is not consummated within 225 days
of March 15, 1999, or (3) in the case of any holder that participates in the
exchange offer, such holder does not receive Exchange Notes on the date of the
exchange that may be sold without restriction under state and Federal
securities laws (other than due solely to the status of such holder as an
affiliate of Potlatch within the meaning of the Securities Act or as a broker-
dealer), then in each case, Potlatch will promptly notify the holders in
writing and at Potlatch's sole expense:
. as promptly as practicable, file a shelf registration statement covering
resales of the applicable Original Notes (the "Shelf Registration
Statement");
5
<PAGE>
. use its reasonable efforts to cause the Shelf Registration Statement to
be declared effective under the Securities Act; and
. use its reasonable efforts to keep effective the Shelf Registration
Statement until the earlier of two years (or, if Rule 144(k) is amended
to provide a shorter restrictive period, such shorter period) after
March 15, 1999 or such time as all of the Original Notes have been sold
thereunder.
Potlatch will, in the event that a Shelf Registration Statement is filed,
provide to each applicable holder copies of the prospectus that is a part of
the Shelf Registration Statement, notify each such holder when the Shelf
Registration Statement for the Original Notes has become effective and take
certain other actions as are required to permit unrestricted resales of the
Original Notes. A holder that sells Original Notes pursuant to the Shelf
Registration Statement will be required to be named as a selling security
holder in the related prospectus and to deliver a prospectus to purchasers,
will be subject to certain of the civil liability provisions under the
Securities Act in connection with such sales and will be bound by the
provisions of the registration rights agreement that are applicable to such a
holder (including certain indemnification rights and obligations). If Potlatch
fails to comply with certain provisions of the registration rights agreement,
in each case as described below, then liquidated damages shall become payable
in respect of the Original Notes.
Terms of the Exchange Offer
Potlatch is offering to exchange up to $100,000,000 total principal amount of
Original Notes for a like total principal amount of Exchange Notes. The
Original Notes must be tendered properly and not withdrawn on or before the
Expiration Date, which is 5:00 p.m. New York City time on
, 1999, unless Potlatch extends the exchange offer. In
exchange for Original Notes properly tendered and accepted, Potlatch will issue
a like total principal amount of up to $100,000,000 in Exchange Notes.
The exchange offer is not conditioned upon holders tendering a minimum
principal amount of Original Notes. As of the date of this prospectus,
$100,000,000 aggregate principal amount of Original Notes is outstanding.
Holders of the Original Notes do not have any appraisal or dissenters' rights
in the exchange offer. If holders do not tender Original Notes or tender
Original Notes that Potlatch does not accept, their Original Notes will remain
outstanding. Any Original Notes will be entitled to the benefits of the
Indenture, but will not be entitled to any further registration rights under
the registration rights agreement, except under limited circumstances.
After the Expiration Date, Potlatch will return to the holder any tendered
Original Notes that Potlatch did not accept for exchange due to, among other
things, an invalid tender.
Holders exchanging Original Notes will not have to pay brokerage commissions
or fees or transfer taxes if they follow the instructions in the letter of
transmittal, which describes the procedure for submitting Original Notes
pursuant to the exchange offer (the "Letter of Transmittal"). Potlatch will pay
its own expenses incurred in connection in the performance of its obligations,
other than certain taxes described below, in the exchange offer. See "--Fees
and Expenses" for further information regarding fees and expenses.
Neither Potlatch nor Potlatch's board of directors recommends that you tender
or not tender Original Notes in the exchange offer. In addition, Potlatch has
not authorized anyone to make any recommendation. You must decide whether to
tender in the exchange offer and, if so, the aggregate amount of Original Notes
to tender.
Potlatch has the right, in accordance with applicable law, at any time:
. to delay the acceptance of the Original Notes;
. to terminate the exchange offer if Potlatch determines that any of the
conditions to the exchange offer have not occurred or have not been
satisfied;
6
<PAGE>
. to extend the Expiration Date of the exchange offer and keep all
Original Notes tendered other than those Original Notes properly
withdrawn; and
. to waive any condition or amend the terms of the exchange offer.
If Potlatch materially changes the exchange offer, or if Potlatch waives a
material condition of the exchange offer, Potlatch will promptly distribute a
prospectus supplement to the holders of the Original Notes disclosing the
change or waiver. Potlatch also will extend the exchange offer as required by
Rule 14e-1 under the Securities Exchange Act of 1934, as amended.
If Potlatch exercises any of the rights listed above, it will promptly give
oral or written notice of the action to U.S. Bank Trust National Association
(the "Exchange Agent") and will issue a release to an appropriate news agency.
In the case of an extension, an announcement will be made no later than 9:00
a.m., New York City time, on the next business day after the previously
scheduled Expiration Date.
Acceptance for Exchange and Issuance of Exchange Notes
Potlatch will issue Exchange Notes to the Exchange Agent for Original Notes
tendered and accepted and not withdrawn promptly after the Expiration Date. The
Exchange Agent might not deliver the Exchange Notes to all tendering holders at
the same time. The timing of delivery depends upon when the Exchange Agent
receives and processes the required documents.
Potlatch will be deemed to have exchanged Original Notes validly tendered and
not withdrawn when Potlatch gives oral or written notice to the Exchange Agent
of their acceptance. The Exchange Agent is an agent for Potlatch for receiving
tenders of Original Notes, Letters of Transmittal and related documents. The
Exchange Agent is also an agent for tendering holders for receiving Original
Notes, Letters of Transmittal and related documents and transmitting Exchange
Notes to validly tendering holders. If, for any reason, Potlatch (1) delays the
acceptance or exchange of any Original Notes, (2) extends the exchange offer,
or (3) is unable to accept or exchange Original Notes, then the Exchange Agent
may, on behalf of Potlatch and subject to Rule 14e-1(c) under the Exchange Act,
retain tendered notes. Original Notes retained by the Exchange Agent may not be
withdrawn, except according to the withdrawal procedures outlined in the
section entitled "--Withdrawal Rights" below.
In tendering Original Notes, you must represent and warrant in the Letter of
Transmittal or in an Agent's Message (described below) that (1) you have full
power and authority to tender, exchange, sell, assign and transfer Original
Notes, (2) Potlatch will acquire good, marketable and unencumbered title to the
tendered Original Notes, free and clear of all liens, restrictions, charges and
other encumbrances, and (3) the Original Notes tendered for exchange are not
subject to any adverse claims or proxies. You also must warrant and agree that
you will, upon request, execute and deliver any additional documents requested
by Potlatch or the Exchange Agent to complete the exchange, sale, assignment,
and transfer of the Original Notes and that you will comply with your
obligations under the registration rights agreement.
Procedures for Tendering Original Notes
Valid Tender
You may tender your Original Notes by book-entry transfer or, if you hold
certificated securities, by other means, as described below. For book-entry
transfer, you must deliver to the Exchange Agent either (1) a completed and
signed Letter of Transmittal, or (2) an Agent's Message. An "Agent's Message"
means a message, transmitted by The Depository Trust Company, New York, New
York ("DTC"), to and received by the Exchange Agent and forming a part of a
book-entry confirmation (a confirmation of a book-entry transfer of Original
Notes into the Exchange Agent's account at DTC), which states that DTC has
received an express acknowledgment from the tendering participant, which
acknowledgment states that it has received and agrees to be bound by the Letter
of Transmittal and that Potlatch may enforce the Letter of Transmittal against
the tendering participant. You must deliver your Letter of Transmittal or the
Agent's Message by mail, facsimile,
7
<PAGE>
hand delivery or overnight carrier to the Exchange Agent on or before the
Expiration Date. In addition, to complete a book-entry transfer, you must also
either (1) have DTC transfer the Original Notes into the Exchange Agent's
account at DTC using the automated tender offer program procedures for
transfer, and obtain a confirmation of such a transfer, or (2) follow the
guaranteed delivery procedures described below under "--Guaranteed Delivery
Procedures."
If you tender less than all of your Original Notes, you should fill in the
principal amount of notes tendered in the appropriate box on the Letter of
Transmittal. If you do not indicate the amount tendered in the appropriate box,
Potlatch will assume you are tendering all Original Notes that you hold.
For tendering your Original Notes other than by book-entry transfer, you must
deliver a completed and signed Letter of Transmittal to the Exchange Agent.
Again, you must deliver the Letter of Transmittal by mail, facsimile, hand
delivery or overnight carrier to the Exchange Agent on or before the Expiration
Date. In addition, to complete a valid tender you must either (1) deliver your
Original Notes to the Exchange Agent on or before the Expiration Date, or (2)
follow the guaranteed delivery procedures set forth below under "--Guaranteed
Delivery Procedures."
Delivery of required documents by whatever method you choose is at your sole
risk. Delivery is complete when the Exchange Agent actually receives the items
to be delivered. Delivery of documents to DTC in accordance with DTC's
procedures does not constitute delivery to the Exchange Agent. If delivery is
by mail, then registered mail, return receipt requested, properly insured, or
an overnight delivery service is recommended. In all cases, you should allow
sufficient time to ensure timely delivery.
Signature Guarantees
You do not need to endorse certificates for the Original Notes or provide
signature guarantees on the Letter of Transmittal, unless (1) someone other
than the registered holder tenders the certificate or (2) you complete the box
entitled "Special Issuance Instructions" or "Special Delivery Instructions" in
the Letter of Transmittal. In the case of (1) or (2) above, you must sign your
Original Notes or provide a properly executed bond power, with the signature on
the bond power and on the Letter of Transmittal guaranteed by a firm or other
entity identified in Rule 17Ad-15 under the Exchange Act as an "eligible
guarantor institution." Eligible guarantor institutions include:
. a bank;
. a broker, dealer, municipal securities broker or dealer or government
securities broker or dealer;
. a credit union;
. a national securities exchange, registered securities association or
clearing agency; or
. a savings association that is a participant in a securities transfer
association.
Guaranteed Delivery Procedures
If you want to tender your Original Notes in the exchange offer and (1) the
certificates for the Original Notes are not immediately available or all
required documents are unlikely to reach the Exchange Agent on or before the
Expiration Date, or (2) a book-entry transfer cannot be completed in time, you
may tender your Original Notes if you comply with the following guaranteed
delivery procedures:
. the tender is made by or through an eligible guarantor institution;
. you deliver a properly completed and signed Notice of Guaranteed
Delivery in the form provided with the Letter of Transmittal to the
Exchange Agent on or before the Expiration Date; and
. you deliver the certificates or a confirmation of book-entry transfer
and a properly completed and signed Letter of Transmittal to the
Exchange Agent within three New York Stock Exchange trading days after
you execute the Notice of Guaranteed Delivery.
8
<PAGE>
You may deliver the Notice of Guaranteed Delivery by hand, facsimile or mail
to the Exchange Agent, and you must include a guarantee by an eligible
guarantor institution in the form described in the notice.
Potlatch's acceptance of properly tendered Original Notes is a binding
agreement between the tendering holder and Potlatch upon the terms and subject
to the conditions of the exchange offer.
Determination of Validity
Potlatch will resolve all questions regarding the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange
of any tendered Original Notes. Potlatch's resolution of these questions as
well as Potlatch's interpretation of the terms and conditions of the exchange
offer (including the Letter of Transmittal) is final and binding on all
parties. A tender of Original Notes is invalid until all irregularities have
been cured or waived. Neither Potlatch, any affiliates or assigns of Potlatch,
the Exchange Agent nor any other person is under any obligation to give notice
of any irregularities in tenders nor will they be liable for failing to give
any such notice. Potlatch reserves the absolute right, in its sole and absolute
discretion, to reject any tenders determined to be in improper form or
unlawful. Potlatch also reserves the absolute right to waive any of the
conditions of the exchange offer or any condition or irregularity in the tender
of Original Notes by any holder. Potlatch need not waive similar conditions or
irregularities in the case of other holders.
If any Letter of Transmittal, endorsement, bond power, power of attorney, or
any other document required by the Letter of Transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
that person must indicate that capacity when signing. In addition, unless
waived by Potlatch, the person must submit proper evidence satisfactory to
Potlatch, in its sole discretion, of his or her authority to so act.
A beneficial owner of an Original Note that is held by or registered in the
name of a broker, dealer, commercial bank, trust company or other nominee or
custodian should contact that entity promptly if the holder wants to
participate in the exchange offer.
Resales of Exchange Notes
Potlatch is exchanging the Original Notes for Exchange Notes based upon the
position of the staff of the SEC set forth in interpretive letters to third
parties in other similar transactions. Potlatch will not seek its own
interpretive letter. As a result, Potlatch cannot assure you that the staff
will take the same position on this exchange offer as it did in interpretive
letters to other parties. Based on the staff's letters to other parties,
Potlatch believes that holders of Exchange Notes, other than broker-dealers,
can offer the Exchange Notes for resale, resell and otherwise transfer the
Exchange Notes without delivering a prospectus to prospective purchasers, other
than as described below.
Any holder of Original Notes who is an "affiliate" of Potlatch within the
meaning of the Securities Act or who intends to distribute Exchange Notes, or
any broker-dealer who purchased Original Notes from Potlatch to resell pursuant
to Rule 144A or any other available exemption under the Securities Act:
. cannot rely on the staff's interpretations in the above-mentioned
interpretive letters;
. cannot tender Original Notes in the exchange offer; and
. must comply with the registration and prospectus delivery requirements
of the Securities Act to transfer the Original Notes, unless the sale is
exempt.
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Original Notes, where the Original Notes were acquired by the
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
9
<PAGE>
If you want to exchange your Original Notes, you will be required to affirm
that
. you are not an "affiliate" of Potlatch within the meaning of the
Securities Act;
. you are acquiring the Exchange Notes in the ordinary course of your
business;
. you have no arrangement or understanding with any person to participate
in a distribution of the Exchange Notes within the meaning of the
Securities Act; and
. you are not and have not engaged in, and do not intend to engage in, a
distribution of the Exchange Notes within the meaning of the Securities
Act.
In addition, Potlatch may require you to provide information regarding the
number of "beneficial owners" (within the meaning of Rule 13d-3 under the
Exchange Act) of the Original Notes.
Each broker-dealer that receives Exchange Notes for its own account must
acknowledge that it acquired the Original Notes for its own account as the
result of market-making activities or other trading activities and must agree
that it will deliver a prospectus meeting the requirements of the Securities
Act in connection with any resale of Exchange Notes. By making this
acknowledgment and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" under the Securities Act. Based on
the position taken by the SEC's staff in certain interpretive letters to third
parties, Potlatch believes that broker-dealers who acquired Original Notes for
their own accounts as a result of market-making activities or other trading
activities may fulfill their prospectus delivery requirements with respect to
the Exchange Notes with a prospectus meeting the requirements of the Securities
Act. Accordingly, Potlatch believes that a broker-dealer may use this
prospectus to satisfy such requirements. Potlatch has agreed that, starting on
the Expiration Date and ending on the close of business on the 180th day
following the Expiration Date, it will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any
such resale. See "Plan of Distribution" for further information. A broker-
dealer intending to use this prospectus in the resale of Exchange Notes must
notify Potlatch, on or prior to the Expiration Date, that it is a Participating
Broker-Dealer (as defined above under the heading "Exchange Offer--Purpose of
the Exchange Offer"). This notice may be given in the Letter of Transmittal or
may be delivered to the Exchange Agent. Any Participating Broker-Dealer who is
an "affiliate" of Potlatch within the meaning of the Securities Act may not
rely on the staff's interpretive letters and must comply with the registration
and prospectus delivery requirements of the Securities Act when reselling
Exchange Notes.
Potlatch agrees to advise you of:
. any SEC request for amendments or supplements to the registration
statement or this prospectus or for additional information;
. the SEC's issuance of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that
purpose; and
. Potlatch's receipt of any notification with respect to the suspension of
the qualification of the Exchange Notes in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
Upon the occurrence of any of these events, Potlatch agrees to notify you, if
applicable, to suspend use of this prospectus and Potlatch will prepare, using
its reasonable efforts to do so as soon as possible, a post-effective amendment
to the registration statement or an amendment or supplement to this prospectus
or file any other required document so that, as subsequently delivered to
purchasers of the Exchange Notes, this prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements in this prospectus, in the light of the circumstances under
which they were made, not misleading. You agree that you shall suspend use of
this prospectus until Potlatch has amended or supplemented the prospectus so
that it does not contain any such untrue statement or omission.
10
<PAGE>
Withdrawal Rights
You can withdraw tenders of Original Notes at any time on or before the
Expiration Date.
For a withdrawal to be effective, you must deliver a written or facsimile
transmission of a notice of withdrawal to the Exchange Agent on or before the
Expiration Date. The notice of withdrawal must specify the name of the person
tendering the Original Notes to be withdrawn, the total principal amount of
Original Notes withdrawn, and the name of the registered holder of the Original
Notes if different from the person tendering the Original Notes. If you
delivered Original Notes to the Exchange Agent, you must submit the serial
numbers of the Original Notes to be withdrawn and the signature on the notice
of withdrawal must be guaranteed by an eligible guarantor institution, except
in the case of Original Notes tendered for the account of an eligible guarantor
institution. If you tendered Original Notes as a book-entry transfer, the
notice of withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of Original Notes and you must deliver the
notice of withdrawal to the Exchange Agent by written, telegraphic, telex or
facsimile transmission. You may not rescind withdrawals of your tender of
notes. Original Notes properly withdrawn may again be tendered at any time on
or before the Expiration Date.
Potlatch will determine all questions regarding the validity, form and
eligibility of withdrawal notices. Potlatch's determination will be final and
binding on all parties. Neither Potlatch, any affiliate or assign of Potlatch,
the Exchange Agent nor any other person is under any obligation to give notice
of any irregularities in any notice of withdrawal, nor will they be liable for
failing to give any such notice. Withdrawn Original Notes will be returned to
the holder after withdrawal.
Interest on Exchange Notes
The Exchange Notes will bear interest at a rate of 6.25% per annum from March
15, 1999, payable semi-annually, on March 15 and September 15 of each year,
commencing September 15, 1999, to the person in whose names the Exchange Notes
are registered at the close of business on March 1 and September 1, as the case
may be, next preceding such interest payment date. Holders of Exchange Notes
will receive interest on September 15, 1999 from the date of initial issuance
of the Exchange Notes, plus an amount equal to the accrued, but unpaid,
interest on the Original Notes. Interest on the Original Notes accepted for
exchange will cease to accrue upon issuance of the Exchange Notes.
Conditions to the Exchange Offer
If Potlatch reasonably believes that:
. the staff of the SEC no longer allows the Exchange Notes to be offered
for resale, resold and otherwise transferred by certain holders without
compliance with the registration and prospectus delivery provisions of
the Securities Act; or
. a governmental body passes any law, statute, rule or regulation which,
in Potlatch's opinion, prohibits or prevents the exchange offer; or
. the SEC or any state securities authority issues a stop order suspending
the effectiveness of the registration statement or initiates or
threatens to initiate a proceeding to suspend the effectiveness of the
registration statement; or
. Potlatch is unable to obtain any governmental approval that Potlatch
believes is necessary to complete the exchange offer;
then Potlatch may (1) terminate the exchange offer, whether or not any Original
Notes have been accepted for exchange, (2) waive any condition to the exchange
offer or (3) amend the terms of the exchange offer in any respect. Potlatch's
failure at any time to exercise any of the foregoing rights will not waive such
rights, and each right will be deemed an ongoing right which may be asserted at
any time or from time to time. Notwithstanding the foregoing, Potlatch does not
intend to terminate the exchange offer if none of the foregoing conditions has
occurred.
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<PAGE>
Exchange Agent
Potlatch appointed U.S. Bank Trust National Association as Exchange Agent for
the exchange offer. Holders should direct questions and requests for
assistance, requests for additional copies of this prospectus or of the Letter
of Transmittal and requests for Notice of Guaranteed Delivery to the Exchange
Agent addressed as follows:
By Registered or Certified Mail, Hand or Overnight Delivery:
U.S. Bank Trust National Association
180 East Fifth Street
4th Floor Window
St. Paul, MN 55101-9549
Attention: Specialized Finance
Confirm by Telephone:
[Not available until expiration date of offer known]
Facsimile Transmissions:
(651) 244-0711
Fees and Expenses
Potlatch will pay the Exchange Agent reasonable and customary fees for its
services and reasonable out-of-pocket expenses. Potlatch may also pay brokerage
houses and other custodians, nominees and fiduciaries their reasonable out-of-
pocket expenses in forwarding copies of this prospectus and related documents
to holders of Original Notes, and in handling or forwarding tenders for
exchange.
Potlatch will pay the transfer taxes for the exchange of the Original Notes
in the exchange offer. If, however, Exchange Notes are delivered to or issued
in the name of a person other than the registered holder, or if a transfer tax
is imposed for any reason other than for the exchange of Original Notes in the
exchange offer, then the tendering holder will pay the transfer taxes. If a
tendering holder does not submit satisfactory evidence of payment of taxes or
exemption from taxes with the Letter of Transmittal, the taxes will be billed
directly to the tendering holder.
Potlatch will not make any payment to brokers, dealers or other persons
soliciting acceptances in the exchange offer.
Accounting Treatment
Potlatch will record the Exchange Notes at the same carrying value as the
Original Notes, as reflected in its accounting records on the date of exchange.
Accordingly, Potlatch will not recognize any gain or loss for accounting
purposes. Potlatch intends to amortize the expenses of the exchange offer and
issuance of the Original Notes over the term of the Exchange Notes.
USE OF PROCEEDS
Potlatch will not receive any proceeds from the exchange offer. In
consideration for issuing the Exchange Notes, Potlatch will receive Original
Notes of like principal amount, the terms of which are identical in all
material respects to the Exchange Notes. The Original Notes surrendered in
exchange for Exchange Notes will be retired and canceled and cannot be
reissued. Accordingly, the issuance of the Exchange Notes will not result
12
<PAGE>
in any increase in Potlatch's indebtedness. Potlatch has agreed to pay its own
expenses incurred in connection with the performance of its obligations with
respect to the exchange offer. No underwriter is being used in connection with
the exchange offer.
The net proceeds to Potlatch from the sale of the Original Notes after
deducting expenses were approximately $99,275,000. Potlatch used the net
proceeds to repay an equivalent amount of its commercial paper, classified as
long-term debt, which had interest rates ranging from 5.03% to 5.12%.
SELECTED HISTORICAL FINANCIAL INFORMATION
The following selected historical financial information for each of the five
years ended December 31 set forth below has been derived from the consolidated
financial statements of Potlatch audited by KPMG Peat Marwick LLP, independent
certified public accountants. The information below should be read in
conjunction with "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and Potlatch's consolidated financial statements and
related notes incorporated by reference in this prospectus.
<TABLE>
<CAPTION>
Year Ended December 31,
--------------------------------------------------------
1994 1995 1996 1997 1998
---------- ---------- ---------- ---------- ----------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C>
Income Statement Data
Net sales............... $1,471,258 $1,605,206 $1,554,449 $1,568,870 $1,565,878
---------- ---------- ---------- ---------- ----------
Costs and expenses:
Depreciation,
amortization and cost
of fee timber
harvested.............. 138,251 137,031 141,521 149,785 150,278
Materials, labor and
other operating
expenses............... 1,121,491 1,158,002 1,186,127 1,219,665 1,195,449
Selling, general and
administrative
expenses............... 82,799 90,569 104,114 106,450 120,944
---------- ---------- ---------- ---------- ----------
1,342,541 1,385,602 1,431,762 1,475,900 1,466,671
---------- ---------- ---------- ---------- ----------
Earnings from
operations............. 128,717 219,604 122,687 92,970 99,207
Interest expense, net of
capitalized interest... (51,137) (47,976) (43,869) (46,124) (49,744)
Other income (expense),
net.................... (1,619) (689) 7,508 7,789 8,712
---------- ---------- ---------- ---------- ----------
Earnings before taxes on
income and
extraordinary item..... 75,961 170,939 86,326 54,635 58,175
Provisions for taxes on
income................. 26,966 62,393 24,792 18,576 20,943
---------- ---------- ---------- ---------- ----------
Net earnings before
extraordinary item..... 48,995 108,546 61,534 36,059 37,232
Extraordinary item--loss
from early
extinguishment of debt,
net of tax............. -- -- (3,445) -- --
---------- ---------- ---------- ---------- ----------
Net earnings............ $ 48,995 $ 108,546 $ 58,089 $ 36,059 $ 37,232
========== ========== ========== ========== ==========
Balance Sheet Data
Working capital......... $ 142,728 $ 128,066 $ 117,966 $ 106,221 $ 97,556
Total assets............ 2,081,229 2,265,311 2,265,679 2,365,136 2,377,306
Long-term debt
(noncurrent portion)... 633,473 616,132 672,048 722,080 712,113
Stockholders' equity.... 901,619 943,904 954,195 951,592 930,906
</TABLE>
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<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The following information is qualified in its entirety by and should be read
in conjunction with the consolidated financial statements and other information
incorporated by reference in this prospectus. See "Incorporation of Documents
by Reference."
<TABLE>
<CAPTION>
Year Ended December 31,
------------------------
1994 1995 1996 1997 1998
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges(1).................. 2.3x 4.0x 2.3x 1.9x 1.9x
</TABLE>
- --------
(1) For the purpose of computing this ratio, earnings represent earnings before
taxes on income and fixed charges, excluding capitalized interest. Fixed
charges represent interest expense, including capitalized interest, one-
third of total rental expense, and amortization of discount and loan
expense related to long-term debt.
DESCRIPTION OF THE EXCHANGE NOTES
The Original Notes were, and the Exchange Notes will be, issued under an
Indenture dated as of March 15, 1999 between Potlatch and U.S. Bank Trust
National Association, as trustee (the "Trustee"). A copy of the Indenture will
be made available upon request. The following summaries of certain provisions
of the Original Notes and the Exchange Notes (together, the "Notes") and the
Indenture do not purport to be complete and are subject to, and are qualified
in their entirety by reference to, all the provisions of the Indenture,
including the Indenture's definitions of certain terms. Whenever particular
provisions or defined terms in the Indenture are referred to, those provisions
or defined terms are incorporated by reference. Section references used in this
prospectus are references to the Indenture. Capitalized terms not otherwise
defined in this prospectus shall have the meanings given to them in the
Indenture.
General
The Exchange Notes offered hereby will mature on March 15, 2002. The Exchange
Notes will bear interest at the rate of 6.25% per annum from March 15, 1999,
payable semiannually on March 15 and September 15 of each year (each, an
"Interest Payment Date"), commencing September 15, 1999, to the persons in
whose names the Exchange Notes are registered at the close of business on the
March 1 and September 1, as the case may be, next preceding such Interest
Payment Date. The Exchange Notes will not be redeemable prior to maturity and
are not entitled to any sinking fund. The Exchange Notes will be
nonconvertible, unsecured obligations of Potlatch limited to $100,000,000
aggregate principal amount and will rank on parity with all other unsecured and
unsubordinated indebtedness of Potlatch. The Exchange Notes will be issued in
minimum denominations of $100,000 and integral multiples of $1,000 in excess of
$100,000. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
No service charge will be made for any registration of transfer of the
Exchange Notes, but Potlatch may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The provisions of the Indenture and the Exchange Notes would not necessarily
afford protection to owners of the Exchange Notes in the event of a highly
leveraged transaction involving Potlatch. The Indenture does not limit the
amount of additional unsecured indebtedness that Potlatch or any of its
Subsidiaries may incur.
Global Securities
The Exchange Notes will be issued in fully-registered form without coupons.
The Exchange Notes will initially be issued in global form, and definitive
certificated notes will not be issued except in the limited circumstances
described below.
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<PAGE>
The Exchange Notes will be evidenced by one or more global certificates (the
"Global Securities"), which will be deposited with, or on behalf of, DTC, and
registered in the name of Cede & Co. ("Cede"), as DTC's nominee.
Persons holding interests in the Global Securities may hold their interests
directly through DTC, or indirectly through organizations that are participants
in DTC ("Participants"). Transfers between Participants will be effected in the
ordinary way in accordance with DTC rules and will be settled in immediately
available funds.
Persons who are not Participants may beneficially own interests in a Global
Security held by DTC only through Participants or certain banks, brokers,
dealers, trust companies and other parties that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly, and
have indirect access to the DTC system ("Indirect Participants"). So long as
Cede, as the nominee of DTC, is the registered owner of any Global Security,
Cede for all purposes will be considered the sole holder of such Global
Security. Except as provided below, owners of beneficial interests in a Global
Security will not be entitled to have certificates registered in their names,
will not receive or be entitled to receive physical delivery of certificates in
definitive form, and will not be considered the holder thereof.
Neither Potlatch nor the Trustee (nor any registrar or paying agent) will
have any responsibility for the performance by DTC or its Participants or
Indirect Participants of their respective obligations under the rules and
procedures governing their operations. DTC has advised Potlatch that it will
take any action permitted to be taken by a holder of Exchange Notes only at the
direction of one or more Participants whose accounts are credited with DTC
interests in a Global Security.
DTC has advised Potlatch as follows: DTC is a limited purpose trust company
organized under the laws of the State of New York, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered pursuant to the provisions
of Section 17A of the Exchange Act. DTC was created to hold securities for its
Participants and to facilitate the clearance and settlement of securities
transactions, such as transfers and pledges, among Participants in deposited
securities through electronic book-entry changes to accounts of its
Participants, thereby eliminating the need for physical movement of securities
certificates. Participants include securities brokers and dealers, banks, trust
companies, clearing corporations and certain other organizations. Certain of
such Participants (or their representatives), together with other entities, own
DTC. The rules applicable to DTC and its Participants are on file with the SEC.
Purchases of Exchange Notes under the DTC system must be made by or through
Participants, which will receive a credit for the Exchange Notes on DTC's
records. The ownership interest of each actual purchaser of Exchange Notes (a
"Beneficial Owner") is in turn to be recorded on the Participants' and Indirect
Participants' records. Beneficial Owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Participant or Indirect Participant
through which the Beneficial Owner entered into the transaction. Transfers of
ownership interests in the Exchange Notes are to be accomplished by entries
made on the books of Participants acting on behalf of Beneficial Owners.
Beneficial Owners will not receive certificates representing their ownership
interests in the Exchange Notes, except in the event that use of the book-entry
system for the Exchange Notes is discontinued.
The deposit of Exchange Notes with DTC and their registration in the name of
Cede effect no change in beneficial ownership. DTC has no knowledge of the
actual Beneficial Owners of the Exchange Notes; DTC's records reflect only the
identity of the Participants to whose accounts such Exchange Notes are
credited, which may or may not be the Beneficial Owners. The Participants will
remain responsible for keeping account of their holdings on behalf of their
customers.
15
<PAGE>
The laws of some jurisdictions require that certain purchasers of securities
take physical delivery of securities in definitive form. Such laws may impair
the ability to transfer beneficial interests in the Global Security.
Conveyance of notices and other communications by DTC to Participants, by
Participants to Indirect Participants and by Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements that may be in effect from
time to time.
Principal and interest payments on the Exchange Notes will be made to DTC by
wire transfer of immediately available funds. DTC's practice is to credit
Participants' accounts on the payable date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe that it will
not receive payment on the payable date. Payments by Participants to Beneficial
Owners will be governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of such Participant
and not of DTC, or Potlatch, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal and
interest to DTC is the responsibility of Potlatch, disbursement of such
payments to Participants shall be the responsibility of DTC, and disbursement
of such payments to the Beneficial Owners shall be the responsibility of
Participants and Indirect Participants. Neither Potlatch nor the Trustee will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in the Global
Securities or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Except as described below, a Global Security representing the Exchange Notes
will be exchangeable for definitive Exchange Notes in registered form, of like
tenor and of an equal aggregate principal amount, only if (1) DTC notifies
Potlatch that it is unwilling or unable to continue as depositary for such
permanent Global Security or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act, and Potlatch has not appointed a successor
depositary within 90 days, (2) Potlatch in its sole discretion determines that
such Global Security shall be exchangeable for definitive Notes in registered
form or (3) any event shall have happened and be continuing which, after notice
or lapse of time, or both, would become an Event of Default with respect to the
Exchange Notes and the Beneficial Owners of a majority in aggregate principal
amount of the Notes represented by such Global Security advise DTC to cease
acting as depositary and DTC so advises in writing. Any Global Security that is
exchangeable pursuant to the preceding sentence shall be exchangeable in whole
for definitive Exchange Notes in registered form of like tenor and of an equal
aggregate principal amount, in denominations of $100,000 and integral multiples
of $1,000 in excess of $100,000. Such definitive Exchange Notes shall be
registered in the name or names of such person or persons as DTC shall instruct
the Trustee. It is expected that such instructions may be based upon directions
received by DTC from its participants with respect to ownership of beneficial
interests in such Global Security.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Potlatch believes to be reliable, but
Potlatch does not take responsibility for the accuracy thereof.
Certificated Exchange Notes
Subject to certain conditions, any person having a beneficial interest in the
Global Securities may, upon request to the Trustee, exchange such beneficial
interest for Exchange Notes in the form of certificated Exchange Notes. Upon
any such issuance, the Trustee is required to register the certificated
Exchange Notes in the name of, and cause the same to be delivered to, such
person or persons (or the nominee of any thereof). In addition, if (1) Potlatch
notifies the Trustee in writing that DTC is no longer willing or able to act as
a depositary and Potlatch is unable to locate a qualified successor within 90
days or (2) Potlatch, at its option, notifies the Trustee in writing that it
elects to cause the issuance of Exchange Notes in the form of certificated
Exchange Notes under the Indenture, then, upon surrender by Cede, or its
nominee, of Global Securities,
16
<PAGE>
Exchange Notes in such form will be issued to each person that Cede, or its
nominee, and DTC identify as being the beneficial owner of the related Exchange
Notes.
Neither Potlatch nor the Trustee will be liable for any delay by Cede, its
nominee, or DTC in identifying the Beneficial Owners of Exchange Notes and
Potlatch and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from Cede, its nominee, or DTC for all purposes.
Year 2000
The following information has been provided by DTC:
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC, continue to function
appropriately. This program includes a technical assessment and a remediation
plan, each of which is complete. Additionally, DTC's plan includes a testing
phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third-party vendors from whom DTC licenses software and hardware, and
third-party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third party vendors from whom DTC acquires services to:
(1) impress upon them the importance of such services being Year 2000
compliant; and (2) determine the extent of their efforts for Year 2000
remediation (and, as appropriate, testing) of their services. In addition, DTC
is in the process of developing such contingency plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
Same-Day Funds Settlement and Payment
All payments of principal and interest on the Exchange Notes will be made by
Potlatch in immediately available funds.
Secondary trading in long-term notes and debentures of corporate issuers is
generally settled in clearing-house or next-day funds. In contrast, the
Exchange Notes will trade in DTC's Same-Day Funds Settlement System until
maturity, and secondary market trading activity in the Exchange Notes will
therefore be required by DTC to settle in immediately available funds. No
assurance can be given as to the effect, if any, of settlement in immediately
available funds on trading activity in the Exchange Notes.
Restrictions on Secured Debt
Potlatch covenanted in the Indenture that it will not, nor will it permit any
Subsidiary to, create, assume or incur any Lien (except any existing on March
15, 1999, the date of the Indenture), upon any of its or their Principal
Properties, whether owned at such date or thereafter acquired, as security for
any Indebtedness without making effective provision, and Potlatch covenanted in
the Indenture that in any such case effective provision will be made, whereby
the Notes shall be secured equally and ratably with (or, at the option of
Potlatch, prior to) any and all other obligations and Indebtedness thereby
secured; provided, however, that the foregoing restriction shall not apply to:
17
<PAGE>
(a) Liens upon any property or assets owned by any Subsidiary when it
became a Subsidiary;
(b) Liens on any property or assets existing at the time of its or their
acquisition and Liens on any property or assets acquired, constructed
or improved which are created contemporaneously with or within 180 days
after (or created pursuant to financing arrangements, a firm commitment
for which is obtained within 180 days after) the completion of such
acquisition, improvement or construction to secure or provide for
payment of the purchase price of property or assets acquired or the
cost of such construction or improvement, including Liens arising in
connection with cross-border or defeased lease arrangements;
(c) certain tax Liens or governmental charges and materialmens',
mechanics', landlords' or other like Liens securing obligations not
overdue or which shall be contested in good faith;
(d) certain pledges or deposits;
(e) any lease;
(f) Liens to secure payments under any contract or statute, or to secure
any Indebtedness incurred in financing the acquisition, construction or
improvement of property subject thereto, including Liens on, and
created or arising in connection with the financing of, certain
facilities through the issuance of obligations by a state or local
governmental unit;
(g) easements or similar encumbrances, the existence of which does not
materially impair the use of the Principal Property subject thereto for
the purposes for which it is held or was acquired;
(h) Liens arising out of any final judgment for the payment of money
aggregating not in excess of $10,000,000, or Liens arising out of any
judgments which are being contested in good faith;
(i) Liens on Timberlands in connection with an arrangement under which
Potlatch or a Subsidiary is obligated to cut or pay for timber in order
to provide the Lienholder with a specified amount of money, however
determined;
(j) Liens created or assumed in the ordinary course of the business of
exploring for, developing or producing oil, gas or other minerals
(including borrowings in connection therewith) on, or on any interest
in, or on any proceeds from the sale of property acquired for such
purposes, production therefrom (including the proceeds thereof), or
material or equipment located thereon; and
(k) Liens to extend, renew or replace any Liens referred to in clauses (a)
through (j) or this clause (k) or any Lien existing on the date of the
Indenture.
Notwithstanding the above, Potlatch or any Subsidiary may create, assume or
incur any Lien that would otherwise be subject to the foregoing restriction,
provided that at no time shall the aggregate amount of all outstanding
obligations and Indebtedness secured by Liens that would otherwise be
prohibited by the above, plus the aggregate amount of Attributable Debt in
respect of sale and leaseback transactions described in the following paragraph
(other than any such transactions to the extent that the cash portion of the
net proceeds of the sale of such property shall have been applied in compliance
with clause (b) of the following paragraph), exceed 10% of Consolidated Net
Tangible Assets at the end of the immediately preceding fiscal year of Potlatch
(Section 1005).
Restrictions on Sale and Leaseback Transactions
Potlatch covenanted in the Indenture that it will not, and will not permit
any Subsidiary to, directly or indirectly, sell or transfer (other than to
Potlatch or a Subsidiary) any Principal Property (other than Principal Property
sold or transferred to an industrial development corporation or state or local
governmental unit in
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connection with a revenue or pollution control financing) owned on the date of
the Indenture or thereafter acquired with the intention that Potlatch or any
Subsidiary shall take back a lease thereof (other than a lease for a term of
not more than three years, a lease entered into solely for tax purposes, or a
cross-border or defeased lease arrangement) unless (a) proceeds of such sale
shall at least be equal to the fair value (as determined in good faith by the
Board of Directors) of such Principal Property, and either (b) an amount equal
to the cash portion of the net proceeds of such sale shall be applied within
180 days either before or after the effective date of any such transaction (1)
to the retirement of Funded Indebtedness (other than any thereof owed to
Potlatch or any Subsidiary) or (2) to the purchase of property, facilities or
equipment (other than the property, facilities or equipment involved in such
sale) having a value at least equal to the cash portion of the net proceeds of
such sale or (c) the property, facilities or equipment involved in such sale
could have been subjected to a Lien to secure Indebtedness in a principal
amount equal to the aggregate amount of Attributable Debt in respect of such
sale without equally and ratably securing the Notes as described above under
"Restrictions on Secured Debt" (Section 1006).
Certain Definitions
"Attributable Debt" means, as to any particular lease (other than a cross-
border or defeased lease arrangement) entered into after March 15, 1999, the
total net amount of rent required to be paid by such Person under such lease
during the remaining term thereof, discounted to present value as of such time
in accordance with generally accepted accounting principles from the respective
due dates thereof to such date.
"Consolidated Net Tangible Assets" means the total amount of assets of
Potlatch and its consolidated Subsidiaries (less applicable reserves) after
deducting therefrom: (a) all current liabilities of Potlatch and its
consolidated Subsidiaries (excluding intercompany items among Potlatch and its
consolidated Subsidiaries and excluding any current liabilities constituting
Funded Indebtedness by reason of being renewable or extendable and excluding
deferred income taxes) and (b) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, such assets
and exclusions and deductions therefrom to be in such amounts, if any, as would
appear on a consolidated balance sheet of Potlatch and its consolidated
Subsidiaries as of the date of computation, prepared in accordance with
generally accepted accounting principles applied on a consistent basis.
"Indebtedness" of a corporation means any and all obligations for money
borrowed which in accordance with generally accepted accounting principles
would be included on the liabilities side of a balance sheet of such
corporation as of the date on which such indebtedness was incurred.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind.
"Funded Indebtedness" means, with respect to any corporation, Indebtedness of
such corporation if such Indebtedness shall be payable more than one year from
the date of such computation or shall be extendable or renewable at the option
of such corporation to a time more than one year after the date of computation;
and all guarantees (direct or indirect) of such Indebtedness of others.
"Principal Property" means (a) any building, structure or other facility in
the United States used primarily for manufacturing, in each case the gross book
value (without deduction of any depreciation reserves) of which on the date as
of which the determination is being made shall exceed 10% of Consolidated Net
Tangible Assets, and (b) any Timberlands in the United States owned in fee or
under contract for the purchase of the fee by Potlatch or any Subsidiary other
than such Timberlands in the aggregate not exceeding 10% of the Timberlands
acreage in the United States owned in fee or under contract for the purchase of
the fee by Potlatch or any Subsidiary on the date as of which any determination
is made; provided, however, that the term "Principal Property" does not include
any Timberlands, buildings, structures, facilities or any portion of any of the
foregoing which, in the opinion of the Board of Directors of Potlatch, shall
not be of material importance to the total business conducted by Potlatch and
its Subsidiaries taken as an entirety; and provided, further, that the term
"Principal Property" does not include any land, including without limitation
Timberlands, designated by
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the Board of Directors as being held primarily for development or sale, or any
land, including without limitation Timberlands, held for the exploitation of
minerals or mineral rights.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by Potlatch or by one or more
other Subsidiaries, or by Potlatch and one or more other Subsidiaries. For
purposes of this definition, "voting stock" means stock which ordinarily has
voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Timberlands" means real property that contains standing timber which is (or
upon completion of the growth cycle then in process is expected to become) of a
commercial quantity and of merchantable quality.
Mergers and Sales of Assets by Potlatch
Potlatch may not consolidate with or merge into any other corporation or
transfer its properties and assets substantially as an entirety to any Person
unless (a) the corporation formed by such consolidation or into which Potlatch
is merged or the Person to which the properties and assets of Potlatch are so
transferred shall be a corporation organized and existing under the laws of the
United States, any state thereof or the District of Columbia and shall
expressly assume the payment of the principal of and interest (including
liquidated damages, if any) on the Notes and the performance of the other
covenants of Potlatch under the Indenture, (b) immediately after giving effect
to such transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have occurred
and be continuing, and (c) such surviving corporation or such Person, as the
case may be, shall not immediately thereafter have outstanding Indebtedness
secured by any Liens not permitted by the Indenture or shall have secured the
Notes equally and ratably with (or, at the option of Potlatch, prior to) any
Indebtedness secured thereby (Section 801).
Potlatch may not lease its properties and assets substantially as an entirety
to any Person (Section 803).
Events of Default
The Indenture defines an Event of Default with respect to the Notes as being
any one of the following events:
. default for 30 days in any payment of interest (including liquidated
damages, if any) on any Note;
. default in the payment of principal of any Note when due;
. default, for 60 days after appropriate notice, in performance of any
other covenant or warranty in the Indenture; and
. certain events of bankruptcy, insolvency or reorganization.
In case an Event of Default occurs and is continuing, the Trustee or the
holders of not less than 25% in aggregate principal amount of all of the
outstanding Notes may declare the principal amount to be due and payable
immediately (Sections 501 and 502).
The Indenture requires Potlatch to file annually with the Trustee an
officers' certificate as to whether there has been any default under the terms
of the Indenture (Section 1008). The Indenture provides that the Trustee may
withhold notice to the holders of the Notes of any default (except in payment
of principal or interest (including liquidated damages, if any)) if it
considers such to be in the interest of the holders of the Notes (Section 602).
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default occurs and is continuing, the Indenture
provides that the Trustee shall be under no obligation to exercise any of its
rights or powers under the Indenture at the request, order or direction of the
holders of the Notes unless such
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holders shall have offered to the Trustee reasonable indemnity (Section 603).
Subject to such provisions for indemnification and certain other rights of the
Trustee, the Indenture provides that the holders of a majority in aggregate
principal amount of the outstanding Notes shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Notes (Sections 512 and 603).
No holder of any Notes will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder unless:
. such holder shall have previously given to the Trustee written notice of
a continuing Event of Default;
. the holders of at least 25% in aggregate principal amount of all of the
outstanding Notes shall have made written request to the Trustee to
institute such proceeding as Trustee;
. such holder or holders shall have offered to the Trustee reasonable
indemnity;
. the Trustee shall have failed to institute such proceeding within 60
days after receipt of notice from such holders; and
. the Trustee shall not have received from the holders of a majority in
aggregate principal amount of the outstanding Notes a direction
inconsistent with such request (Section 507).
However, the holder of any Note will have an absolute right to receive
payment of the principal of and interest on such Exchange Note when due and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such holder (Section 508).
Modification and Waiver
Certain modifications and amendments of the Indenture may be made by Potlatch
and the Trustee only with the consent of the holders of not less than a
majority in aggregate principal amount of all of the outstanding Notes,
provided that no such modification or amendment may, without the consent of the
holder of each outstanding Note affected thereby:
. change the date when the principal of, or any installment of interest
(including liquidated damages, if any) on, any such Note is due;
. reduce the principal amount of or the rate of interest (including
liquidated damages, if any) on any such Note;
. change the place of payment where, or the coin or currency in which, any
principal of and interest (including liquidated damages, if any) on any
such Note is payable;
. impair the right to institute suit for the enforcement of any such
payment on or with respect to any such Note;
. reduce the above-stated percentage of outstanding Notes the consent of
the holders of which is necessary to modify or amend the Indenture; or
. modify the foregoing requirements or reduce the percentage of aggregate
principal amount of outstanding Notes necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain
defaults (Section 902).
The holders of not less than a majority in aggregate principal amount of all
of the outstanding Notes may on behalf of the holders of all Notes waive (1)
compliance by Potlatch with certain restrictive provisions of the Indenture
(Section 1009) or (2) compliance by Potlatch with any other provision of the
Indenture, including a past default under the Indenture, except a default in
the payment of the principal of or interest on any Note or in respect of a
provision which under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Note affected (Sections 513 and 902).
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Defeasance of Notes or Certain Covenants
Defeasance and Discharge. The Indenture provides that Potlatch shall be
deemed to have paid and discharged all obligations in respect of the Notes
(except for certain obligations to register the transfer or exchange of Notes
to replace stolen, lost or mutilated Notes, to maintain paying agencies and
hold money for payment in trust) on the 93rd day after the date of deposit with
the Trustee, in trust, of money or U.S. Government Obligations, which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide money in an amount sufficient to pay each installment
of principal and interest on the Notes on the dates on which such principal or
interest is due and payable, in accordance with the terms of the Indenture and
the Notes. Such discharge may only occur if, among other things, Potlatch has
received from, or there has been published by, the United States Internal
Revenue Service a ruling to the effect that holders of the Notes will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal income
tax on the same amount, and in the same manner and at the same time, as would
have been the case if such deposit, defeasance and discharge had not occurred
(Section 403).
Defeasance of Certain Covenants. The Indenture provides that Potlatch may
elect to omit to comply with the restrictive covenants of the Indenture
described above under "Restrictions on Secured Debt" and "Restrictions on Sale
and Leaseback Transactions" if Potlatch deposits with the Trustee, in trust,
money or U.S. Government Obligations, which through the payment of interest and
principal in respect thereof in accordance with their terms will provide money
in an amount sufficient to pay each installment of principal and interest on
the Notes when due, in accordance with the terms of the Indenture and the
Notes. Such a trust may only be established if, among other things, Potlatch
has delivered to the Trustee an opinion of counsel to the effect that the
holders of the Notes will not recognize income, gain or loss for federal income
tax purposes as a result of such deposit and defeasance of certain covenants
and will be subject to federal income tax on the same amount, and in the same
manner and at the same times, as would have been the case if such deposit and
defeasance had not occurred (Section 1007).
Defeasance and Events of Default. In the event Potlatch omits to comply with
certain covenants of the Indenture with respect to the Notes as described above
and the Notes are declared due and payable because of the occurrence of any
Event of Default, the amount of money and U.S. Government Obligations on
deposit with the Trustee will be sufficient to pay the principal and interest
on the Notes when due, but may not be sufficient to pay amounts due on the
Notes at the time of the acceleration resulting from such Event of Default.
However, Potlatch will remain liable for such payments.
Certain Information Regarding the Trustee
The Trustee serves as trustee under three other Indentures pursuant to which
debt securities of Potlatch are outstanding. In addition, an affiliate of the
Trustee acts as trustee for several tax-exempt revenue bonds issued by local
governments in connection with the financing of certain capital projects of
Potlatch.
Governing Law
The Indenture and the Exchange Notes will be governed by the laws of the
State of New York.
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CERTAIN UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a general discussion of certain United States federal tax
consequences associated with the exchange of the Original Notes for the
Exchange Notes pursuant to the exchange offer and disposition of the Exchange
Notes. This summary applies only to a Beneficial Owner of Exchange Notes who
acquired Original Notes at the initial offering from Salomon Smith Barney Inc.
for the original offering price thereof and who acquires the Exchange Notes
pursuant to the exchange offer. This discussion also assumes that the Exchange
Notes will be held as a capital asset within the meaning of Section 1221 of the
Internal Revenue Code of 1986, as amended. This discussion does not address all
of the tax consequences that may be relevant to holders in light of their
particular circumstances or to holders subject to special tax rules, such as
banks and financial institutions, insurance companies, tax-exempt entities,
dealers in securities or currencies, or holders that will hold the Exchange
Notes as part of a hedging transaction, straddle or conversion transaction.
This discussion is based upon the United States federal income tax law now in
effect, which is subject to change, possibly retroactively. Prospective
investors are urged to consult their tax advisors regarding the United States
federal tax consequences of acquiring, holding, and disposing of the Exchange
Notes, as well as any tax consequences that may arise under the laws of any
foreign, state, local, or other taxing jurisdiction.
For purposes of this discussion, a "U.S. Holder" means a holder of Exchange
Notes that is either a citizen or resident of the United States, a corporation,
partnership, or other entity created or organized in the United States or under
the laws of the United States or of any political subdivision thereof, an
estate whose income is includible in gross income for United States federal
income tax purposes regardless of its source, or a trust whose administration
is subject to the primary supervision of a United States court and for which
one or more United States persons have the authority to control all substantial
decisions of the trust. A "Non-U.S. Holder" is a holder of Exchange Notes other
than a U.S. Holder.
Exchange Offer
The exchange of Original Notes for Exchange Notes pursuant to the exchange
offer will not constitute a "significant modification" of the Original Notes
for United States federal income tax purposes and, accordingly, the Exchange
Notes received will be treated as a continuation of the Original Notes in the
hand of such holder. As a result, there will be no United States federal income
tax consequences to a U.S. Holder who exchanges Original Notes for Exchange
Notes pursuant to the exchange offer, and any such holder will have the same
adjusted tax basis and holding period in the Exchange Notes for United States
federal income tax purposes as it had in the Original Notes immediately before
the exchange.
Stated Interest
The holders of Exchange Notes will include stated interest in gross income in
accordance with their methods of accounting for tax purposes (including
accrued, unpaid interest on the Original Notes to the date of the issuance of
the Exchange Notes).
Disposition
In general, a holder of Exchange Notes will recognize gain or loss upon the
sale, exchange or other taxable disposition of the Exchange Notes measured by
the difference between (1) the amount of cash and fair market value of property
received (reduced by any amounts attributable to accrued but unpaid interest,
which will be taxable as such) and (2) such holder's tax basis in the Exchange
Notes. Any such gain or loss will generally be capital gain or loss, provided
the Exchange Note was a capital asset in the hands of such holder, and will be
long-term capital gain or loss with respect to Exchange Notes held for more
than one year. The deductibility of capital losses is subject to limitations.
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Non-U.S. Holders
Under present United States federal income tax law, assuming certain
certification requirements are satisfied (which include identification of the
beneficial owner of the instrument), and subject to the discussion of backup
withholding below:
(a) payments of interest on the Exchange Notes to any Non-U.S. Holder
will not be subject to United States federal income or withholding tax,
provided that (1) the holder does not actually or constructively own 10% or
more of the total combined voting power of all classes of stock of Potlatch
entitled to vote, (2) the holder is not (i) a bank receiving interest
pursuant to a loan agreement entered into in the ordinary course of its
trade or business or (ii) a controlled foreign corporation that is related
to Potlatch through stock ownership, and (3) such interest payments are not
effectively connected with the conduct of a United States trade or business
of the holder; and
(b) a holder of Exchange Notes who is a Non-U.S. Holder will not be
subject to the United States federal income tax on gain realized on the
sale, exchange, or other disposition of Exchange Notes, unless (1) such
holder is an individual who is present in the United States for 183 days or
more during the taxable year and certain other requirements are met, or (2)
the gain is effectively connected with the conduct of a United States trade
or business of the holder.
Under currently effective Treasury regulations, the certification
requirements mentioned above generally require that either (1) the beneficial
owner of Exchange Notes certify to Potlatch (or its paying agent) that such
owner is a Non-U.S. Holder and provide such owner's name, address and taxpayer
identification number, if any, or (2) a securities clearing organization, bank
or other financial institution that holds customer securities in the ordinary
course of its trade or business and holds the Exchange Note on behalf of the
beneficial owner certify that such certificate has been received from the
beneficial owner and a copy of such certificate is furnished to Potlatch (or
its paying agent). The certification referred to above may be made on an
Internal Revenue Service Form W-8 or a substantially similar substitute form.
If a Non-U.S. Holder fails to satisfy the requirements described in (a)
above, interest on the Exchange Notes generally will be subject to United
States withholding tax at a 30% rate unless (1) an applicable income tax treaty
provides for the reduction or elimination of such withholding tax or (2) such
interest is considered to be effectively connected with a United States trade
or business conducted by such holder.
If interest on the Exchange Notes or gain realized on the disposition of the
Exchange Notes is effectively connected with a Non-U.S. Holder's conduct of a
United States trade or business, the Non-U.S. Holder generally will be subject
to United States federal income tax (and generally not United States
withholding tax) on such interest or gain in the same manner as if it were a
U.S. Holder. If such Non-U.S. Holder is a foreign corporation, such foreign
corporation's earnings and profits attributable to such effectively connected
income (and subject to certain adjustments) may, in certain circumstances, be
subject to an additional "branch profits tax" at a 30% rate, or if applicable,
a lower treaty rate.
Information Reporting and Backup Withholding
Potlatch will, where required, report to the holders of Exchange Notes and
the Internal Revenue Service the amounts of any interest paid on the Exchange
Notes in each calendar year and the amounts of federal tax withheld, if any,
with respect to such payments. A noncorporate U.S. Holder may be subject to
information reporting and to backup withholding at a rate of 31% with respect
to payments of principal and interest made on Exchange Notes, or on proceeds of
the disposition of Exchange Notes before maturity, unless such U.S. Holder
provides a correct taxpayer identification number or proof of an applicable
exemption, and otherwise complies with applicable requirements of the
information reporting and backup withholding rules.
Under temporary United States Treasury regulations, United States information
reporting requirements and backup withholding tax will generally not apply to
interest paid on the Exchange Notes to a Non-U.S. Holder
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at an address outside the United States. Payments by a United States office of
a broker of the proceeds of a sale of the Exchange Notes are subject to both
backup withholding at a rate of 31% and information reporting unless the holder
certifies its Non-U.S. Holder status under penalties of perjury and provides
its name and address or otherwise establishes an exemption. Information
reporting requirements (but not backup withholding) will also apply to payments
of the proceeds of sales of the Exchange Notes by foreign offices of United
States brokers, or foreign brokers with certain types of relationships to the
United States, unless the broker has documentary evidence in its records that
the holder is a Non-U.S. Holder and certain other conditions are met, or the
holder otherwise establishes an exemption.
Any amount withheld under the backup withholding rules may be refunded or
credited against the Non-U.S. Holder's United States federal income tax
liability, provided that the required information is furnished to the Internal
Revenue Service.
New Treasury Regulations Applicable to Non-U.S. Holders
On October 6, 1997, the United States Treasury Department issued final
Treasury regulations governing information reporting and the certification
procedures regarding withholding and backup withholding on certain amounts paid
to Non-U.S. Holders after December 31, 1999. The new Treasury regulations would
alter the procedures for claiming the benefits of an income tax treaty and may
change the certification procedures relating to the receipt by intermediaries
of payments on behalf of a beneficial owner of Exchange Notes. Prospective
investors should consult their tax advisors concerning the effect, if any, of
such new Treasury regulations on an investment in the Exchange Notes.
PLAN OF DISTRIBUTION
Based on existing interpretations of the Securities Act by the staff of the
SEC set forth in several no-action letters to third parties, and subject to the
immediately following sentence, Potlatch believes that the Exchange Notes to be
issued pursuant to the exchange offer may be offered for resale, resold and
otherwise transferred by the holders thereof (other than holders who are
broker-dealers) without further compliance with the registration and prospectus
delivery provisions of the Securities Act. However, any purchaser of Original
Notes who is an affiliate of Potlatch within the meaning of the Securities Act
or who intends to participate in the exchange offer for the purpose of
distributing the Exchange Notes, or any broker-dealer who purchased the
Original Notes from Potlatch to resell pursuant to Rule 144A or any other
available exemption under the Securities Act, (1) will not be able to rely on
the interpretations of the staff set forth in the above-mentioned no-action
letters, (2) will not be entitled to tender its Original Notes in the exchange
offer and (3) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or transfer of
the Original Notes unless the sale or transfer is made pursuant to an exemption
from such requirements. Potlatch does not intend to seek its own no-action
letter, and there can be no assurance that the SEC's staff would make a similar
determination with respect to the Exchange Notes as it has in such no-action
letters to third parties.
Each holder of the Original Notes (other than each holder specified in the
registration rights agreement) who wishes to exchange the Original Notes for
Exchange Notes in the exchange offer will be required to represent that (1) it
is not an affiliate of Potlatch within the meaning of the Securities Act, (2)
the Exchange Notes to be received by it were acquired in the ordinary course of
its business and (3) at the time of the exchange offer, it has not engaged in,
does not intend to engage in, and has no arrangement or understanding with any
person to participate in the distribution of the Exchange Notes within the
meaning of the Securities Act. In addition, in connection with any resales of
Exchange Notes, any Participating Broker-Dealer who acquired the Original Notes
for its own account as a result of market-making or other trading activities
must deliver a prospectus meeting the requirements of the Securities Act. Based
upon no-action letters from the SEC's staff to third parties, Potlatch believes
that Participating Broker-Dealers may fulfill their prospectus delivery
requirements with respect to the Exchange Notes (other than a resale of an
unsold allotment from the original sale of the Original Notes) with this
prospectus. Under the registration rights agreement, Potlatch is
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required to allow Participating Broker-Dealers to use this prospectus in
connection with the resale of such Exchange Notes for a period starting on the
Expiration Date and ending on the close of business 180 days after the
Expiration Date.
Potlatch will not receive any proceeds from any sale of Exchange Notes by
brokers-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the exchange offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any broker-
dealer or the purchasers of any such Exchange Notes. Any broker-dealer that
resells Exchange Notes that were received by it for its own account pursuant to
the exchange offer and any broker or dealer that participates in a distribution
of such Exchange Notes may be deemed to be an "underwriter" within the meaning
of the Securities Act and any profit of any such resale of Exchange Notes and
any commissions or concessions received by any such Persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date, Potlatch will promptly
send additional copies of this prospectus and any amendment or supplement to
this prospectus to any broker-dealer that requests such documents in the Letter
of Transmittal. Potlatch will pay its own expenses incurred in connection in
the performance of its obligations in the exchange offer other than commissions
or concessions of any brokers or dealers and other than certain taxes and will
indemnify the holders of the Exchange Notes (including any broker-dealers)
against certain liabilities, including liabilities under the Securities Act.
WHERE YOU CAN FIND MORE INFORMATION
Potlatch Corporation files reports, proxy statements and other information
with the SEC. You may read and copy any document Potlatch files at the SEC's
public reference rooms in Washington, D.C., Chicago, Illinois, and New York,
New York or access such documents electronically on the internet at
http://www.sec.gov. Please call the SEC at 1-800-SEC-0330 for more information
on the public reference rooms and their copy charges. In addition, reports,
proxy statements and other information about Potlatch are available for
inspection at the New York Stock Exchange, Inc., 20 Broad Street, New York, New
York, 10005, the Chicago Stock Exchange, 440 South LaSalle Street, Chicago,
Illinois, 60605, and the Pacific Stock Exchange, 301 Pine Street,
San Francisco, California 94104.
If Potlatch is not subject to the informational requirements of the Exchange
Act, Potlatch will also provide to holders of the Notes reports and other
information satisfying the requirements of Rule 144A(d)(4) in connection with
resales of the Notes.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents previously filed with the SEC are hereby incorporated
by reference into this prospectus:
(1) Potlatch's Annual Report on Form 10-K for the year ended December 31,
1998, and
(2) Potlatch's Current Reports on Form 8-K dated January 28, 1999, March
31, 1999 and April 9, 1999.
All documents filed by Potlatch pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act after the date of this prospectus and prior to the
termination of the offering of the Exchange Notes shall be deemed to be
incorporated by reference into this prospectus and to be part of this
prospectus from the date of filing thereof.
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Any statement contained in a document incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this prospectus to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated herein modifies or replaces such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this prospectus. Potlatch will
provide without charge to each person to whom a copy of this prospectus has
been delivered, and who makes a written or oral request, a copy of any and all
of the documents incorporated by reference in this prospectus (other than
exhibits unless such exhibits are specifically incorporated by reference into
such documents). Requests should be submitted in writing or by telephone to
Potlatch Corporation, 601 West Riverside Ave., Suite 1100, Spokane, Washington,
99201, Attention: Secretary (telephone (509) 835-1500).
LEGAL MATTERS
The validity of the Exchange Notes offered hereby will be passed upon for
Potlatch by Pillsbury Madison & Sutro LLP, San Francisco, California. Toni
Rembe, a member of Pillsbury Madison & Sutro LLP, is a director of Potlatch and
at December 31, 1998, owned 3,378 shares of Potlatch's Common Stock.
EXPERTS
The consolidated financial statements and schedule of Potlatch as of December
31, 1998 and 1997, and for each of the years in the three-year period ended
December 31, 1998, have been incorporated by reference herein in reliance upon
the report, incorporated by reference herein, of KPMG Peat Marwick LLP,
independent certified public accountants, and upon the authority of said firm
as experts in accounting and auditing.
27
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
$100,000,000
Potlatch Corporation
6.25% Notes due March 15, 2002
--------
EXCHANGE OFFER
[date]
--------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law provides for the
indemnification of officers, directors, and other corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933, as amended. Article Seventh of Potlatch's Restated
Certificate of Incorporation provides for indemnification to the fullest extent
permitted by the Delaware General Corporation Law. Potlatch also maintains
insurance policies which insure its officers and directors against certain
liabilities. Potlatch has also entered into agreements with its directors and
certain of its officers that will require Potlatch, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers to the fullest extent not prohibited
by law.
Item 21. Exhibits and Financial Statement Schedules
The following documents are filed herewith or incorporated herein by
reference.
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<C> <S>
3.1 Restated Certificate of Incorporation of Potlatch Corporation as of
May 1, 1987, (incorporated hereinby reference to Exhibit 3(i) of
Potlatch's Form 10-K for the year ended December 31, 1998, filed on
March 8, 1999)
3.2 By-Laws of Potlatch Corporation, as amended effective January 28, 1999
(incorporated herein by reference to Exhibit 3(c) of Potlatch's
Current Report on Form 8-K dated January 28, 1999)
4.1 Indenture dated as of March 15, 1999, by and between Potlatch
Corporation and U.S. Bank Trust National Association as Trustee
4.2 Registration Rights Agreement, dated as of March 15, 1999, by and
between Potlatch Corporation and Salomon Smith Barney Inc.
5.1 Opinion of Pillsbury Madison & Sutro LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of U.S. Bank Trust National Association
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and other Nominees
99.4 Form of Letter to Clients
</TABLE>
Item 22. Undertakings
1. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
2. The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11, or 13 of this form,
II-1
<PAGE>
within one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed subsequent
to the effective date of the registration statement through the date of
responding to the request.
3. The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
4. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements of filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Spokane, State of Washington, on the 20th day of
April, 1999.
POTLATCH CORPORATION
By: * John M. Richards
----------------------------------
John M. Richards
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons, in the capacities and
on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
----------------------------- ---------------------------------- --------------
<S> <C> <C> <C>
(i) Principal Executive Officer: Chairman of the Board and Chief April 20, 1999
*John M. Richards Executive Officer and Director
(ii) Principal Financial Officer: Senior Vice President, Finance and April 20, 1999
*Sandra T. Powell Chief Financial Officer
(iii) Principal Accounting Officer: Controller April 20, 1999
*Terry L. Carter
(iv) Directors:
*Richard A. Clarke Director April 20, 1999
*Kenneth T. Derr Director April 20, 1999
*George F. Jewett, Jr. Director April 20, 1999
*Richard B. Madden Director April 20, 1999
*Vivian W. Piasecki April 20, 1999
*Toni Rembe Director April 20, 1999
*John M. Richards Director April 20, 1999
*Reuben F. Richards Director April 20, 1999
*Richard M. Rosenberg Director April 20, 1999
*Robert G. Schwartz Director April 20, 1999
*L. Pendleton Siegel Director April 20, 1999
*Charles R. Weaver Director April 20, 1999
*Frederick T. Weyerhaeuser Director April 20, 1999
*William T. Weyerhaeuser Director April 20, 1999
</TABLE>
*By: /s/ Betty R. Fleshman
-----------------------------
Betty R. Fleshman
Attorney-in-Fact
II-3
<PAGE>
EXHIBIT INDEX
The following documents are filed herewith or incorporated herein by
reference
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibits
------- -----------------------
<C> <S>
3.1 Restated Certificate of Incorporation of Potlatch Corporation as of
May 1, 1987 (incorporated herein by reference to Exhibit 3(i) of
Potlatch's Form 10-K for the year ended December 31, 1998, filed on
March 8, 1999)
3.2 By-Laws of Potlatch Corporation, as amended effective January 28, 1999
(incorporated herein by reference to Exhibit 3(c) of Potlatch's
Current Report on Form 8-K dated January 28, 1999)
4.1 Indenture dated as of March 15, 1999, by and between Potlatch
Corporation and U.S. Bank Trust National Association as Trustee
4.2 Registration Rights Agreement, dated as of March 15, 1999, by and
between Potlatch Corporation and Salomon Smith Barney Inc.
5.1 Opinion of Pillsbury Madison & Sutro LLP
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)
24.1 Powers of Attorney
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of
1939 of U.S. Bank Trust National Association
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies
and other Nominees
99.4 Form of Letter to Clients
</TABLE>
II- 4
<PAGE>
Exhibit 4.1
- --------------------------------------------------------------------------------
POTLATCH CORPORATION
Issuer
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
-------------------------
Indenture
Dated as of March 15, 1999
-----------------------
- --------------------------------------------------------------------------------
<PAGE>
Certain Sections of this Indenture relating to
Sections 310 through 318 of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture Indenture
Act Section Section
- --------------- ---------
<S> <C>
ss.310(a)(1) ..................................................... 609
(a)(2) ..................................................... 609
(a)(3) ..................................................... Not Applicable
(a)(4) ..................................................... Not Applicable
(a)(5) ..................................................... 609
(b) ..................................................... 608; 610
ss.311(a) ..................................................... 613
(b) ..................................................... 613
ss.312(a) ..................................................... 701; 702(a)
(b) ..................................................... 702(b)
(c) ..................................................... 702(c)
ss.313(a) ..................................................... 703(a)
(a)(4) ..................................................... 101; 1004
(b) ..................................................... 703(a)
(c) ..................................................... 703(a)
(d) ..................................................... 703(b)
314(a) ..................................................... 704
(b) ..................................................... Not Applicable
(c)(1) ..................................................... 102
(c)(2) ..................................................... 102
(c)(3) ..................................................... Not Applicable
(d) ..................................................... Not Applicable
(e) ..................................................... 102
ss.315(a) ..................................................... 601
(b) ..................................................... 602
(c) ..................................................... 601
(d) ..................................................... 601
(e) ..................................................... 514
ss.316(a) ..................................................... 101
(a)(1)(A).................................................................. 502; 512
(a)(1)(B).................................................................. 513
(a)(2) ..................................................... Not Applicable
(b) ..................................................... 508
(c) ..................................................... 104(c)
ss.317(a)(l) ..................................................... 503
(a)(2) ..................................................... 504
(b) ..................................................... 1003
ss.318(a) ..................................................... 107
</TABLE>
- --------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Parties.........................................................................................................1
Recitals of the Company.........................................................................................1
ARTICLE ONE Definitions and Other Provisions
of General Application.................................................................................2
SECTION 101. Definitions..........................................................................2
"Act".........................................................................................2
"Affiliate"...................................................................................2
"Attributable Debt"...........................................................................2
"Authenticating Agent"........................................................................3
"Board of Directors"..........................................................................3
"Board Resolution"............................................................................3
"Business Day"................................................................................3
"Commission"..................................................................................3
"Company".....................................................................................3
"Company Request" or "Company Order"..........................................................3
"Consolidated Net Tangible Assets"............................................................4
"Corporate Trust Office"......................................................................4
"Corporation".................................................................................4
"Defaulted Interest"..........................................................................4
"Depositary"..................................................................................4
"Event of Default"............................................................................4
"Exchange Offer"..............................................................................4
"Exchange Offer Registration Statement".......................................................4
"Exchange Securities".........................................................................4
"Funded Indebtedness".........................................................................5
"Global Security".............................................................................5
"Holder"......................................................................................5
"Indebtedness"................................................................................5
"Indenture"...................................................................................5
"Interest Payment Date".......................................................................5
"Lien"........................................................................................5
"Maturity"....................................................................................5
"Offered Securities"..........................................................................6
"Officers' Certificate".......................................................................6
"Opinion of Counsel"..........................................................................6
"Outstanding".................................................................................6
"Paying Agent"................................................................................7
"Person"......................................................................................7
"Predecessor Security"........................................................................7
"Principal Property"..........................................................................7
"Prospectus"..................................................................................7
"QIB" or "Qualified Institutional Buyer"......................................................8
"Registration Default"........................................................................8
</TABLE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-i-
<PAGE>
<TABLE>
<S> <C>
"Registration Rights Agreement"...............................................................8
"Registration Statement"......................................................................8
"Regular Record Date".........................................................................8
"Regulation S"................................................................................8
"Responsible Officer".........................................................................8
"Rule 144"....................................................................................8
"Rule 144A"...................................................................................8
"Rule 144(k)".................................................................................9
"Securities"..................................................................................9
"Securities Act"..............................................................................9
"Securities Custodian"........................................................................9
"Security Register" and "Security Registrar"..................................................9
"Shelf Registration Period"...................................................................9
"Shelf Registration Statement"................................................................9
"Special Record Date".........................................................................9
"Stated Maturity".............................................................................9
"Subsidiary"..................................................................................9
"Timberlands"................................................................................10
"Time of Delivery"...........................................................................10
"Transfer Restricted Securities".............................................................10
"Transfer Restriction Termination Date"......................................................10
"Trust Indenture Act"........................................................................10
"Trustee"....................................................................................10
"United States"..............................................................................10
"U.S. Government Obligations"................................................................10
"Vice President".............................................................................10
SECTION 102. Compliance Certificates and Opinions................................................10
SECTION 103. Form of Documents Delivered to Trustee..............................................11
SECTION 104. Acts of Holders; Record Dates.......................................................12
SECTION 105. Notices, Etc., to Trustee and Company...............................................13
SECTION 106. Notice to Holders; Waiver...........................................................13
SECTION 107. Conflict with Trust Indenture Act...................................................14
SECTION 108. Effect of Headings and Table of Contents............................................14
SECTION 109. Successors and Assigns..............................................................14
SECTION 110. Separability Clause.................................................................14
SECTION 111. Benefits of Indenture...............................................................15
SECTION 112. Governing Law.......................................................................15
SECTION 113. Legal Holidays......................................................................15
SECTION 114. No Recourse Against Others..........................................................15
ARTICLE TWO Security Forms.....................................................................................15
SECTION 201. Forms Generally.....................................................................15
SECTION 202. Form of Face of Security............................................................16
SECTION 203. Form of Reverse of Security.........................................................19
SECTION 205. Securities in Global Form...........................................................23
</TABLE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-ii-
<PAGE>
<TABLE>
<S> <C>
ARTICLE THREE The Securities...................................................................................23
SECTION 301. Title and Terms.....................................................................23
SECTION 302. Denominations.......................................................................24
SECTION 303. Execution, Authentication, Delivery and Dating......................................24
SECTION 304. Temporary Securities................................................................25
SECTION 305. Registration, Registration of Transfer and Exchange, Restrictions on Transfer.......26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities....................................32
SECTION 307. Payment of Interest; Interest Rights Preserved......................................33
SECTION 308. Persons Deemed Owners...............................................................34
SECTION 309. Cancellation........................................................................35
SECTION 310. Computation of Interest.............................................................35
ARTICLE FOUR Satisfaction and Discharge........................................................................35
SECTION 401. Satisfaction and Discharge of Indenture.............................................35
SECTION 402. Application of Trust Money..........................................................37
SECTION 403. Satisfaction, Discharge and Defeasance of Securities................................37
ARTICLE FIVE Remedies..........................................................................................39
SECTION 501. Events of Default...................................................................39
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................................40
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.....................41
SECTION 504. Trustee May File Proofs of Claim....................................................42
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.........................43
SECTION 506. Application of Money Collected......................................................43
SECTION 507. Limitation on Suits.................................................................43
SECTION 508. Unconditional Right of Holders to Receive Principal and Interest....................44
SECTION 509. Restoration of Rights and Remedies..................................................44
SECTION 510. Rights and Remedies Cumulative......................................................45
SECTION 511. Delay or Omission Not Waiver........................................................45
SECTION 512. Control by Holders..................................................................45
SECTION 513. Waiver of Past Defaults.............................................................45
SECTION 514. Undertaking for Costs...............................................................46
SECTION 515. Waiver of Stay or Extension Laws....................................................46
ARTICLE SIX The Trustee........................................................................................46
SECTION 601. Certain Duties and Responsibilities.................................................47
SECTION 602. Notice of Defaults..................................................................48
SECTION 603. Certain Rights of Trustee...........................................................48
</TABLE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iii-
<PAGE>
<TABLE>
<S> <C>
SECTION 604. Not Responsible for Recitals or Issuance of Securities..............................50
SECTION 605. May Hold Securities.................................................................50
SECTION 606. Money Held in Trust.................................................................50
SECTION 607. Compensation and Reimbursement......................................................50
SECTION 608. Disqualification; Conflicting Interests.............................................51
SECTION 609. Corporate Trustee Required; Eligibility.............................................51
SECTION 610. Resignation and Removal; Appointment of Successor...................................52
SECTION 611. Acceptance of Appointment by Successor..............................................53
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.........................53
SECTION 613. Preferential Collection of Claims Against Company...................................54
SECTION 614. Appointment of Authenticating Agent.................................................54
ARTICLE SEVEN Holders' Lists and Reports by Trustee and Company................................................56
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders...........................56
SECTION 702. Preservation of Information; Communications to Holders..............................56
SECTION 703. Reports by Trustee..................................................................57
SECTION 704. Reports by Company..................................................................57
</TABLE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-iv-
<PAGE>
<TABLE>
<S> <C>
ARTICLE EIGHT Consolidation, Merger, Conveyance, Transfer or Lease.............................................58
SECTION 801. Company May Consolidate, etc., Only on Certain Terms................................58
SECTION 802. Successor Corporation Substituted...................................................59
SECTION 803. Limitation on Lease of Properties as Entity.........................................59
ARTICLE NINE Supplemental Indentures...........................................................................59
SECTION 901. Supplemental Indentures Without Consent of Holder...................................59
SECTION 902. Supplemental Indentures With Consent of Holders.....................................60
SECTION 903. Execution of Supplemental Indentures................................................61
SECTION 904. Effect of Supplemental Indentures...................................................61
SECTION 905. Conformity with Trust Indenture Act.................................................61
SECTION 906. Reference in Securities to Supplemental Indentures..................................62
ARTICLE TEN Covenants..........................................................................................62
SECTION 1001. Payment of Principal and Interest......................................................62
SECTION 1002. Maintenance of Office or Agency........................................................62
SECTION 1003. Money for Securities Payments To Be Held in Trust...................................63
SECTION 1004. Corporate Existence....................................................................64
SECTION 1005. Limitations on Liens and Encumbrances..................................................64
SECTION 1006. Limitations on Sale and Leaseback Transactions.........................................67
SECTION 1007. Defeasance of Certain Obligations......................................................67
SECTION 1008. Statement by Officers as to Default....................................................69
SECTION 1009. Waiver of Certain Covenants............................................................69
</TABLE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-v-
<PAGE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-vi-
<PAGE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-vii-
<PAGE>
_________________
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
-viii-
<PAGE>
INDENTURE, dated as of March 15, 1999, among POTLATCH CORPORATION, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 601 West Riverside
Avenue, Suite 1100, Spokane, Washington 99201, and U.S. BANK TRUST NATIONAL
ASSOCIATION], a national banking association duly organized and existing under
the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance (i) from time to time in one or more
transactions exempt from, or not subject to, the registration provisions of the
Securities Act of 1933, as amended (the "Securities Act"), of its 6.25% Notes
due March 15, 2002 (the "Offered Securities") and (ii) in an exchange offer
registered under the Securities Act for the then outstanding Offered Securities,
of substantially identical series of 6.25% Notes due March 15, 2002(except for
the absence of the legend set forth in Section 305 manifesting the transfer
restrictions [and the terms with respect to the liquidated damage payments
applicable to the Offered Securities]) (the "Exchange Securities" and, together
with the "Offered Securities," the "Securities"). The Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
-1-
<PAGE>
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, as to any particular lease (other than a
cross-border or defeased lease arrangement) entered into after the date hereof
under which any Person is at the time liable and at any date as of which the
amount thereof is to be determined, the total net amount of rent required to be
paid by such Person under such lease during the remaining primary term thereof,
discounted to present values as of such time in accordance with generally
accepted accounting principles from the respective due dates thereof to such
date. The net amount of rent required to be paid under any such lease for any
-2-
<PAGE>
such period shall be the aggregate amount of the rent payable by the lessee with
respect to such period after excluding amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water and utility rates
and similar charges. In the case of any lease which is terminable by the lessee
upon the payment of a penalty, such net amount shall also include the amount of
such penalty, but no rent shall be considered as required to be paid under such
lease subsequent to the first date upon which it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
or the city in which the principal office of the Trustee is located are
authorized or obligated by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board
and Chief Executive Officer, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total amount of assets of
the Company and its consolidated Subsidiaries (less applicable reserves) after
deducting therefrom: (a) all current liabilities of the Company and its
consolidated Subsidiaries (excluding intercompany items among the Company and
its
-3-
<PAGE>
consolidated Subsidiaries and excluding any current liabilities constituting
Funded Indebtedness by reason of being renewable or extendable and excluding
deferred income taxes), and (b) goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles, such assets
and exclusions and deductions therefrom to be in such amounts, if any, as would
appear on a consolidated balance sheet of the Company and its consolidated
Subsidiaries as of the date of computation, prepared in accordance with
generally accepted accounting principles applied on a consistent basis as in
effect on the date of such computation.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee located at 180 East Fifth Street, St. Paul, Minnesota 55101 or such
other principal corporate office at which at any particular time its corporate
trust business shall be administered as to which the Trustee may give notice to
the Company.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means the Depositary of the Global Security representing
the Securities and any successor to such Depositary appointed pursuant to
Section 305(a). The Depositary initially shall be The Depository Trust Company,
a New York Corporation.
"Event of Default" has the meaning specified in Section 501.
"Exchange Offer" means the offer that may be made by the Company
pursuant to a Registration Rights Agreement to exchange Offered Securities for
Exchange Securities.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Securities Act with respect to
the Exchange Offer, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchange Securities" has the meaning set forth in the first recital
of this Indenture.
"Funded Indebtedness" means, with respect to any Corporation,
Indebtedness of such Corporation if such Indebtedness shall be payable more than
one year from the date of computation or shall be extendable or renewable at the
option of such Corporation to a time more than one year after the date
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of computation; and all guarantees (direct or indirect) of such Indebtedness of
others.
"Global Security" means a Security evidencing all or part of the
Securities, issued to the Depositary in accordance with Section 303 and bearing
the legend prescribed in Section 303(b).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of a Corporation means any and all obligations for
money borrowed which in accordance with generally accepted accounting principles
would be included on the liabilities side of a balance sheet of such Corporation
as of the date as of which such indebtedness was incurred.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Institutional Accredited Investor" means an institutional "accredited
investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act.
"Interest Payment Date" means, with respect to any Security, the
Stated Maturity of an installment of interest on such Security.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind (including any conditional sale or other title
retention agreement, and, except with respect to any lease, the filing of or
agreement to file any financing statement under the Uniform Commercial Code of
any jurisdiction).
"Liquidated Damages" has the meaning specified in Section 202.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration or otherwise.
"Offered Securities" has the meaning set forth in the first recital of
this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board and Chief Executive Officer, the President or a Vice President, and by
the Treasurer, an Assistant
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Treasurer, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities or portions thereof for whose payment (a)
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as Paying Agent) for the
Holders of such Securities; or (b) U.S. Government Obligations as contemplated
by Sections 401 and 403 in the necessary amount have been theretofore deposited
with the Trustee, in trust, for the Holders of such Securities; and
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf
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of the Company. The Company initially appoints the Trustee as Paying Agent under
the Indenture.
"Person" means any individual, Corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Property" means (a) any building, structure or other
facility used primarily for manufacturing and located in the United States, in
each case the gross book value (without deduction of any depreciation reserves)
of which on the date as of which the determination is being made shall exceed
10% of Consolidated Net Tangible Assets, and (b) any Timberlands in the United
States owned in fee or under contract for the purchase of the fee by the Company
or any Subsidiary other than such Timberlands in the aggregate not exceeding 10%
of the aggregate Timberlands acreage in the United States owned in fee or under
contract for the purchase of the fee by the Company and its Subsidiaries on the
date as of which any determination shall be made; provided, however, that the
term "Principal Property" shall not include any Timberlands, buildings,
structures, facilities or any portion of any of the foregoing which, in the
opinion of the Board of Directors as expressed in a Board Resolution, shall not
be of material importance to the total business conducted by the Company and its
Subsidiaries taken as an entirety; and provided, further, that the term
Principal Property shall not include any land, including without limitation
Timberlands, designated by the Board of Directors as being held primarily for
development or sale, or any land, including without limitation Timberlands, held
for the exploitation of minerals or mineral rights.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Offered Securities or the Exchange Securities, covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
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<PAGE>
"QIB" or "Qualified Institutional Buyer" means "Qualified
Institutional Buyer" as such term is defined in Rule 144A under the Securities
Act.
"Registration Default" has the meaning specified in Section 202.
"Registration Rights Agreement" means an agreement which may be
entered into from time to time between the Company and the holders of Offered
Securities or the broker or dealer offering such Offered Securities providing
for, among other things, an offer to exchange such Offered Securities for the
corresponding series of Exchange Securities and the filing of a Shelf
Registration Statement under the circumstances described therein.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Offered
Securities or the Exchange Securities pursuant to the provisions of any
Registration Rights Agreement, and amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the March 1 or September 1 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
"Responsible Officer", when used with respect to the Trustee, means
any officer within the Corporate Trust Department or any other successor group
of the Trustee, including any vice president, assistant vice president,
assistant secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer or employee to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144(k)" means Rule 144(k) under the Securities Act.
"Securities" has the meaning set forth in the first recital of this
Indenture.
"Securities Act" has the meaning set forth in the first recital of
this Indenture.
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<PAGE>
"Securities Custodian" means the Trustee, as custodian with respect to
Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Period" means the shorter of (i) two years (or, if
Rule 144(k) is amended to provide a shorter restrictive period, such shorter
period) [after the Time of Delivery of the Offered Securities] and (ii) such
period that will terminate when all the Offered Securities or Exchange
Securities, as applicable, covered by the applicable Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company which covers some or all of the Offered Securities or the
Exchange Securities, as applicable, on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the Commission,
and amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a Corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Timberlands" means real property that contains standing timber which
is (or upon the completion of the growth cycle then in process is expected to
become) of a commercial quantity and of merchantable quality.
"Time of Delivery" means the date on which the Offered Securities are
initially issued.
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"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 305(f) hereof.
"Transfer Restriction Termination Date" means the earlier of the first
date on which (i) the Securities (other than Securities acquired by the Company
or any Affiliate thereof since the issue date of such Securities) may be sold
pursuant to Rule 144(k) (or any successor provision) and (ii) all such
Securities have been exchanged or sold pursuant to an effective registration
statement.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"United States" means the United States of America (including the
District of Columbia) and its possessions.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States the payment of which is unconditionally
guaranteed by the United States.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirement set forth in
this Indenture.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates,
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statements, opinions or other instruments under this Indenture, they may, but
need not, be consolidated and form one instrument.
SECTION 104. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, by Board Resolution fix any day as the record date for the
purpose of determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted to be given or taken by Holders. If not set
by the Company prior to the first solicitation of a Holder made by any Person in
respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action.
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(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company, addressed to
the attention of its Secretary at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at such Holder's address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be
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made with the approval of the Trustee shall constitute a sufficient notification
for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Conflict with Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, and the Holders of Securities, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
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SECTION 112. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York.
SECTION 113. Legal Holidays.
--------------
In any case where any Interest Payment Date or Stated Maturity of any
Security shall not be a Business Day then (notwithstanding any other provision
of this Indenture or of the Securities) payment of interest or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the Interest Payment Date or at the
Stated Maturity, provided that no interest shall accrue for the period from and
after such Interest Payment Date or Stated Maturity, as the case may be.
SECTION 114. No Recourse Against Others.
--------------------------
No director, officer, employee, stockholder or Affiliate, as such, of the
Company shall have any liability for any obligation of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
---------------
The Securities and the Trustee's certificates of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner permitted by the rules of any securities exchange
on which the Securities may be listed, all as determined by the officers
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executing such Securities, as evidenced by their execution of such Securities.
SECTION 202. Form of Face of Security.
------------------------
POTLATCH CORPORATION
6.25% Note due March 15, 2002
CUSIP 737628AG2
No. 1 $100,000,000
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<PAGE>
Potlatch Corporation, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of One
Hundred Million Dollars on March 15, 2002, and to pay interest thereon from
March 15, 1999 or from the most recent Interest Payment Date to which interest
has been paid or duly provided for, semiannually on March 15 and September 15 in
each year, commencing September 15, 1999, at the rate of 6.25% per annum, until
the principal hereof is paid or made available for payment; provided, however,
in the event (each such event described in clauses (i) through (iii) below,
being referred to as a "Registration Default") that: (i) the Company is
permitted under the law and currently prevailing interpretations of the
Commission's staff to effect the Exchange Offer and the Exchange Offer
Registration Statement is not declared effective on or prior to the 180th day
following the Time of Delivery; (ii) the Registered Exchange Offer is not
consummated or the applicable Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Time of Delivery; or (iii)
after a Shelf Registration Statement is declared effective, (A) such Shelf
Registration Statement ceases to be effective prior to the end of the Shelf
Registration Period (except as permitted under the Registration Rights
Agreement); or (B) such Shelf Registration Statement or the related Prospectus
ceases to be useable in connection with resales of Securities covered by such
Shelf Registration Statement prior to the end of the Shelf Registration Period
(except as permitted under the Registration Rights Agreement) because (1) the
Company determines that any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, (2) the Company determines that it shall be
necessary to amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Securities Act or the Exchange Act or the rules
thereunder, or (3) the Company determines that it is advisable to suspend use of
the Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company, then, in addition to the stated interest set forth
in the title of this Security, liquidated damages ("Liquidated Damages") shall
accrue on this Security, over and above the interest rate set forth in the title
of this Security, following the occurrence of each Registration Default set
forth in clauses (i) and (ii) above from and including the next day following
each such Registration Default, in each case at a rate equal to 0.25% per annum;
provided, however, that in any case, if one or more Registration Defaults
referred to in clause (iii) above occurs and continues for more than 60 days
(whether or not consecutive) in any
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twelve-month period (the 61st day being referred to as the "Default Day") then
from the Default Day until the earlier of (i) the date such Shelf Registration
Statement is again deemed effective or is useable, (ii) the date that is the
second anniversary of the Time of Delivery (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period) or (iii) the date on
which all the Securities are sold pursuant to such Shelf Registration Statement,
Liquidated Damages shall accrue at a rate of 0.25% per annum; provided, further,
that the aggregate amount of Liquidated Damages attributable to one or more
Registration Defaults will in no event exceed 0.25% per annum. The Liquidated
Damages attributable to each Registration Default referred to in clauses (i) and
(ii) above shall cease to accrue from the date of effectiveness of the Exchange
Offer Registration Statement after such 180-day period, in the case of clause
(i) above, or the consummation of the Registered Exchange Offer or the date of
effectiveness of the applicable Shelf Registration Statement after such 225-day
period, in the case of clause (ii) above. The interest (and Liquidated Damages,
if any) so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
March 1 or September 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for ("Defaulted Interest") will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. The principal of and interest (and Liquidated
Damages, if any) on this Security will be payable (i) in the case this Security
is a Global Security registered in the name of a Depositary or its nominee, to
such Depositary or such nominee by transfer to an account maintained by the
payee located in the United States and (ii) in the case this Security is in
definitive registered form, to the person in whose name the Security is
registered at the office or agency of the Company maintained for that purpose in
the Borough of Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; provided, however, that, except with respect to a
Global Security, at the option of the Company payment of interest may be made by
check mailed to the
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address of the Person entitled thereto as such address shall appear in the
Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
POTLATCH CORPORATION
By________________________________
Attest:
__________________________
SECTION 203. Form of Reverse of Security.
---------------------------
This Security is one of a duly authorized issue of securities of the
Company designated as its 6.25% Notes due March 15, 2002 (herein called the
"Securities"), limited in aggregate principal amount to $100,000,000, issued and
to be issued under an Indenture, dated as of March 15, 1999 (herein called the
"Indenture"), between the Company and U.S. Bank Trust National Association, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
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<PAGE>
If an Event of Default shall occur and be continuing, the principal of all
the Securities may be declared due and payable in the manner and with the effect
provided in the Indenture.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default, the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities shall have
made written request to the Trustee and offered the Trustee reasonable
indemnity, the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Securities a direction
inconsistent with such request, and the Trustee shall have failed to institute
any such proceeding for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal hereof
or any interest (and Liquidated Damages, if any) hereon on or after the
respective due dates expressed herein.
The Indenture contains provisions for defeasance at any time of (a) the
entire obligations of the Company on this Note and, with certain exceptions, all
of the provisions of the Indenture as it relates to this Note and (b) certain
restrictive covenants in the Indenture, upon compliance by the Company with
certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate principal amount of the Securities at the
time Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest (and Liquidated
Damages, if
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any) on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in the Borough of Manhattan, The City of New York, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form
without coupons in minimum denominations of $100,000 and integral multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities are exchangeable for a like aggregate
principal amount of Securities of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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<PAGE>
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of Securities held in
*________ book-entry or *_______ definitive form by ________________ (the
"Transferor").
The Transferor*:
[_] has requested the Trustee by written order to deliver in exchange for its
beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion
thereof indicated above); or
[_] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities and as provided in Section
305 of such Indenture, the transfer of this Security does not require
registration under the Securities Act of 1933, as amended (the "Securities Act")
because:*
[_] Such Security is being acquired for the Transferor's own account, without
transfer (in satisfaction of Section 305
(b)(ii)(A) or Section 305(e)(i)(A) of the Indenture).
[_] Such Security is being transferred to a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) in reliance on Rule 144A (in
satisfaction of Section 305(b)(ii)(B) or Section 305(e)(i)(B) of the
Indenture) or pursuant to an exemption from registration in accordance with
Rule 904 under the Securities Act (in satisfaction of Section 305(b)(ii)(B)
or Section 305(e)(i)(B) of the Indenture.)
[_] Such Security is being transferred in accordance with Rule 144 under the
Securities Act, or pursuant to an effective registration statement under
the Securities Act (in satisfaction of Section 305(b)(ii)(B) or Section
305(e)(i)(B) of the Indenture).
[_] Such Security is being transferred in reliance on and in compliance with an
exemption from the registration requirements of the Securities Act, other
than Rule 144A, 144 or Rule 904 under the Securities Act, and any
applicable state securities laws. An Opinion of Counsel to
the effect that such transfer does not require registration under the Securities
Act accompanies this Certificate (in
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<PAGE>
satisfaction of Section 305(b)(ii)(C) or Section 305(e)(i)(C) of the Indenture).
SECTION 204. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
This is one of the Securities referred to in the within-mentioned
Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
By_________________________________________
Authorized Officer
SECTION 205. Securities in Global Form.
-------------------------
A Security in global form shall represent such of the Outstanding
Securities as shall be specified therein and may provide that it shall represent
the aggregate amount of Outstanding Securities from time to time endorsed
thereon and that the aggregate amount of Outstanding Securities represented
thereby may from time to time be reduced to reflect exchanges. Any endorsement
of a Security in global form to reflect the amount, or any increase or decrease
in the amount, of Outstanding Securities represented thereby shall be made by
the Trustee and in such manner as shall be specified in such Security. Any
instructions by the Company with respect to a Security in global form, after its
initial issuance, shall be in writing but need not comply with Section 102.
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
---------------
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is limited to $100,000,000 except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306 or 906.
The Securities shall be known and designated as the "6.25% Notes due March
15, 2002" of the Company. Their Stated Maturity shall be March 15, 2002, and
they shall bear interest at the rate of 6.25% per annum, from March 15, 1999 or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, as the case may be, payable semiannually on
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September 15 and March 15, commencing September 15, 1999, until the principal
thereof is paid or made available for payment.
The principal of and interest on any Security will be payable (i) in the
case such Security is a Global Security registered in the name of a Depositary
or its nominee, to such Depositary or such nominee by transfer to an account
maintained by the payee located in the United States and (ii) in the case such
Security is in definitive registered form, to the person in whose name the
Security is registered at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, except
with respect to a Global Security, at the option of the Company payment of
interest may be made by check mailed by first class mail to the address of the
Person entitled thereto as such address shall appear in the Security Register.
SECTION 302. Denominations.
-------------
The Securities shall be issuable only in registered form without coupons
and only in minimum denominations of $100,000 and integral multiples of $1,000
in excess thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a The Securities shall be executed on behalf of the Company by its
Chairman of the Board and Chief Executive Officer, its President, a Vice
President or its Treasurer, under its corporate seal reproduced thereon attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities; and the Trustee in accordance with such Company
Order shall authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Each Security shall be dated the date of its authentication.
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<PAGE>
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
(b The Company shall execute and the Trustee shall authenticate and
deliver one or more Global Securities that (i) shall represent an aggregate
amount equal to the aggregate principal amount of the Outstanding Securities,
(ii) shall be registered in the name of the Depositary or the nominee of the
Depositary, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, and (iv) shall bear a legend
substantially to the following effect: "Unless this certificate is presented by
an authorized representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company (as defined below) or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein."
(c The Depositary must, at all times while it serves as such Depositary,
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
SECTION 304. Temporary Securities.
--------------------
Pending the preparation of definitive Securities, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. Any such temporary Security shall be in
global form. Every such temporary Security shall be executed by the Company and
shall be authenticated and delivered by the Trustee upon the same conditions and
in substantially the same manner, and with the same effect, as the definitive
Security or Securities in lieu of which it is issued.
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<PAGE>
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 1002, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Securities represented thereby
pursuant to this Section 304 or Section 305, the temporary Global Security shall
be endorsed by the Trustee to reflect the reduction of the principal amount
evidenced thereby, whereupon the principal amount of such temporary Global
Security shall be reduced for all purposes by the amount so exchanged and
endorsed.
SECTION 305. Registration, Registration of Transfer and Exchange, Restrictions
-----------------------------------------------------------------
on Transfer
-----------
(a (i) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers of Securities as herein provided. To permit
registrations, transfers and exchanges of Securities, the Company shall execute
and the Trustee shall authenticate definitive Securities and Global Securities
at the Security Registrar's request.
(ii) No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304 or 906, not involving any transfer.
(iii) Notwithstanding any other provision of this Section, unless and
until it is exchanged in whole or in part for the individual Securities
represented thereby, a Global Security
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<PAGE>
representing all or a portion of the Securities may not be transferred except as
a whole by the Depositary to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary or a nominee of
such successor Depositary.
(iv) All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
(v) Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount.
(vi) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
(vii) Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(viii) Notwithstanding any other provision of this Indenture (other than
clause (e) of this Section 305), any Global Security shall be exchangeable
pursuant to this Section 305 for Securities registered in the names of Persons
other than the Depositary for such Security or its nominee only if (A) the
Depositary notifies the Company that it is unwilling or unable to continue as
depositary or if at any time the Depositary shall no longer be registered as a
clearing agency in good standing under the Securities Exchange Act of 1934, as
amended, or other applicable statute or regulation and a successor depositary is
not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such condition, as the case may be, (B) the Company
determines that the Securities shall no longer be represented by a Global
Security, or (C) any event shall have happened and be continuing which, after
notice
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<PAGE>
or lapse of time, or both, would become an Event of Default and the beneficial
owners representing a majority in aggregate principal amount of the Securities
represented by the Global Security advise the Depositary to cease acting as
depositary and the Depositary so advises the Company in writing. In such event
the Company will execute and the Trustee, upon receipt of a Company Order, will
authenticate and deliver Securities in definitive registered form, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security whereupon the
Global Security shall be canceled by the Trustee. Such Securities in definitive
registered form issued in exchange for the Global Security pursuant to this
Section 305 shall be registered in such names and issued in such minimum
authorized denominations of $100,000, or any integral multiple of $1,000 in
excess thereof, as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Persons in whose names such Securities are
so registered.
(b) When definitive Securities are presented by a Holder to the Security
Registrar with a request: (x) to register the transfer of the definitive
Securities; or (y) to exchange such definitive Securities for an equal principal
amount of definitive Securities of other authorized denominations, the Security
Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met; provided, however, that the
definitive Securities presented or surrendered for register of transfer or
exchange: (i) shall be duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Security Registrar duly executed by such
Holder or by his attorney, duly authorized in writing; and (ii) in the case of a
definitive Security that is a Transfer Restricted Security, such request shall
be accompanied by the following additional information and documents, as
applicable: (A) if such Transfer Restricted Security is being delivered to the
Security Registrar by a Holder for registration in the name of such Holder,
without transfer, a certification to that effect from such Holder (in
substantially the form of the "Certificate to be Delivered Upon Exchange or
Registration of Transfer of Securities" set forth in Section 203); or (B) if
such Transfer Restricted Security is being transferred to a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) in
accordance with Rule 144A under the Securities Act or pursuant to an exemption
from registration in accordance with Rule 144 or Rule 904 under the Securities
Act or pursuant to an effective registration statement under the Securities Act,
a certification to that effect from such Holder (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in Section 203) or (C) if such Transfer Restricted
Security is being transferred in reliance on another exemption from the
registration requirements
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<PAGE>
of the Securities Act or the securities laws of any other applicable
jurisdiction, a certification to that effect from such Holder (in substantially
the form of the "Certificate to be Delivered Upon Exchange or Registration of
Transfer of Securities" set forth in Section 203) and an Opinion of Counsel from
such Holder or the transferee reasonably acceptable to the Company and to the
Security Registrar to the effect that such transfer is in compliance with the
Securities Act.
(c) A definitive Security may not be exchanged for a beneficial interest
in a Global Security except upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a definitive Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with: (i) if such definitive Security is a Transfer Restricted
Security, a certification from the Holder thereof (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in Section 203) to the effect that such definitive
Security is being transferred by such Holder to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) in accordance with
Rule 144A under the Securities Act; and (ii) whether or not such definitive
Security is a Transfer Restricted Security, written instructions from the Holder
thereof directing the Trustee to make, or to direct the Security Custodian to
make, an endorsement on the Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global Security,
in which case the Trustee shall cancel such definitive Security in accordance
with Section 309 hereof and cause, or direct the Security Custodian to cause, in
accordance with the standing instructions and procedures existing between the
Depositary and the Security Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased accordingly. If no
Global Securities are then outstanding, the Company shall issue and, upon
receipt of a Company Order in accordance with Section 303 hereof, the Trustee
shall authenticate a new Global Security in the appropriate principal amount.
(d) The transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with this
Indenture and the procedures of the Depositary therefor, which shall include
restrictions on transfer comparable to those set forth herein to the extent
required by the Securities Act.
(e) (i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a definitive Security. Upon
receipt by the Trustee of written instructions or such other form of
instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having a beneficial interest in a Global
Security, and, in the case of a Transfer Restricted Security, the
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following additional information and documents (all of which may be submitted by
facsimile): (A) if such beneficial interest is being transferred to the Person
designated by the Depositary as being the beneficial owner, a certification to
that effect from such Person (in substantially the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in Section 203) or (B) if such beneficial interest is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under the Securities
Act) in accordance with Rule 144A under the Securities Act or pursuant to an
exemption from registration in accordance with Rule 144 or Rule 904 under the
Securities Act or pursuant to an effective registration statement under the
Securities Act, a certification to that effect from the transferor (in
substantially the form of "Certificate to be Delivered Upon Exchange or
Registration of Transfer of Securities" set forth in Section 203) or (C) if such
beneficial interest is being transferred in reliance on another exemption from
the registration requirements of the Securities Act or the securities laws of
any other applicable jurisdiction, a certification to that effect from the
transferor (in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in Section 203)
and an Opinion of Counsel from the transferee or transferor reasonably
acceptable to the Company and to the Security Registrar to the effect that such
transfer is in compliance with the Securities Act, in which case the Trustee or
the Security Custodian, at the direction of the Trustee, shall, in accordance
with the standing instructions and procedures existing between the Depository
and the Security Custodian, cause the aggregate principal amount of Global
Securities to be reduced accordingly and, following such reduction, the Company
shall execute and, upon receipt of a Company Order in accordance with Section
303 hereof, the Trustee shall authenticate and deliver to the transferee a
definitive Security in the appropriate principal amount. Securities transferred
to an Institutional Accredited Investor shall be issued as definitive Securities
and may not be represented by a Global Security. In addition to the foregoing,
upon any transfer of a Transfer Restricted Security to an Institutional
Accredited Investor, such Institutional Accredited Investor shall, prior to such
transfer, furnish to the Company and/or the Trustee a signed letter containing
representations and agreements relating to restrictions on transfer
substantially in the form set forth in Schedule 305(f)(iv) to this Indenture.
(ii) Definitive Securities issued in exchange for a beneficial interest in
a Global Security pursuant to this Section 305(e) shall be registered in such
names and in such authorized denominations as the Depository, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Definitive Securities to
the Person s in whose names such Securities are so registered.
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<PAGE>
(f)(i) Except as permitted by the following paragraphs (ii) and (iii), each
Security certificate evidencing definitive Securities and Global Securities (and
all Securities issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (2) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR THIS NOTE A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH
LETTER CAN BE OBTAINED FROM THE TRUSTEE), (3) IN AN OFFSHORE TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES ACT OR
(4) PURSUANT TO AN EXEMPTION FROM THE REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES."
(ii) Upon any sale or transfer of a Transfer Restricted Security
(including any Transfer Restricted Security represented by a Global Security)
pursuant to Rule 144 under the Securities Act or pursuant to an effective
registration statement under the Securities Act: (A) in the case of any Transfer
Restricted Security that is a definitive Security, the Security Registrar shall
permit the Holder thereof to exchange such Transfer Restricted Security for a
definitive Security that does not bear the legend set forth in (i) above and
rescind any restriction on the transfer of such Transfer Restricted Security;
and (B) in the case of any Transfer Restricted Security represented by a Global
Security, such Transfer Restricted Security shall not be required to bear the
legend set forth in (i) above, but shall continue to be subject to the
provisions of Section 305(e) hereof; provided, however, that with respect to any
request for an exchange of a Transfer Restricted Security that is represented by
a Global Security for a definitive Security that does not bear the legend set
forth in (i) above, which request is made in reliance upon Rule 144, the Holder
thereof shall certify in writing to the Security Registrar that such request is
being made pursuant to Rule 144 (such certification to be substantially in the
form of the "Certificate to be Delivered Upon Exchange or Registration of
Transfer of Securities" set forth in Section 203).
(iii) Notwithstanding the foregoing, upon consummation of the Exchange
Offer, the Company shall issue and, upon receipt of
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a Company Order in accordance with Section 303 hereof, the Trustee shall
authenticate Exchange Securities in exchange for Offered Securities accepted for
exchange in the Exchange Offer, which Exchange Securities shall not bear the
legend set forth in (i) above, and the Security Registrar shall rescind any
restriction on the transfer of such Securities, in each case unless the Holder
of such Offered Securities is either (A) a broker-dealer, (B) a Person
participating in the distribution of the Offered Securities or (C) a Person who
is an affiliate (as defined in Rule 144A) of the Company.
(iv) The letter required to be provided pursuant to paragraph (i) above
shall be substantially in the form of Schedule 305(f)(iv) hereto.
(g) At such time as all beneficial interests in Global Securities have
been exchanged for definitive Securities, redeemed, repurchased or canceled, all
Global Securities shall be returned to or retained and canceled by the Trustee
in accordance with Section 309 hereof. At any time prior to such cancellation,
if any beneficial interest in a Global Security is exchanged for definitive
Securities, redeemed, repurchased or canceled, the Trustee or the Security
Custodian, at the direction of the Trustee, shall, in accordance with the
standing instructions and procedures existing between the Depositary and the
Security Custodian, cause the aggregate amount of Global Securities to be
reduced accordingly.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and principal amount and bearing a number not
contemporaneously usly outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
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Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed
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payment and not less than 10 days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each Holder
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of and (subject to Section
307) interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
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SECTION 309. Cancellation.
------------
All Securities surrendered for payment or registration of transfer or
exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly canceled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Securities shall be computed on the basis of a 360-day year
of twelve 30-day months.
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein
expressly provided for), and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered (other than
(i) Securities which have been destroyed, lost or stolen and which have
been replaced or paid as provided in Section 306 and (ii) Securities for
whose payment money has theretofore been deposited in trust or segregated
and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are deemed paid and discharged pursuant to Section 403, as
applicable,
and the Company, in the case of (i) or (ii) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust for the purpose an
amount of (a) money, or (b) in the case of (ii) above non-callable U.S.
Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide not later
than one day before the Stated Maturity money in an amount, or (c) a
combination of money or non-callable U.S. Government Obligations as
provided in (a) and (b) above, in each case sufficient, in the opinion of a
nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge the entire Indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money or U.S.
Government Obligations shall have been deposited with the Trustee pursuant to
subclause (B) of Clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
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SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all money
or U.S. Government Obligations deposited with the Trustee pursuant to Section
401, 403 or 1007 shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders entitled thereto, of
the principal and interest on such Securities for whose payment such money has
been deposited with the Trustee.
SECTION 403. Satisfaction, Discharge and Defeasance of Securities.
----------------------------------------------------
The Company shall be deemed to have paid and discharged the entire
Indebtedness on all the Outstanding Securities on the 93rd day after the date of
the deposit referred to in subparagraph (e) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company Request
execute proper instruments furnished to it acknowledging the same), except as
to:
(a) the rights of Holders of Securities to receive, from the trust funds
described in subparagraph (e) hereof, payment of the principal of and each
installment of interest on (including Liquidated Damages, if any) the
Outstanding Securities on the Stated Maturity of such principal or installment
of interest;
(b) the Company's obligations with respect to such Securities under
Sections 305, 306, 1002 and 1003;
(c) the Company's obligations with respect to the Trustee under Section
607; and
(d) the rights, powers, trust and immunities of the Trustee under Section
402;
provided that the following conditions shall have been satisfied:
(e) the Company has deposited or caused to be irrevocably deposited with
the Trustee as trust funds in trust, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities, (i) money in
an amount, or (ii) non-callable U.S. Government Obligations which through the
payment of interest (including Liquidated Damages, if any) and principal in
respect thereof in accordance with their terms will provide not later than one
day before the due date of any payment money in an amount or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized
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firm of independent certified public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge the
principal of and each installment of principal and interest (including
Liquidated Damages, if any) on the Outstanding Securities on the Stated Maturity
of such principal or installment of interest (including Liquidated Damages, if
any);
(f) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(g) such provision would not cause any Outstanding Securities then listed
on the New York Stock Exchange or other securities exchange to be delisted as a
result thereof;
(h) no Event of Default or event which with notice or lapse of time would
become an Event of Default shall have occurred and be continuing on the date of
such deposit or during the period ending on the 93rd day after such date;
(i) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel to the effect that the Company has received from, or there
has been published by, the Internal Revenue Service a ruling to the effect that
Holders of the Securities will not recognize income, gain or loss for Federal
income tax purposes as a result of such deposit, defeasance and discharge and
will be subject to Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(j) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent provided for
relating to the defeasance contemplated by this Section have been complied with.
ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(1) default in the payment of any interest and Liquidated Damages, if any,
upon any Security when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of any Security at its
Maturity; or
(3) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(4) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in an involuntary case or proceeding in respect of
the Company under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
(5) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
an involuntary case or proceeding in respect of the Company under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it
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in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities may declare the principal of all the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such declaration
such principal shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate
borne by the Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the principal of
Securities which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a period of
30 days, or
(2) default is made in the payment of the principal of any Security at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest, and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at the rate borne by the Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
-----------------------------------------------------------
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal
and interest, respectively; and
THIRD: The balance, if any, to the Company.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Security shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
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SECTION 508. Unconditional Right of Holders to Receive Principal and Interest.
----------------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and (subject to Section 307) interest on such
Security on the respective Stated Maturities expressed in such Security and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
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SECTION 512. Control by Holders.
------------------
The Holders of a majority in aggregate principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
---------------------
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided, that the provisions of this Section shall not apply to
any suit instituted by the Company, to any suit instituted by the Trustee, to
any suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the Outstanding Securities, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Stated Maturity.
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SECTION 515. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
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(1) this subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the
Securities; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
------------------
Within 90 days after the occurrence of any default hereunder, the Trustee
shall transmit by mail to all Holders of Securities notice of such default
hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment
of the principal of or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors or Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interest of the Holders of Securities; and provided, further, that in the
case of any default of the character specified in Section 501(3), no such notice
to Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
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SECTION 603. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of Indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be
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responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(h) except with respect to Section 501, the Trustee shall have no duty to
inquire as to the performance of the Company with respect to the covenants
contained in Article Five. In addition, the Trustee shall not be deemed to have
knowledge of an Event of Default except (i) any Default or Event of Default
occurring pursuant to Section 501(1) or 501(2) or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge; and
(i) delivery of reports, information and documents to the Trustee under
Section 704 is for informational purposes only and the Trustee's receipt of the
foregoing shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of their covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer's Certificates).
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
-------------------
The Trustee, any Paying Agent, any Security Registrar, any Authenticating
Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 606. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company.
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SECTION 607. Compensation and Reimbursement.
------------------------------
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $25,000,000 (or be a member of a Bank
Holding Company with a combined capital and surplus of at least $50,000,000).
If such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of applicable supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
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SECTION 610. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, delivered
to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, except when the Trustee's duty to resign
is stayed in accordance with the provisions of Trust Indenture Act Section
310(b), or
(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Company,
by a Board Resolution,
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shall promptly appoint a successor Trustee. If, within 90 days after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
aggregate principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee to all Holders in the
manner provided in Section 106. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder. Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
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Any Corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
Corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
Corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
-------------------------------------------------
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
-----------------------------------
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The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer, or pursuant to
Section 306, and Securities so authenticated shall be entitled to the benefits
of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Whenever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such references shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such Corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment to all Holders in the manner provided in Section
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106. Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities described in the within-mentioned Indenture.
U.S. BANK TRUST NATIONAL ASSOCIATION,
As Trustee
By__________________________,
As Authenticating Agent
By___________________________
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date, and
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(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
excluding from any such list names and addresses received by the Trustee in its
- ---------
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
------------------
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which the
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when the Securities are listed on any stock exchange.
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SECTION 704. Reports by Company.
------------------
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Corporation
or convey or transfer its properties and assets substantially as an entirety to
any Person, unless:
(1) the Corporation formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer the properties
and assets of the Company substantially as an entirety shall be a Corporation
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
and interest (including Liquidated Damages, if any) on all the Securities and
the performance or observance of every covenant of this Indenture on the part of
the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing;
(3) if, as a result of any such consolidation or merger or such conveyance
or transfer, properties or assets of the Company would become subject to a Lien
which would not be permitted by this Indenture, the Company or such successor
Corporation or Person, as the case may be, shall take such steps as shall be
necessary effectively to secure the Securities equally and ratably with (or, at
the option of the Company, prior to) all Indebtedness secured thereby; and
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(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance
or transfer and such supplemental indenture comply with this Article and that
all conditions precedent herein provided for relating to such transaction have
been met.
SECTION 802. Successor Corporation Substituted.
---------------------------------
Upon any consolidation or merger or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Corporation formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer is made
shall succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such successor
Corporation had been named as the Company herein; provided, however, that no
such conveyance or transfer shall have the effect of releasing the Person named
as the "Company" in the first paragraph of this instrument or any successor
Corporation which shall theretofore have become such in the manner prescribed in
this Article from its liability as obligor and maker on any of the Securities.
SECTION 803. Limitation on Lease of Properties as Entity.
-------------------------------------------
The Company shall not lease its properties and assets substantially as an
entirety to any Person.
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another Corporation to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders,
or to surrender any right or power herein conferred upon the Company; or
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(3) to secure the Securities pursuant to the requirements of Section 1005
or otherwise; or
(4) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities; or
(5) to add any additional Events of Default; or
(6) to cure any ambiguity, to correct or supplement any provision herein
which may be inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such action pursuant to this Clause (6) shall not adversely affect
the interests of the Holders in any material respect.
The Trustee shall give notice to the Holders affected by any such
supplemental indenture as provided in Section 106. Such notice shall describe
the changes effected by such supplemental indenture.
SECTION 902. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities, by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by a Board
Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture. The
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities affected by such waiver, by Act of said Holders delivered
to the Company and the Trustee, may waive compliance by the Company with any
provision of this Indenture, any supplemental indenture or the Securities,
except a default in the payment of the principal of or interest on any Security.
However, no such supplemental indenture or waiver shall, without the consent of
the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest on (and Liquidated Damages, if any), any Security, or reduce the
principal amount thereof or the rate of interest thereon, or change the place of
payment where, or the coin or currency in which, any Security or interest
thereon (and Liquidated Damages, if any) is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof, or
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(2) reduce the percentage in aggregate principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any waiver (of
compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513 or Section
1009, except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel to the effect that the execution of such supplemental
indenture is authorized or permitted by this Indenture and, assuming due
authorization, execution and delivery by the Trustee, that such supplemental
indenture will constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
the enforcement of creditors' rights and to general equity principles. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal and Interest.
---------------------------------
The Company will duly and punctually pay the principal of and interest on
the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, The City of New York
an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange, and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other offices
or agencies (in or outside the Borough of Manhattan, The City of New York) where
the Securities may be presented or surrendered for any or all such purposes and
may from time to time rescind such designations; provided, however,
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that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. Money for Securities Payments To Be Held in Trust.
-------------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of or interest on (and Liquidated
Damages, if any) any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or
interest (and Liquidated Damages, if any) so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
prior to (and if on, then before 11:00 a.m. (New York City time)) each due date
of the principal of or interest on (and Liquidated Damages, if any) any
Securities, deposit with a Paying Agent a sum sufficient (in immediately
available funds, if payment is made on the due date) to pay the principal or
interest (and Liquidated Damages, if any) so becoming due, such sum to be held
in trust for the benefit of the Persons entitled to such principal or interest
(and Liquidated Damages, if any), and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest on (and Liquidated Damages, if any) Securities in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal or
interest on the Securities; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent
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to pay, to the Trustee all sums held in trust by the Company or such Paying
Agent, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or received by
the Trustee in respect of U.S. Government Obligations deposited with the Trustee
pursuant to Section 401, 403 or 1007, or then held by the Company, in trust for
the payment of the principal of or interest on any Security and remaining
unclaimed for two years (less a day) after such principal or interest has become
due and payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Limitations on Liens and Encumbrances.
-------------------------------------
So long as there are Securities Outstanding:
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<PAGE>
(a) The Company will not itself, nor will it permit any Subsidiary to,
create, assume or incur any Lien (except any existing on the date hereof) upon
any of its or their Principal Properties, or any interest it or they may have
therein, whether owned at the date hereof or hereafter acquired (unless, in the
case of any Lien upon any Principal Property of any Subsidiary, all obligations
and Indebtedness thereby secured are held by the Company or a wholly owned
Subsidiary) as security for any Indebtedness without making effective provision,
and the Company covenants that in any such case effective provision will be
made, whereby the Securities (either alone or together with all or any part of
any other Indebtedness of the Company) shall be secured by such Lien equally and
ratably (or, at the option of the Company, prior to) with any and all other
obligations and Indebtedness thereby secured; provided, however, that the
foregoing restriction shall not apply to:
(1) Liens upon any property or assets owned by any Subsidiary existing on
the date on which such Subsidiary became a Subsidiary;
(2) Liens on any property or assets existing at the time of their
acquisition and Liens on any property or assets acquired, constructed or
improved which are created contemporaneously with or within 180 days after (or
created pursuant to financing arrangements, a firm commitment for which is
obtained within 180 days after) the completion of such acquisition, improvement
or construction to secure or provide for payment of the purchase price of
property or assets acquired or the cost of such construction or improvement,
including Liens arising in connection with cross-border or defeased lease
arrangements; if (i) such Lien shall be limited to the property so acquired or
constructed or to the improvements so made, (ii) the amount of the obligations
or Indebtedness secured by such Lien shall not be increased after the date of
the acquisition of such property or the completion of such improvements or
construction except to the extent additional construction or improvements shall
be made to such property after the date of such acquisition or the making of
such improvements or construction, and (iii) in each instance where the
obligation or Indebtedness secured by such Lien shall constitute an obligation
or Indebtedness of, or is assumed by, the Company or such Subsidiary, the
principal amount of the obligation or Indebtedness secured by such Lien shall
not exceed 100% of the cost or fair value (as determined in good faith by the
Board of Directors), whichever shall be lower, of the property, construction or
improvements at the time of the acquisition or completion thereof;
(3) Liens for taxes or assessments or governmental charges or levies not
then due and delinquent or the validity of which shall be contested in good
faith; and materialmen's, mechanics', carriers', workmen's, repairmen's,
landlords' or other like Liens securing obligations not overdue or which
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<PAGE>
shall be contested in good faith, or deposits to obtain the release of such
Liens;
(4) pledges or deposits to secure public or statutory obligations or to
secure payment of workmen's compensation or to secure performance in connection
with tenders, leases of real property, bids or contracts or to secure (or in
lieu of) surety or appeal bonds and pledges or deposits made in the ordinary
course of business for similar purposes;
(5) any lease, regardless of the manner in which such lease shall be
treated for accounting or tax purposes or any other purpose or any filing of or
agreement to file any financing statement under the Uniform Commercial Code of
any jurisdiction in respect of such lease;
(6) Liens to secure payments under any contract or statute, or to secure
any Indebtedness incurred in financing the acquisition, construction or
improvement of property subject thereto, including Liens on, and created or
arising in connection with the financing of the acquisition, construction or
improvement of, any facility used or to be used in the business of the Company
or any Subsidiary through the issuance of obligations by a state or local
governmental unit;
(7) easements or similar encumbrances, the existence of which do not
materially impair the use of the Principal Property subject thereto for the
purposes for which it is held or was acquired;
(8) Liens arising out of any final judgment for the payment of money
aggregating not in excess of $10,000,000; or Liens arising out of any final
judgment for the payment of money provided such judgment is being contested in
good faith;
(9) Liens on Timberlands in connection with any arrangement under which
the Company or a Subsidiary is obligated to cut or pay for timber in order to
provide the Lienholder with a specified amount of money, however determined;
(10) Liens created or assumed in the ordinary course of the business of
exploring for, developing or producing oil, gas or other minerals (including
borrowings in connection therewith) on, or any interest in, or on any proceeds
from the sale of, property acquired for such purposes, production therefrom
(including the proceeds thereof), or material or equipment located thereon; and
(11) Liens to extend, renew or replace any Liens referred to in Clauses
(1) through (10) or this Clause (11) of this Subsection 1005(a) or any Lien
existing on the date hereof.
(b) Notwithstanding the provisions of Subsection (a) above, the Company or
any Subsidiary may create, assume or
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<PAGE>
incur, or suffer to be created, assumed or incurred any Lien which would
otherwise be subject to the foregoing restriction, provided that at no time
shall the aggregate amount of all outstanding obligations and Indebtedness
secured by Liens which, but for this Subsection (b), would be prohibited by this
Section 1005, plus the aggregate amount of Attributable Debt in respect of any
then existing leases described in Section 1006 (other than any such leases of
property to the extent that the cash portion of the net proceeds of the sale of
such property shall have been applied in compliance with Section 1006(b)),
exceed 10% of Consolidated Net Tangible Assets at the end of the next preceding
fiscal year of the Company.
SECTION 1006. Limitations on Sale and Leaseback Transactions.
----------------------------------------------
So long as there are Securities Outstanding, the Company will not, and will
not permit any Subsidiary to, directly or indirectly, sell or transfer (other
than to the Company or a Subsidiary) any Principal Property (other than a
Principal Property sold or transferred to an industrial development corporation
or state or local governmental unit in connection with a revenue or pollution
control financing) now owned or hereafter acquired with the intention that the
Company or any Subsidiary shall take back a lease thereof (other than a lease
for a term of not more than three years, a lease entered into solely for tax
purposes or a cross-border or defeased lease arrangement) unless (a) the
proceeds of such sale shall at least be equal to the fair value (as determined
in good faith by the Board of Directors) of such Principal Property, and either
(b) an amount equal to the cash portion of the net proceeds of such sale shall
be applied within 180 days either before or after the effective date of any such
transaction (i) to the retirement of Funded Indebtedness (other than any thereof
owed to the Company or any Subsidiary) or (ii) to the purchase of property,
facilities or equipment (other than the property, facilities or equipment
involved in such sale) having a value at least equal to the cash portion of the
net proceeds of such sale, or (c) the property, facilities or equipment involved
in such sale could have been subjected to a Lien to secure Indebtedness in a
principal amount equal to the aggregate amount of Attributable Debt in respect
of such sale without equally and ratably securing the Securities pursuant to
Section 1005.
SECTION 1007. Defeasance of Certain Obligations.
---------------------------------
The Company may omit to comply with any term, provision or condition set
forth in Section 1005 or 1006 with respect to the Securities, provided that the
following conditions shall have been satisfied:
(1) With reference to this Section 1007, the Company has deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities, (i) money in an amount, or (ii) non-
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callable U.S. Government Obligations which through the payment of interest and
principal in respect thereof in accordance with their terms will provide not
later than one day before the due date of any payment, money in an amount, or
(iii) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge the
principal of and each installment of interest on (including Liquidated Damages,
if any) the Outstanding Securities on the Stated Maturity of such principal or
installment of interest (including Liquidated Damages, if any);
(2) Such deposit shall not, as specified in an Opinion of Counsel, cause
the Trustee with respect to the Securities to have a conflicting interest as
defined in Section 608 and for purposes of the Trust Indenture Act with respect
to the Securities;
(3) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with notice or lapse of time would
become an Event of Default with respect to the Securities shall have occurred
and be continuing on the date of such deposit;
(5) The Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that Holders of the Securities will not recognize income, gain or
loss for Federal income tax purposes as a result of such deposit and defeasance
of certain obligations and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if such deposit and defeasance had not occurred; and
(6) The Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the defeasance contemplated by this Section have been
met.
SECTION 1008. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after each
December 31 following the date hereof, a written statement signed by the
Chairman of the Board and Chief Executive Officer, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller of the Company stating, as to each signer thereof, that
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(1) a review of the activities of the Company during such year and of
performance under this Indenture has been made under his supervision, and
(2) to the best of his knowledge, based on such review, the Company has
fulfilled all its obligations under this Indenture throughout such year, or, if
there has been a default in the fulfillment of any such obligation, specifying
each such default known to him and the nature and status thereof.
SECTION 1009. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1005 and 1006 if before the time
for such compliance the Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
_________________________
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This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first above written.
POTLATCH CORPORATION
By /s/ GERALD L. ZUELKE
Gerald L. Zuelke
Attest:
/s/ BETTY R. FLESHMAN
Betty R. Fleshman
U.S. BANK TRUST
NATIONAL ASSOCIATION,
as Trustee
By /s/ BRENDA SCHWINTEK
Brenda Schwintek
Attest:
/s/ JACQUELINE ALLIEGRO
Jacqueline Alliegro
___________________________
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<PAGE>
Schedule 305(f)(iv)
-------------------
We understand that the 6.25% Notes due March 15, 2002 of Potlatch Corporation
(the "Securities") were issued in a transaction not involving any public
offering within the United States within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and that the Securities have not been
registered under the Securities Act, and we agree, on our own behalf and on
behalf of each account for which we acquire any Securities, that if in the
future we decide to resell or otherwise transfer any Securities, such Securities
may be resold or otherwise transferred only (i) to Potlatch Corporation or any
subsidiary thereof, (ii) pursuant to an effective registration statement under
the Securities Act, (iii) to a person who is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (iv) to an Institutional Accredited Investor (as
defined below) that, prior to such transfer, furnishes to U.S. Bank Trust
National Association, as Trustee (the "Trustee"), a signed letter substantially
in the form hereof, (v) outside the United States in a transaction meeting the
requirements of Rule 904 under the Securities Act or (vi) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
applicable) and, in each case, in accordance with any applicable securities laws
of the United States or any other applicable jurisdiction and in accordance with
the legends set forth on the Securities. We further agree to provide any person
purchasing any of the Securities from us a notice advising such purchaser that
resales of such Securities are restricted as stated herein. We understand that
the registrar for the Securities will not be required to accept for registration
of transfer any Securities, except upon presentation of evidence satisfactory to
Potlatch Corporation that the foregoing restrictions on transfer have been
complied with. We further understand that any Securities will be in the form of
definitive physical certificates and that such certificates will bear a legend
reflecting the substance of this paragraph.
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule 501(a)(1),
(2), (3) or (7) under the Securities Act (an "Institutional Accredited
Investor");
(ii) any purchase of Securities by us will be for our own account or for
the account of one or more Institutional Accredited Investors or as
fiduciary for the account of one or more trusts, each of which is an
"accredited investor" within the meaning of Rule 501(a)(7) under the
Securities Act and for each of which we exercise sole investment
discretion;
(iii) in the event that we purchase any Securities, we will acquire
Securities having a minimum purchase price of
S - 1
<PAGE>
not less than $100,000 for our own account or for any separate
account for which we are acting;
(iv) we have such knowledge and experience in financial and business
matters that we are capable of evaluating the merits and risks of
purchasing the Securities; and
(v) we are not acquiring the Securities with a view to distribution thereof
or with any present intention of offering or selling the Securities, except
as permitted above; provided that the disposition of our property and
property of any accounts for which we are acting as fiduciary shall remain
at all times within our control.
We acknowledge that Potlatch Corporation, you and others will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
(Name of Purchaser)
By: __________________________
Name:
Title:
S - 2
<PAGE>
Exhibit 4.2
POTLATCH CORPORATION
6.25% Notes due March 15, 2002
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 15, 1999
Salomon Smith Barney Inc.
Seven World Trade Center
New York, New York 10048
Dear Sirs:
Potlatch Corporation, a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to Salomon Smith Barney
Inc. (the "Initial Purchaser" or "you"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), its 6.25 % Notes due
March 15, 2002 (the "Securities") relating to the initial placement of the
Securities (the "Initial Placement"). To induce you to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
agrees with you for your benefit and the benefit of the holders from time to
time of the Securities (including the Initial Purchaser) (each a "Holder" and,
together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
-----------
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, control
of a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
<PAGE>
"Exchange Offer Registration Period" shall mean the 180 day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the Company
identical in all material respects to the Securities (except that the transfer
restrictions shall be modified or eliminated, as appropriate) and to be issued
under the Indenture or the Exchange Securities Indenture.
"Exchange Securities Indenture" shall mean an indenture between the
Company and the Exchange Securities Trustee, identical in all material respects
to the Indenture.
"Exchange Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchaser, as trustee with respect to the
Exchange Securities under the Exchange Securities Indenture.
"Exchanging Dealer" shall mean any Holder (which may include the
Initial Purchaser) that is a Broker-Dealer and elects to exchange for Exchange
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for Exchange Securities.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of March __, 1999, between the Company and U.S. Bank Trust National
Association, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Liquidated Damages" shall have the meaning set forth in Section 17(a)
hereof.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Offering Circular" shall have the meaning set forth in the Purchase
Agreement.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of
2
<PAGE>
any portion of the Securities or the Exchange Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
Exchange Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including post-
effective amendments (in each case including the Prospectus contained therein),
all exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Time of Delivery" has the meaning set forth in the Purchase
Agreement.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and
-------------------------
file with the Commission the Exchange Offer Registration Statement with respect
to the Registered Exchange Offer. The Company shall use its reasonable efforts
to cause the Exchange Offer Registration Statement to become effective under the
Act within 180 days of the Time of Delivery (or if such 180th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an Affiliate of the Company, acquires the
Exchange Securities in the ordinary course of such Holder's business, has
no arrangements with any Person to participate in the distribution of the
Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade
such Exchange Securities from and after their receipt without any
limitations or restrictions under the
3
<PAGE>
Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) use its reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, and
supplemented and amended as required under the Act, to ensure that it
is available for sales of Exchange Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the Exchange Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open; and
(vi) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Exchange Securities Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of Exchange Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the Exchange Securities (x) could not under Commission
policy as in effect on the date of this Agreement rely on the position of
the Commission in Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991)
----------------------------
and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
----------------------------------
interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction and that any such resale transaction
must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act if the resales are of
4
<PAGE>
Exchange Securities obtained by such Holder in exchange for Securities
acquired by such Holder directly from the Company or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any Exchange Securities received by such Holder were
acquired in the ordinary course of business;
(ii) such Holder has not engaged in, does not intend to engage
in, and has no arrangement or understanding with any Person to
participate in, the distribution of the Securities or the Exchange
Securities within the meaning of the Act;
(iii) if such Holder is a Broker-Dealer that will receive
Exchange Securities for its own account in exchange for Securities,
the Securities to be exchanged for Exchange Securities were acquired
by it as a result of market-making activities or other trading
activities; and
(iii) such Holder is not an Affiliate of the Company.
(f) If the Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange
of Securities constituting any portion of an unsold allotment, at the
request of the Initial Purchaser, the Company shall issue and deliver to
the Initial Purchaser or the Person purchasing Exchange Securities
registered under a Shelf Registration Statement as contemplated by Section
3 hereof from such Initial Purchaser, in exchange for such Securities, a
like principal amount of Exchange Securities, and the Company shall,
starting on the date of effectiveness of the Exchange Offer Registration
Statement and ending on the close of business on the 180th day following
such date, make available as many copies of the Exchange Offer Registration
Statement prospectus, as amended or supplemented, as reasonably requested
by the Initial Purchaser. The Company shall use its reasonable efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Securities as for Exchange Securities issued pursuant to the
Registered Exchange Offer. The Initial Purchaser agrees to promptly notify
the Company in writing following the resale of its initial allotment of
Offered Securities.
3. Shelf Registration. (a) If (i) due to any change in law or
------------------
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for
any other reason the Registered Exchange Offer is not consummated within 225
days of the Time of Delivery; or (iii) in the case of any Holder that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange (other than due
solely to the status of such Holder as an Affiliate of the Company or as a
broker-dealer) (it being understood that, for purposes of this Section 3, (x)
the requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of Exchange Securities acquired in exchange for such
Securities shall result in such Exchange Securities being not "freely
tradeable"; but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the Company
5
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shall promptly deliver to the Holders written notice thereof and shall effect a
Shelf Registration Statement in accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its reasonable efforts to cause to be
declared effective under the Act a Shelf Registration Statement relating to
the offer and sale of the Securities or the Exchange Securities, as
applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that with respect to Exchange
-------- -------
Securities received by the Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K,
as applicable, in satisfaction of its obligations under this subsection
with respect thereto, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company shall use its reasonable efforts to keep the
Shelf Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years (or, if Rule
144(k) is amended to provide a shorter restrictive period, such shorter
period) from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate when
all the Securities or Exchange Securities, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement effective during
the requisite period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and sell
such Securities during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the Company in good faith
and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
so long as the Company promptly thereafter complies with the requirements
of Section 4(k) hereof, if applicable.
4. Additional Registration Procedures. In connection with any
----------------------------------
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) a reasonable time prior to
the filing thereof with the Commission to permit you to comment
thereon, and shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose;
(ii) include the information set forth in Annex A hereto
on the facing page of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the
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Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by the Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that, subject to Section 4(k):
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules
and regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
and
(iii) any Prospectus forming part of any Registration Statement,
and any amendment or supplement to such Prospectus, does not, during
the period when delivery thereof is required, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) The Company shall advise you, the Holders of Securities covered
by any Shelf Registration Statement and (in the case of clauses (iii) - (v)
hereof) any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by you or any
such Holder or Exchanging Dealer, shall confirm such advice in writing
(which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by
an instruction to suspend the use of the Prospectus until the Company shall
have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
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<PAGE>
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable efforts to prevent the
issuance of or obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities covered by
any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and all material incorporated
therein by reference, and, if the Holder so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request.
Subject to Section 4(k) below, the Company consents to the use of the
Prospectus or any amendment or supplement thereto as to which no notice has
been given pursuant to Section 4(c) by each of the selling Holders of
securities in connection with the offering and sale of the securities
covered by the Prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing,
all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to the Initial Purchaser and each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such Exchange
Offer Registration Statement and any amendment or supplement thereto as any
such Person may reasonably request. Subject to Section 4(k) below, the
Company consents to the use of the Prospectus or any amendment or
supplement thereto as to which no notice has been given pursuant to Section
4(c) by the Initial Purchaser and any Exchanging Dealer in connection with
the offering and sale of the Exchange Securities covered by the Prospectus,
or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall, if
required by applicable law, register or qualify or cooperate with the
Holders of Securities included therein and their respective counsel in
8
<PAGE>
connection with the registration or qualification of the Securities or the
Exchange Securities for sale under the laws of such jurisdictions as any
Holder shall reasonably request and will use its best efforts to maintain
such qualification in effect so long as required; provided that in no event
--------
shall the Company be obligated to qualify to do business or as a dealer in
securities in any jurisdiction where it is not then so qualified or to take
any action that would subject it to taxation or service of process in
suits, other than those arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject.
(j) Unless the applicable Securities shall be in book-entry only form,
the Company shall cooperate with the Holders of Securities to facilitate
the timely preparation and delivery of certificates representing Exchange
Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly prepare a post-
effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchaser of
the securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and the Initial Purchaser, and in the
case of a Shelf Registration Statement, the Holders of the securities
covered thereby, shall suspend use of such Prospectus until the Company has
amended or supplemented such Prospectus so that such Prospectus does not
contain any such untrue statement or omission. In such circumstances, the
period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 and the Shelf Registration Statement provided for
in Section 3(b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchaser, the
Holders of the Securities and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this Section.
(l) The Company shall use its reasonable efforts to cause The
Depository Trust Company ("DTC") on the first Business Day following the
---
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from the existing CUSIP number assigned
to the Securities, any designation indicating that such Offered Securities
are "restricted securities," which efforts shall include delivery to DTC of
a letter executed by the Company substantially in the form of Annex E
hereto and (ii) any other stop or restriction on DTC's system with respect
to the Securities. In the event the Company is unable to cause DTC to take
the actions described in the immediately preceding sentence, the Company
shall take such actions as the Initial Purchasers may reasonably request to
provide, as soon as practicable, a CUSIP number for the Securities
registered under such Registration Statement and to cause such CUSIP
numbers to be assigned to such Securities (or to the maximum aggregate
principal amount of such Securities to which such number(s) may be
assigned). Upon compliance with the foregoing requirements of this Section
4(l), the Company shall provide the Trustee with printed certificates for
the Securities, in a form eligible for deposit with DTC.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable
9
<PAGE>
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the Exchange Securities
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as
the Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf
Registration Statement the Securities of any Holder that unreasonably fails
to furnish such information within a reasonable time after receiving such
request.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such customary agreements and take all other appropriate
actions (including if requested an underwriting agreement in customary
form) in order to expedite or facilitate the registration or the
disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 hereof (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any),
with respect to all parties to be indemnified pursuant to Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders
of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
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is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law after notice has been given to
the Company of such pending disclosure and a reasonable opportunity
has been provided, where reasonably possible, for the Company to
obtain an appropriate protective order for the information to be
disclosed, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality;
(iii) make such representations and warranties to the Holders
of Securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to
10
<PAGE>
the Managing Underwriters, if any) addressed to each selling Holder
and the underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 4(k) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(q) shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto; and (B) each closing under
any underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the Initial
Purchaser, and any attorney, accountant or other agent retained by the
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Initial
Purchaser or any such attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
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is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Initial Purchaser or any such attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law after notice has been given to the
Company of such pending disclosure and a reasonable opportunity has
been provided, where reasonably possible, for the Company to obtain an
appropriate protective order for the information to be disclosed, or
such information becomes available to the public generally or through
a third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
11
<PAGE>
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Initial Purchaser and its
counsel, addressed to the Initial Purchaser, covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
Initial Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to such
Initial Purchaser, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi)
of this Section 4(r) shall be performed at the close of the Registered Exchange
Offer and the effective date of any post-effective amendment to the Exchange
Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the Exchange Securities,
the Company shall mark, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the
Exchange Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
5. Registration Expenses. The Company shall bear all expenses
---------------------
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith (which firm or counsel shall be reasonably satisfactory to
the Company), and, in the case of any Exchange Offer Registration Statement,
will reimburse the Initial Purchaser for the reasonable fees and disbursements
of counsel acting in connection therewith.
6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Holder of
Securities or Exchange Securities, as the case may be, covered by any
Registration Statement (including the Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each
such Holder and each Person who controls any such Holder within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary
Prospectus or the
12
<PAGE>
Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
--------
however, that the Company will not be liable in any case to the extent that
-------
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in
Section 6(d) to Losses of any underwriter of Securities or Exchange
Securities, as the case may be, registered under a Shelf Registration
Statement, their directors, officers, employees or agents and each Person
who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchaser and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter
into an underwriting agreement reflecting such agreement, as provided in
Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs such Registration Statement and
each Person who controls the Company within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
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counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
13
<PAGE>
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, and such counsel shall have advised
the indemnified party to such effect in writing; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action; or (iv) the indemnifying party shall authorize the indemnified
party in writing to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on
the other hand, from the Initial Placement and the Registration Statement
which resulted in such Losses; provided, however, that in no case shall the
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Initial Purchaser or any subsequent Holder of any Security or Exchange
Security be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case
of an Exchange Security, applicable to the Security that was exchangeable
into such Exchange Security, as set forth on the cover page of the Offering
Circular, nor shall any underwriter be responsible for any amount in excess
of the underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Offering Circular and (y) the total amount of additional interest which the
Company was not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses.
Benefits received by the Initial Purchaser shall be deemed to be equal to
the total purchase discounts and commissions as set forth on the cover page
of the Offering Circular, and benefits received by any other Holders shall
be deemed to be equal to the value of receiving Securities or Exchange
Securities, as applicable, registered under the Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover
14
<PAGE>
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties agree
that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Holders were treated as one entity for
such purpose) or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of such Holder shall have
the same rights to contribution as such Holder, and each Person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling Persons
referred to in this Section hereof, and will survive the sale by a Holder
of securities covered by a Registration Statement.
7. Underwritten Registrations.
--------------------------
(a) If any of the Securities or Exchange Securities, as the case may
be, covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell
such Person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes
and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements.
8. No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of Exchange Securities);
provided that, with respect to any matter that directly or indirectly affects
- --------
the rights of the Initial Purchaser hereunder, the Company shall
15
<PAGE>
obtain the written consent of the Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities, as the case may be, are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of
Securities or Exchange Securities, as the case may be, being sold rather than
registered under such Registration Statement.
10. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Salomon Smith Barney Inc.;
(b) if to you, initially at your address set forth in the Purchase
Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchaser or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the Exchange Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
12. Counterparts. This agreement may be in signed counterparts, each
------------
of which shall an original and all of which together shall constitute one and
the same agreement.
13. Headings. The headings used herein are for convenience only and
--------
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16
<PAGE>
16. Securities Held by the Company, etc. Whenever the consent or
------------------------------------
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
17. Liquidated Damages Under Certain Circumstances. (a) Liquidated
----------------------------------------------
damages ("Liquidated Damages") shall become payable in respect of the Securities
or Exchange Securities, as the case may be, as follows if any of the following
events occur (each such event in clauses (i) through (iii) below, a
"Registration Default"):
(i) in the event that the Company is permitted under the law and
currently prevailing interpretations of the Commission's staff to effect
the Registered Exchange Offer and the Exchange Offer Registration Statement
is not declared effective on or prior to the 180th day following the Time
of Delivery;
(ii) the Registered Exchange Offer is not consummated or the Shelf
Registration Statement is not declared effective on or prior to the 225th
day following the Time of Delivery; or
(iii) after a Shelf Registration Statement is declared effective, (A)
such Shelf Registration Statement ceases to be effective prior to the end
of the Shelf Registration Period (except as permitted in paragraph (b) of
this Section 17); or (B) such Shelf Registration Statement or the related
Prospectus ceases to be useable in connection with resales of Securities or
Exchange Securities, as the case may be, covered by such Shelf Registration
Statement prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 17) because (1) the Company
determines that any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, (2) the Company determines that
it shall be necessary to amend such Shelf Registration Statement, or
supplement the related Prospectus, to comply with the Act or the Exchange
Act or the rules thereunder, or (3) the Company determines that it is
advisable to suspend use of the Prospectus for a discrete period of time
due to pending material corporate developments or similar material events
that have not yet been publicly disclosed and as to which the Company
believes public disclosure will be prejudicial to the Company.
Liquidated Damages shall accrue on the Securities or the Exchange
Securities, as the case may be, over and above the interest rate set forth in
the title to the Securities or the Exchange Securities, as the case may be,
following the occurrence of each Registration Default set forth in clauses (i)
and (ii) above from and including the next day following each such Registration
Default, in each case at a rate equal to 0.25% per annum; provided, however,
-------- -------
that in any case, if one or more Registration Defaults referred to in Section
17(a)(iii) occurs and continues for more than 60 days (whether or not
consecutive) in any twelve month period (the 61st day being referred to as the
"Default Day") then from the Default Day until the earlier of (x) the date such
Shelf Registration Statement is again deemed effective or is useable, (y) the
date that is the second anniversary of the Time of Delivery (or, if Rule 144(k)
of the Act is amended to provide a shorter restrictive period, such shorter
period) or (z) the date as
17
<PAGE>
of which all the Securities are sold pursuant to such Shelf Registration
Statement, Liquidated Damages shall accrue at a rate of 0.25% per annum;
provided, further, that the aggregate amount of Liquidated Damages payable
-------- -------
pursuant to this Section 17 will in no event exceed 0.25% per annum. The
Liquidated Damages attributable to each Registration Default referred to in
clauses (i) and (ii) above shall cease to accrue from the date of effectiveness
of the Exchange Offer Registration Statement after such 180-day period, in the
case of clause (i) above, or the consummation of the Registered Exchange Offer
or the date of effectiveness of the Shelf Registration Statement after such 225-
day period, in the case of clause (ii) above.
(b) A Registration Default referred to in Section 17(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-
effective amendment to such Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related Prospectus or (y) the
occurrence of other material events or developments with respect to the
Company that would need to be described in such Registration Statement or
the related Prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such
Registration Statement and related Prospectus to describe such events.
(c) Any amounts of Liquidated Damages due pursuant to the foregoing
paragraphs will be payable in cash on September 15 and March 15 of each
year to the holders of record on the preceding September 1 and March 1,
respectively.
18
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a building agreement between the
Company and the Initial Purchaser.
Very truly yours,
POTLATCH CORPORATION
By: /s/ GERALD L. ZUELKE
Name: Gerald L. Zuelke
Title: Treasurer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
SALOMON SMITH BARNEY INC.
By: /s/ DOUG FLETCHER
Name: Doug Fletcher
Title: Vice President
19
<PAGE>
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a Broker-Dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business on the 180th day following the Expiration Date, it will make
this Prospectus available to Broker-Dealers for use in connection with any such
resale. See "Plan of Distribution".
A-0
<PAGE>
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
B-1
<PAGE>
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business 180
days after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 199__, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by brokers-dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a Broker-
Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
If applicable, add information required by Regulation S-K Items 507 and/or 508.
C-1
<PAGE>
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
Rider B
-------
If the undersigned is not a Broker-Dealer, the undersigned represents
that it acquired the Exchange Securities in the ordinary course of its business,
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities and it has no arrangements or understandings with any Person
to participate in a distribution of the Exchange Securities. If the undersigned
is a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
D-1
<PAGE>
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
POTLATCH CORPORATION
__________________, 199__
The Depository Trust Company
55 Water Street, 49th Floor
New York, NY 10041
Attn: General Counsel's Office
Ladies and Gentlemen:
We refer to the Letter of Representations, dated March __, 1999 (the
"Letter of Representations"), from Potlatch Corporation (the "Issuer") and U.S.
Bank Trust, National Association, as trustee (the "Trustee") to The Depository
Trust Company ("DTC") regarding the Issuer's 6.25% Notes due March 15, 2002 (the
"Old Securities"). The CUSIP number(s) of the Old Securities is are
__________________. The Issuer and the Trustee hereby agree and notify DTC that
as of ________ __, 199__, the Securities and Exchange Commission declared
effective a Registration Statement (File No. _____) with respect to an offering
of the Issuer's ________% Exchange Notes due _______________ __, 2002 (the "New
Securities") (CUSIP No. __________) in exchange for the Old Securities.
Following the consummation of the exchange offer and the cancellation of the
global securities representing the Old Securities, the Issuer and the Trustee
agree that, with the exception of the Representations for Rule 144A Securities
attached thereto, the Letter of Representations and any applicable riders
thereto shall remain in full force and effect with respect to the New
Securities.
Very truly yours,
POTLATCH CORPORATION
By:_________________________________
Name:
Title:
D-2
<PAGE>
TRUSTEE
By:_________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:__________________________
Name:
Title:
D-3
<PAGE>
EXHIBIT 5.1
April 20, 1999
Potlatch Corporation
601 West Riverside Avenue
Suite 1100
Spokane, WA 99201
Re: Registration Statement on Form S-4
Dear Ladies and Gentlemen:
This opinion is being delivered in connection with the proposed offer by
Potlatch Corporation (the "Company") to exchange (the "Exchange Offer") up to
$100,000,000 aggregate principal amount of the Company's 6.25% Notes due March
15, 2002 to be registered under the Securities Act of 1933, as amended (the
"Exchange Notes") up to $100,000,000 aggregate principal amount of, for any and
all of the Company's outstanding 6.25% Notes due March 15, 2002 (the "Original
Notes"). The Exchange Notes are to be issued pursuant to a Registration
Statement on Form S-4 (the "Registration Statement"), filed on April 20, 1999 by
the Company with the Securities and Exchange Commission under the Securities Act
of 1933, as amended. The Exchange Notes will be issued under an Indenture,
dated as of March 15, 1999 (the "Indenture"), between the Company and U.S. Bank
Trust National Association (the "Trustee"), in substantially the form filed as
Exhibit 4.1 to the Registration Statement.
We are of the opinion that, when (a) the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended, (b) the Exchange Notes have
been executed by the Company and authenticated by the Trustee in accordance with
the terms of the Indenture, and (c) the Exchange Notes have been delivered in
exchange for the Original Notes in the manner and for the consideration stated
in the Registration Statement and the Indenture, the Exchange Notes will be
legally binding obligations of the Company entitled to the benefits of the
Indenture.
<PAGE>
Potlatch Corporation
April 20, 1999
Page 2
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement and in the Prospectus included therein.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO LLP
E#09372
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
-------------------------------
The Board of Directors
Potlatch Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" and "Selected Historical
Financial Information" in the prospectus.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
April 19, 1999
<PAGE>
EXHIBIT 24.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
------
/s/JOHN M. RICHARDS
-------------------
Director, Chairman of the Board
And Chief Executive Officer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
------
/s/SANDRA T. POWELL
-------------------
Senior Vice President, Finance
And Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
------
/s/TERRY L. CARTER
------------------
Controller
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
------
/s/RICHARD A. CLARKE
--------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/KENNETH T. DERR
-------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/GEORGE F. JEWETT, JR.
-------------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/RICHARD B. MADDEN
---------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/VIVIAN W. PIASECKI
---------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/TONI REMBE
--------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999..
-----
/s/REUBEN F. RICHARDS
----------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/RICHARD M. ROSENBERG
------------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/ROBERT G. SCHWARTZ
----------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/L. PENDLETON SIEGEL
-----------------------
Director, President and Chief
Operating Officer
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/CHARLES R. WEAVER
---------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/FREDERICK T. WEYERHAEUSER
-----------------------------
Director
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
I, the undersigned, appoint Betty R. Fleshman, Ralph M. Davisson and Sandra
T. Powell, or any of them, my attorneys-in-fact and agents, each with full power
of substitution, for me and in my name, place and stead, to execute for me and
in my behalf in each or any of my offices and capacities with Potlatch
Corporation ("Potlatch") as shown below, a Registration Statement on either Form
S-3 or Form S-4 that Potlatch contemplates filing with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended,
relating to the issuance by Potlatch of up to $100 million aggregate principal
amount of its debt securities, and any and all amendments to said Registration
Statement, including post-effective amendments, and to file the same with
exhibits thereto and other documents in connection therewith, with the SEC,
granting to said attorneys-in-fact and agents, and each of them, full power and
authority to perform each and every act and thing necessary to be done, as fully
to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and approving all that each of the said attorneys-in-fact and
agents or their substitutes may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have executed this power of attorney as of this 5th
---
day of March, 1999.
-----
/s/WILLIAM T. WEYERHAEUSER
---------------------------
Director
<PAGE>
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________
FORM T-1
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
U.S. BANK TRUST NATIONAL ASSOCIATION
(Exact name of Trustee as specified in its charter)
United States 41-0257700
(State of Incorporation) (I.R.S. Employer
Identification No.)
U.S. Bank Trust Center
180 East Fifth Street
St. Paul, Minnesota 55101
(Address of Principal Executive Offices) (Zip Code)
POTLATCH CORPORATION
(Exact name of Registrant as specified in its charter)
Delaware 82-0156045
(State of Incorporation) (I.R.S. Employer
Identification No.)
601 West Riverside Avenue #1100
Spokane, WA 99201
(Address of Principal Executive Offices) (Zip Code)
$100,000,000 6.25% NOTES DUE MARCH 15, 2002
(Title of the Indenture Securities)
<PAGE>
GENERAL
-------
1. General Information Furnish the following information as to the Trustee.
-------------------
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes
2. AFFILIATIONS WITH OBLIGOR AND UNDERWRITERS If the obligor or any
------------------------------------------
underwriter for the obligor is an affiliate of the Trustee, describe each
such affiliation.
None
See Note following Item 16.
Items 3-15 are not applicable because to the best of the Trustee's
knowledge the obligor is not in default under any Indenture for which the
Trustee acts as Trustee.
16. LIST OF EXHIBITS List below all exhibits filed as a part of this statement
----------------
of eligibility and qualification.
1. Copy of Articles of Association.*
2. Copy of Certificate of Authority to Commence Business.*
3. Authorization of the Trustee to exercise corporate trust powers
(included in Exhibits 1 and 2; no separate instrument).*
4. Copy of existing By-Laws.*
5. Copy of each Indenture referred to in Item 4. N/A.
6. The consents of the Trustee required by Section 321(b) of the act.
7. Copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority is incorporated by reference to Registration Number 333-70709.
* Incorporated by reference to Registration Number 22-27000.
<PAGE>
NOTE
The answers to this statement insofar as such answers relate to what
persons have been underwriters for any securities of the obligors within three
years prior to the date of filing this statement, or what persons are owners of
10% or more of the voting securities of the obligors, or affiliates, are based
upon information furnished to the Trustee by the obligors. While the Trustee has
no reason to doubt the accuracy of any such information, it cannot accept any
responsibility therefor.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, U.S. Bank Trust National Association, an Association organized and
existing under the laws of the United States, has duly caused this statement of
eligibility and qualification to be signed on its behalf by the undersigned,
thereunto duly authorized, and its seal to be hereunto affixed and attested, all
in the City of Saint Paul and State of Minnesota on the 7th day of April, 1999.
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ B. Schwintek
----------------------
B. Schwintek
Trust Officer
/s/ J. Paulson
- ----------------
J. Paulson
Assistant Secretary
<PAGE>
EXHIBIT 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the
undersigned, U.S. BANK TRUST NATIONAL ASSOCIATION hereby consents that reports
of examination of the undersigned by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon its request therefor.
Dated: April 7, 1999
U.S. BANK TRUST NATIONAL ASSOCIATION
/s/ B. Schwintek
----------------
B. Schwintek
Trust Officer
<PAGE>
Exhibit 99.1
FORM OF LETTER OF TRANSMITTAL
POTLATCH CORPORATION
Offer to Exchange
6.25% Notes due March 15, 2002,
which have been registered under the Securities Act of 1933, as amended,
for any and all outstanding 6.25% Notes due March 15, 2002
Pursuant to the Prospectus, dated , 1999.
----- ---
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M. NEW YORK CITY TIME, ON ,
------- --
1999, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON , 1999.
------- --
DELIVERY TO: U.S. BANK TRUST NATIONAL ASSOCIATION, EXCHANGE AGENT
By Mail and by Overnight Courier or Hand:
----------------------------------------
U.S. Bank Trust
180 East Fifth Street
4th Floor Window
St. Paul, MN 55101
Attention: Specialized Finance
By Facsimile:
------------
(651) 244-1537
Confirm:
-------
Not available until expiration date of offer known
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
The undersigned acknowledges receipt of the Prospectus, dated ,
----- --
1999 (the "Prospectus"), of Potlatch Corporation, a Delaware corporation (the
"Company"), and this Letter of Transmittal (this "Letter"), which together
constitute the offer (the "Exchange Offer") to exchange an aggregate principal
amount of up to $100,000,000 of 6.25% Notes due March 15, 2002 of the
Company(the "Exchange Notes") for an equal principal amount of the outstanding
6.25% Notes due March 15, 2002 (the "Original Notes") of the Company. U.S. Bank
Trust National Association is the exchange agent for the Exchange Offer (the
"Exchange Agent").
For each Original Note accepted for exchange, the holder of such Original
Note will receive an Exchange Note having a principal amount at maturity equal
to that of the surrendered Original Note. The Exchange Notes will accrue
interest at the rate of 6.25% per annum from March 15, 1999. Interest on the
Exchange Notes is payable on March 15 and September 15 of each year commencing
September 15, 1999.
The Company reserves the right, in accordance with applicable law, at any
time: (i) to delay the acceptance of the Original Notes; (ii) to terminate the
Exchange Offer if the Company determines that any of the conditions to the
Exchange Offer have not occurred or have not been satisfied; (iii) to extend the
Expiration Date of the Exchange Offer and keep all Original Notes tendered other
than those Original Notes properly withdrawn; and (iv) to waive any condition or
amend the terms of the Exchange Offer. If the Company materially changes the
Exchange Offer, or if the Company waives a material condition of the Exchange
Offer, the Company will promptly distribute a prospectus supplement to the
holders of the Original Notes disclosing the change or waiver. The Company also
will extend the Exchange Offer as required by Rule 14e-1 under the Securities
Exchange Act of 1934, as amended. If the Company exercises any of the rights
listed above, it will promptly give oral or written notice of the action to the
Exchange Agent and will issue a release to an appropriate news agency. In the
case of an extension, an announcement will be made no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date.
This Letter is to be completed by a holder of Original Notes either if
Original Notes are to be forwarded herewith or if a tender of Original Notes, if
available, is to be made by book-entry transfer to the account maintained by the
Exchange Agent at The Depository Trust Company ("DTC") pursuant to the
procedures set forth in the "Exchange Offer" section of the Prospectus. Holders
of Original Notes whose certificates are not immediately available, or who are
unable to deliver their certificates or confirmation of the book-entry transfer
of their Original Notes into the Exchange Agent's account at DTC and all other
documents required by this Letter to the Exchange Agent on or prior to the
Expiration Date, must tender their Original Notes according to the guaranteed
delivery procedures set forth in the "Exchange Offer--Procedures for Tendering
Original Notes--Guaranteed Delivery Procedures" section of the Prospectus. See
Instruction 1. Delivery of documents to DTC does not constitute delivery to the
Exchange Agent. Holders who tender their Original Notes using the DTC ATOP
procedures described on page 3 need not submit this Letter.
The undersigned has completed the appropriate boxes below and signed this
Letter to indicate the action the undersigned desires to take with respect to
the Exchange Offer.
2
<PAGE>
List below the Original Notes to which this Letter relates. If the space
provided below is inadequate, the certificate numbers and principal amount of
Original Notes should be listed on a separate signed schedule affixed hereto.
<TABLE>
<S> <C> <C> <C>
=====================================================================================================
DESCRIPTION OF ORIGINAL NOTES 1 2 3
- -----------------------------------------------------------------------------------------------------
Name(s) and Address(es) Certificate Amount of Original Amount Tendered**
of Registered Holder(s) Number(s)* Note(s)
(Please fill in, if blank)
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
* Need not be completed if Original Notes are being tendered by book-entry transfer.
** Unless otherwise indicated in this column, a holder will be deemed to have tendered ALL of the
Original Notes repre-sented by the Original Notes indicated in column 2. See Instruction 2.
Original Notes tendered hereby must be in denominations of principal amount of $1,000 and any
integral multiple thereof. See Instruction 1.
=====================================================================================================
</TABLE>
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH THE DTC
AND COMPLETE THE FOLLOWING:
Name of Tendering Institution
-------------------------------------------
Account Number Transaction Code Number
---------- -----------------------
By crediting Original Notes to the Exchange Agent's Account at DTC in
accordance with DTC's Automated Tender Offer Program ("ATOP") and by
complying with applicable ATOP procedures with respect to the Exchange
Offer, including transmitting an Agent's Message to the Exchange Agent in
which the holder of the Original Notes acknowledges and agrees to be bound
by the terms of this Letter, the participant in ATOP confirms on behalf of
itself and the beneficial owners as if it had completed the information
required herein and executed and transmitted this Letter to the Exchange
Agent.
3
<PAGE>
[ ] CHECK HERE IF TENDERED ORIGINAL NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s)
-----------------------------------------
Window Ticket Number (if any)
-------------------------------------------
Date of Execution of Notice of Guaranteed Delivery
---------------------
Name of Institution which guaranteed delivery
---------------------------
If Delivered by DTC, Complete the Following:
Account Number Transaction Code Number
---------- -----------------------
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
-----------------------------------------------------------------
Address:
--------------------------------------------------------------
-----------------------------------------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that
it acquired the Exchange Notes in the ordinary course of its business, it
is not engaged in, and does not intend to engage in, a distribution of the
Exchange Notes and it has no arrangement or understanding with any person
to participate in a distribution of the Exchange Notes. If the undersigned
is a broker-dealer that will receive Exchange Notes for its own account in
exchange for Original Notes, it represents the Original Notes to be
exchanged for Exchange Notes were acquired by it as a result of market-
making or other trading activities and acknowledges that it will deliver a
prospectus meeting the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), in connection with any resale of such
Exchange Notes; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
4
<PAGE>
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the aggregate principal amount of
Original Notes indicated above. Subject to, and effective upon, the acceptance
for exchange of the Original Notes tendered hereby, the undersigned hereby
sells, assigns and transfers to, or upon the order of, the Company all right,
title and interest in and to such Original Notes as are being tendered hereby.
The undersigned hereby represents and warrants that (1) the undersigned has
full power and authority to tender, sell, assign and transfer the Original Notes
tendered hereby, (2) that the Company will acquire good, marketable and
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances, and (3) the Original Notes tendered for exchange are not
subject to any adverse claims or proxies when the same are accepted by the
Company. The undersigned hereby further represents that any Exchange Notes
acquired in exchange for Original Notes tendered hereby will have been acquired
in the ordinary course of business of the person receiving such Exchange Notes,
whether or not such person is the undersigned, that neither the holder of such
Original Notes nor any such other person is engaged in, or intends to engage in
a distribution of such Exchange Notes within the meaning of the Securities Act,
or has an arrangement or understanding with any person to participate in the
distribution of such Exchange Notes, and that neither the holder of such
Original Notes nor any such other person is an "affiliate," as defined in Rule
405 under the Securities Act of 1933, as amended (the "Securities Act"), of the
Company.
The undersigned also acknowledges that this Exchange Offer is being made
based on the Company's understanding of an interpretation by the staff of the
United States Securities and Exchange Commission (the "SEC") as set forth in no-
action letters issued to third parties, including Exxon Capital Holdings
Corporation, SEC No-Action Letter (available May 13, 1988), Morgan Stanley & Co.
Incorporated, SEC No-Action Letter (available June 5, 1991) and Shearman &
Sterling, SEC No-Action Letter (available July 2, 1993), that the Exchange Notes
issued in exchange for the Original Notes pursuant to the Exchange Offer may be
offered for resale, resold and otherwise transferred by each holder thereof
(other than a broker-dealer who acquires such Exchange Notes directly from the
Company for resale pursuant to Rule 144A under the Securities Act or any other
available exemption under the Securities Act or any such holder that is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act), without compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such Exchange Notes are acquired
in the ordinary course of such holder's business and such holder is not engaged
in, and does not intend to engage in, a distribution of such Exchange Notes and
has no arrangement with any person to participate in the distribution of such
Exchange Notes. If a holder of Original Notes is engaged in or intends to
engage in a distribution of the Exchange Notes or has any arrangement or
understanding with respect to the distribution of the Exchange Notes to be
acquired pursuant to the Exchange Offer, such holder (1) may not rely on the
applicable interpretations of the staff of the SEC, (2) will not be entitled to
tender its Original Notes in the Exchange Offer, and (3) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any secondary resale transaction. If the undersigned is a
broker-dealer that will receive Exchange
5
<PAGE>
Notes for its own account in exchange for Original Notes, it represents that the
Original Notes to be exchanged for the Exchange Notes were acquired by it as a
result of market-making activities or other trading activities and acknowledges
that it will deliver a prospectus in connection with any resale of such Exchange
Notes; however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Original Notes tendered hereby. All
authority conferred or agreed to be conferred in this Letter and every
obligation of the undersigned hereunder shall be binding upon the successors,
assigns, heirs, executors, administrators, trustees in bankruptcy and legal
representatives of the undersigned and shall not be affected by, and shall
survive, the death or incapacity of the undersigned. This tender may be
withdrawn only in accordance with the procedures set forth in the "Exchange
Offer--Withdrawal Rights" section of the Prospectus.
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, please deliver the Exchange Notes (and, if applicable,
substitute certificates representing Original Notes for any Original Notes not
exchanged) in the name of the undersigned or, in the case of a book-entry
delivery of Original Notes, please credit the account indicated above maintained
at DTC. Similarly, unless otherwise indicated under the box entitled "Special
Delivery Instructions" below, please send the Exchange Notes (and, if
applicable, substitute certificates representing Original Notes for any Original
Notes not exchanged) to the undersigned at the address shown above in the box
entitled "Description of Original Notes."
THE UNDERSIGNED, BY COMPLETING THE BOX ENTITLED "DESCRIPTION OF ORIGINAL
NOTES" ABOVE AND SIGNING THIS LETTER, WILL BE DEEMED TO HAVE TENDERED THE
ORIGINAL NOTES AS SET FORTH IN SUCH BOX ABOVE.
6
<PAGE>
<TABLE>
<CAPTION>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTION
(See Instructions 3 and 4) (See Instructions 3 and 4)
<S> <C>
To be completed ONLY if certificates for To be completed ONLY if certificates for
Original Notes not exchanged and/or Original Notes not exchanged and/or Exchange
Exchange Notes are to be issued in the name Notes are to be sent to someone other than the
of and sent to someone other than the person(s) whose signature(s) appear(s) on this
person(s) whose signature(s) appear(s) on Letter above or to such person(s) at an
this Letter above, or if Original Notes address other than shown in the box entitled
delivered by book-entry transfer which are "Description of Original Notes" on this Letter
not accepted for exchange are to be above.
returned by credit to an account maintained
at DTC other than the account indicated
above.
Issue Exchange Notes and/or Original Notes to: Issue Exchange Notes and/or Original Notes to:
Name(s): Name(s):
----------------------------------- ----------------------------------
(Please Type or Print) (Please Type or Print)
- ------------------------------------------- ------------------------------------------
(Please Type or Print) (Please Type or Print)
Address: Address:
----------------------------------- ----------------------------------
- ------------------------------------------- ------------------------------------------
(Including Zip Code) (Including Zip Code)
(Complete accompanying Substitute Form W-9)
[ ] Credit unexchanged Original Notes
delivered by book-entry transfer to the DTC
account set forth below.
- -------------------------------------------
(DTC Account Number, if applicable)
</TABLE>
IMPORTANT: THIS LETTER OR A FACSIMILE HEREOF OR AN AGENT'S MESSAGE IN LIEU
HEREOF (TOGETHER WITH THE CERTIFICATES FOR ORIGINAL NOTES OR A BOOK-ENTRY
CONFIRMATION AND ALL OTHER REQUIRED DOCUMENTS OR THE NOTICE OF GUARANTEED
DELIVERY) MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO 5:00 P.M., NEW YORK
CITY TIME, ON THE EXPIRATION DATE.
PLEASE READ THIS LETTER OF TRANSMITTAL
CAREFULLY BEFORE COMPLETING ANY BOX ABOVE.
7
<PAGE>
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS)
(Complete accompanying Substitute Form W-9)
Dated: , 1999
--------------
x
- ------------------------------------------------------------
x
- ------------------------------------------------------------
(Signature(s) of Owner) (Date)
Area Code and Telephone Number:
---------------------------
If a holder is tendering any Original Notes, this Letter must be signed by
the registered holder(s) as the name(s) appear(s) on the certificate(s) for the
Original Notes or by any person(s) authorized to become registered holder(s) by
endorsements and documents transmitted herewith. If signature is by a trustee,
executor, administrator, guardian, officer or other person acting in a fiduciary
or representative capacity, please set forth full title. See Instruction 3.
Name(s):
----------------------------------------------------------------
-------------------------------------------------------------------------
(Please Type or Print)
Capacity:
---------------------------------------------------------------
-------------------------------------------------------------------------
(Including Zip Code)
SIGNATURE GUARANTEE
(if required by Instruction 3)
Signature(s) Guaranteed by an Eligible Guarantor Institution:
-------------------------------------------------------------------------
(Authorized Signature)
-------------------------------------------------------------------------
(Title)
-------------------------------------------------------------------------
(Name and Firm)
Dated: , 1999
--------------
8
<PAGE>
INSTRUCTIONS
Potlatch Corporation
Forming Part of the Terms and Conditions of the Offer to Exchange 6.25% Notes
due March 15, 2002, which have been registered under the Securities Act of 1933,
as amended, for any and all outstanding 6.25% Notes due March 15, 2002.
1. Delivery of this Letter and Original Notes; Guaranteed Delivery Procedures.
This Letter is to be completed by holders of Original Notes either if
certificates are to be forwarded herewith or if tenders are to be made pursuant
to the procedures for delivery by book-entry transfer set forth in the "Exchange
Offer--Procedures for Tendering Original Notes--Valid Tender" section of the
Prospectus and an Agent's Message is not delivered. Certificates for all
physically tendered Original Notes, or book-entry confirmation, as the case may
be, as well as a properly completed and duly executed Letter (or facsimile
thereof) and any other documents required by this Letter, must be received by
the Exchange Agent at the address set forth herein on or prior to the Expiration
Date, or the tendering holder must comply with the guaranteed delivery
procedures set forth below. Original Notes tendered hereby must be in
denominations of principal amount at maturity of $1,000 and any integral
multiple thereof. The term "Agent's Message" means a message, transmitted by
DTC to and received by the Exchange Agent and forming a part of a book-entry
confirmation which states that DTC has received an express acknowledgment from
the tendering participant, which acknowledgment states that it has received and
agrees to be bound by the Letter and that the Company may enforce the Letter
against the tendering participant. Holders who tender their Original Notes
using the DTC ATOP procedures need not submit this Letter.
Holders of Original Notes whose certificates for Original Notes are not
immediately available or who cannot deliver their certificates and all other
required documents to the Exchange Agent on or prior to the Expiration Date, or
who cannot complete the procedure for book-entry transfer on a timely basis, may
tender their Original Notes pursuant to the guaranteed delivery procedures set
forth in the "Exchange Offer--Procedures for Tendering Original Notes--
Guaranteed Delivery Procedures" section of the Prospectus. Pursuant to such
procedures, holders may tender their Original Notes if (i) the tender is made by
or through an Eligible Guarantor Institution (as defined below); (ii) a properly
completed and signed Notice of Guaranteed Delivery in the form provided with
this Letter is delivered to the Exchange Agent on or before the Expiration Date
(by facsimile transmission, mail or hand delivery), setting forth the name and
address of the holder of Original Notes and the amount of Original Notes
tendered, stating that the tender is being made thereby; and (iii) the
certificates or a confirmation of book-entry transfer and a properly completed
and signed Letter is delivered to the Exchange Agent within three New York Stock
Exchange trading days after execution of the Notice of Guaranteed Delivery. The
Notice of Guaranteed Delivery may be delivered by hand, facsimile or mail to the
Exchange Agent, and a guarantee by an Eligible Guarantor Institution must be
included in the form described in the notice.
9
<PAGE>
Delivery of this Letter, the Original Notes and all other required
documents by whatever method you choose is at your sole risk. Delivery is
complete when the Exchange Agent actually receives the items to be delivered.
Delivery of documents to DTC in accordance with DTC's procedures does not
constitute delivery to the Exchange Agent. If delivery is by mail, then
registered mail, return receipt requested, properly insured, or an overnight
delivery service is recommended. In all cases, please allow sufficient time to
ensure timely delivery. If Original Notes are sent by mail, it is suggested
that the mailing be made sufficiently in advance of the Expiration Date to
permit delivery to the Exchange Agent prior to 5:00 p.m., New York City time, on
the Expiration Date.
See the "Exchange Offer" section of the Prospectus.
2. Partial Tenders (not applicable to holders of Original Notes who tender by
book-entry transfer).
If less than all of the Original Notes evidenced by a submitted certificate
are to be tendered, the tendering holder(s) should fill in the aggregate
principal amount of Original Notes to be tendered in the box above entitled
"Description of Original Notes--Principal Amount Tendered." A reissued
certificate representing the balance of nontendered Original Notes will be sent
to such tendering holder, unless otherwise provided in the appropriate box on
this Letter, promptly after the Expiration Date. All of the Original Notes
delivered to the Exchange Agent will be deemed to have been tendered unless
otherwise indicated.
3. Signatures on this Letter; Bond Powers and Endorsements; Guarantee of
Signatures.
If this Letter is signed by the registered holder of the Original Notes
tendered hereby, the signature must correspond exactly with the name as written
on the face of the certificates without any change whatsoever.
If any tendered Original Notes are owned of record by two or more joint
owners, all such owners must sign this Letter.
If any tendered Original Notes are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many separate
copies of this Letter as there are different registrations of certificates.
When this Letter is signed by the registered holder of the Original Notes
specified herein and tendered hereby, no endorsements of certificates or
separate bond powers are required. If, however, the Exchange Notes are to be
issued, or any untendered Original Notes are to be reissued, to a person other
than the registered holder, then endorsements of any certificates transmitted
hereby or separate bond powers are required. Signatures on such certificates
must be guaranteed by an Eligible Guarantor Institution.
If this Letter is signed by a person other than the registered holder of
any certificates specified herein, such certificates must be endorsed or
accompanied by appropriate bond powers, in either case signed exactly as the
name of the registered holder appears on the certificates and the signatures on
such certificates must be guaranteed by an Eligible Guarantor Institution.
10
<PAGE>
If this Letter or any certificates or bond powers are signed by trustees,
executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of their authority to so act must be
submitted.
ENDORSEMENTS ON CERTIFICATES FOR ORIGINAL NOTES OR SIGNATURES ON BOND
POWERS REQUIRED BY THIS INSTRUCTION 3 MUST BE GUARANTEED BY A FIRM WHICH IS A
MEMBER OF A REGISTERED NATIONAL SECURITIES EXCHANGE OR A MEMBER OF THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS, INC., BY A COMMERCIAL BANK OR TRUST COMPANY
HAVING AN OFFICE OR CORRESPONDENT IN THE UNITED STATES OR BY AN "ELIGIBLE
GUARANTOR INSTITUTION" WITHIN THE MEANING OF RULE 17Ad-15 UNDER THE SECURITIES
EXCHANGE ACT OF 1934.
SIGNATURES ON THIS LETTER NEED NOT BE GUARANTEED BY AN ELIGIBLE GUARANTOR
INSTITUTION, PROVIDED THE ORIGINAL NOTES ARE TENDERED: (I) BY A REGISTERED
HOLDER OF ORIGINAL NOTES (WHICH TERM, FOR PURPOSES OF THE EXCHANGE OFFER,
INCLUDES ANY PARTICIPANT IN THE DTC SYSTEM WHOSE NAME APPEARS ON A SECURITY
POSITION LISTING AS THE HOLDER OF SUCH ORIGINAL NOTES) TENDERED WHO HAS NOT
COMPLETED THE BOX ENTITLED "SPECIAL ISSUANCE INSTRUCTIONS" OR "SPECIAL DELIVERY
INSTRUCTIONS" ON THIS LETTER, OR (II) FOR THE ACCOUNT OF AN ELIGIBLE GUARANTOR
INSTITUTION.
4. Special Issuance and Delivery Instructions.
Tendering holders of Original Notes should indicate in the applicable box
the name and address to which Exchange Notes issued pursuant to the Exchange
Offer and/or substitute certificates evidencing Original Notes not exchanged are
to be issued or sent, if different from the name or address of the person
signing this Letter. In the case of issuance in a different name, the employer
identification or social security number of the person named must also be
indicated. A holder of Original Notes tendering Original Notes by book-entry
transfer may request that Original Notes not exchanged be credited to such
account maintained at DTC as such holder of Original Notes may designate hereon.
If no such instructions are given, such Original Notes not exchanged will be
returned to the name or address of the person signing this Letter.
5. Tax Identification Number.
Federal income tax law generally requires that a tendering holder whose
Original Notes are accepted for exchange must provide the Company (as payor)
with such holder's correct Taxpayer Identification Number ("TIN") on Substitute
Form W-9 below, which, in the case of a tendering holder who is an individual,
is his or her social security number. If the Company is not provided with the
current TIN or an adequate basis for an exemption, such tendering holder may be
subject to a $50 penalty imposed by the Internal Revenue Service. In addition,
delivery of Exchange Notes to such tendering holder may be subject to backup
withholding in an amount
11
<PAGE>
equal to 31% of all reportable payments made after the exchange. If withholding
results in an overpayment of taxes, a refund may be obtained.
Exempt holders of Original Notes (including, among others, all corporations
and certain foreign individuals) are not subject to these backup withholding and
reporting requirements. See the enclosed Guidelines of Certification of
Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for
additional instructions.
To prevent backup withholding, each tendering holder of Original Notes must
provide its correct TIN by completing the "Substitute Form W-9" set forth below,
certifying that the TIN provided is correct (or that such holder is awaiting a
TIN) and that (i) the holder is exempt from backup withholding, (ii) the holder
has not been notified by the Internal Revenue Service that such holder is
subject to a backup withholding as a result of a failure to report all interest
or dividends or (iii) the Internal Revenue Service has notified the holder that
such holder is no longer subject to backup withholding. If the tendering holder
of Original Notes is a nonresident alien or foreign entity not subject to backup
withholding, such holder must give the Company a completed Form W-8, Certificate
of Foreign Status. These forms may be obtained from the Exchange Agent. If the
Original Notes are in more than one name or are not in the name of the actual
owner, such holder should consult the W-9 Guidelines for information on which
TIN to report. If such holder does not have a TIN, such holder should consult
the W-9 Guidelines for instructions on applying for a TIN, check the box in Part
2 of the Substitute Form W-9 and write "applied for" in lieu of its TIN. Note:
checking this box and writing "applied for" on the form means that such holder
has already applied for a TIN or that such holder intends to apply for one in
the near future. If such holder does not provide its TIN to the Company within
60 days, backup withholding will begin and continue until such holder furnishes
its TIN to the Company.
6. Transfer Taxes.
The Company will pay the transfer taxes for the exchange of the Original
Notes in the Exchange Offer. If, however, Exchange Notes are delivered to or
issued in the name of a person other than the registered holder, or if a
transfer tax is imposed for any reason other than for the exchange of Original
Notes in the Exchange Offer, then the tendering holder will pay the transfer
taxes. If a tendering holder does not submit satisfactory evidence of payment
of taxes or exemption from taxes with the Letter, the taxes will be billed to
the tendering holder.
EXCEPT AS PROVIDED IN THIS INSTRUCTION 6, IT IS NOT NECESSARY FOR TRANSFER
TAX STAMPS TO BE AFFIXED TO THE ORIGINAL NOTES SPECIFIED IN THIS LETTER.
7. Waiver of Conditions.
The Company reserves the right to waive any or all conditions enumerated in
the Prospectus.
12
<PAGE>
8. No Conditional Tenders.
No alternative, conditional, irregular or contingent tenders will be
accepted. All tendering holders of Original Notes, by execution of this Letter,
shall waive any right to receive notice of the acceptance of their Original
Notes for exchange.
Neither the Company, any affiliates or assigns of the Company, the Exchange
Agent nor any other person is under any obligation to give notice of any
irregularities in tender nor will they be liable for failing to give such
notice.
9. Mutilated, Lost, Stolen or Destroyed Original Notes.
Any holder whose Original Notes have been mutilated, lost, stolen or
destroyed should contact the Exchange Agent at the address indicated above for
further instructions.
10. Requests for Assistance or Additional Copies.
Questions relating to the procedure for tendering, as well as requests for
additional copies of the Prospectus and this Letter, may be directed to the
Exchange Agent, at the address and telephone number indicated above.
13
<PAGE>
TO BE COMPLETED BY ALL TENDERING HOLDERS
(See Instruction 5)
PAYOR'S NAME: U.S. BANK TRUST NATIONAL ASSOCIATION
<TABLE>
<CAPTION>
<S> <C> <C>
SUBSTITUTE Form W-9 Part 1 -- PLEASE PROVIDE YOUR TIN:
TIN IN THE BOX AT RIGHT AND --------------------------
CERTIFY BY SIGNING AND DATING (Social Security Number or
BELOW. Employer Identification Number)
Department of the Treasury Part 2 -- TIN Applied For [ ]
Internal Revenue Service
Payor's Request for Taxpayer CERTIFICATION: UNDER THE PENALTIES OF PERJURY, I CERTIFY THAT:
Identification Number (1) the number shown on this form is my correct Taxpayer
("TIN") and Certification Identification Number (or I am waiting for a number to be
issued to me).
(2) I am not subject to backup withholding either because:
(a) I am exempt from Taxpayer backup withholding, or (b) I have
not been notified by the Internal Revenue Service (the "IRS")
that I am subject to backup withholding as a result of a
failure to report all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to backup withholding,
and
(3) any other information provided on this form is true and
correct.
SIGNATURE
-----------------------------------------------------------
DATE
---------------------------------------------------------------
</TABLE>
You must cross out item (2) of the above certification if you have been notified
by the IRS that you are subject to backup withholding because of underreporting
of interest or dividends on your tax return and you have not been notified by
the IRS that you are no longer subject to backup withholding.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED
THE BOX IN PART 2 OF SUBSTITUTE FORM W-9
14
<PAGE>
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the exchange, thirty-one
percent (31%) of all reportable payments made to me thereafter will be withheld
until I provide a number.
- --------------------------------- -------------------
Signature Date
15
<PAGE>
EXHIBIT 99.2
FORM OF NOTICE OF GUARANTEED DELIVERY FOR
POTLATCH CORPORATION
This form or one substantially equivalent hereto must be used to accept the
Exchange Offer of Potlatch Corporation (the "Company") made pursuant to the
Prospectus, dated _____ __, 1999 (the "Prospectus"), and the enclosed Letter of
Transmittal (the "Letter of Transmittal") if certificates for Original Notes are
not immediately available or if the procedure for book-entry transfer cannot be
completed on a timely basis or time will not permit all required documents to
reach the Company prior to 5:00 P.M., New York City time, on the Expiration Date
of the Exchange Offer. Such form may be delivered or transmitted by facsimile
transmission, mail or hand delivery to U.S. Bank Trust National Association (the
"Exchange Agent") as set forth below. In addition, in order to utilize the
guaranteed delivery procedure to tender Original Notes pursuant to the Exchange
Offer, a completed, signed and dated Letter of Transmittal (or facsimile
thereof) must also be received by the Exchange Agent prior to 5:00 P.M., New
York City time, on the Expiration Date. Capitalized terms not defined herein
are defined in the Prospectus.
DELIVERY TO: U.S. BANK TRUST NATIONAL ASSOCIATION, EXCHANGE AGENT
By Mail and by Overnight Courier or Hand:
----------------------------------------
U.S. Bank Trust
180 East Fifth Street
4th Floor Window
St. Paul, MN 55101
Attention: Specialized Finance
Confirm:
-------
Not available until expiration date of offer known
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, OR
TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH ABOVE, WILL
NOT CONSTITUTE A VALID DELIVERY.
<PAGE>
Ladies and Gentlemen:
Upon the terms and conditions set forth in the Prospectus and the
accompanying Letter of Transmittal, the undersigned hereby tenders to the
Company the principal amount of Original Notes set forth below, pursuant to the
guaranteed delivery procedures described in the "Exchange Offer -- Guaranteed
Delivery Procedures" section of the Prospectus.
Principal Amount of Original Notes Name(s) of Record Holders(s):
Tendered:
$
------------------------------------- -----------------------------------
-----------------------------------
Certificate Nos. (if available):
------ Address(es):
-----------------------
- --------------------------------------
-----------------------------------
If Original Notes will be delivered by
book-entry transfer to The Depositary Area Code and Telephone Number(s):
Trust Company, provide account number.
Account Number
----------------------- -----------------------------------
Signature(s):
-----------------------------------
-----------------------------------
THE ACCOMPANYING GUARANTEE MUST BE COMPLETED.
-2-
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm that is a member firm of a registered national
securities exchange or of the National Association of Securities Dealers, Inc.,
a commercial bank or trust company having an office correspondent in the United
States or any "eligible guarantor institution" within the meaning of Rule 17Ad-
15 of the Securities Exchange Act of 1934, as amended, hereby (a) guarantees to
deliver to the Exchange Agent, at one its address set forth in the Notice of
Guaranteed Delivery, the certificates representing all tendered Original Notes,
in proper form for transfer, or a book-entry confirmation (a confirmation of a
book-entry transfer of Original Notes into the Exchange Agent's account at DTC),
together with a properly completed and duly executed Letter of Transmittal (or
facsimile thereof), with any required signature guarantees, and any other
documents required by the Letter of Transmittal within three New York Stock
Exchange trading days after the date of execution of this Notice of Guaranteed
Delivery.
Name of Firm:
---------------------------- --------------------------------
(Authorized Signature)
Address:
--------------------------------
Title:
--------------------------
- -----------------------------------------
Name:
---------------------------
Area Code and Telephone Number:
---------- Date:
---------------------------
- ------------------------------------------
-3-
<PAGE>
EXHIBIT 99.3
FORM OF LETTER
POTLATCH CORPORATION
Offer to Exchange
6.25% Notes due March 15, 2002, which have been registered under the
Securities Act of 1933, as amended, for any and all outstanding 6.25% Notes due
March 15, 2002
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Upon and subject to the terms and conditions set forth in the Prospectus,
dated _____ ___, 1999 (the "Prospectus"), and the enclosed Letter of Transmittal
(the "Letter of Transmittal"), an offer to exchange (the "Exchange Offer") the
registered 6.25% Notes due March 15, 2002 (the "Exchange Notes") for any and all
outstanding 6.25% Notes due March 15, 2002 (the "Original Notes") (CUSIP No.
737628AG2) is being made pursuant to such Prospectus. The Exchange Offer is
being made in order to satisfy certain obligations of Potlatch Corporation (the
"Company") contained in the Registration Rights Agreement, dated as of March 15,
1999, between the Company and Salomon Smith Barney Inc. (as the Initial
Purchaser).
We are requesting that you contact your clients for whom you hold Original
Notes regarding the Exchange Offer. For your information and for forwarding to
your clients for whom you hold Original Notes registered in your name or in the
name of your nominee, or who hold Original Notes registered in their own names,
we are enclosing the following documents:
1. Prospectus dated _____ __, 1999;
2. The Letter of Transmittal for your use and for the information of your
clients;
3. A Notice of Guaranteed Delivery to be used to accept the Exchange
Offer if certificates for Original Notes are not immediately available or time
will not permit all required documents to reach the Exchange Agent prior to
the Expiration Date (as defined below) or if the procedure for book-entry
transfer cannot be completed on a timely basis; and
4. A form of letter which may be sent to your clients for whose account
you hold Original Notes registered in your name or the name of your nominee,
with space provided for obtaining such clients' instructions with regard to
the Exchange Offer.
Your prompt action is requested. The Exchange Offer will expire at 5:00
p.m., New York City time, on _____ ___, 1999 (the "Expiration Date") (30
calendar days following the commencement of the Exchange Offer), unless extended
by the Company. Original Notes
<PAGE>
tendered pursuant to the Exchange Offer may be withdrawn at any time before the
Expiration Date.
To participate in the Exchange Offer, a duly executed and properly
completed Letter of Transmittal (or facsimile thereof), with any required
signature guarantees and any other required documents, should be sent to the
Exchange Agent and certificates representing the Original Notes should be
delivered to the Exchange Agent, all in accordance with the instructions set
forth in the Letter of Transmittal and the Prospectus.
If holders of Original Notes wish to tender, but it is impracticable for
them to forward their certificates for Original Notes prior to the expiration of
the Exchange Offer or to comply with the book-entry transfer procedures on a
timely basis, a tender may be effected by following the guaranteed delivery
procedures described in the Prospectus under the caption "Exchange Offer--
Procedures for Tendering Original Notes--Guaranteed Delivery Procedures."
Additional copies of the enclosed material may be obtained from the
Exchange Agent.
Exchange Agent Telephone:
Not available until expiration date of offer known
Facsimile: (651) 244-1537
POTLATCH CORPORATION
-2-
<PAGE>
EXHIBIT 99.4
FORM OF LETTER
POTLATCH CORPORATION
Offer to Exchange
6.25% Notes due March 15, 2002, which have been registered under the
Securities Act of 1933, as amended, for any and all outstanding 6.25% Notes due
March 15, 2002
To Our Clients:
Enclosed for your consideration is a Prospectus of Potlatch Corporation, a
Delaware corporation ("Potlatch"), dated _____ __, 1999 (the "Prospectus"), and
the enclosed Letter of Transmittal (the "Letter of Transmittal") relating to the
offer to exchange (the "Exchange Offer") the registered 6.25% Notes due March
15, 2002 of Potlatch (the "Exchange Notes") for any and all outstanding 6.25%
Notes due March 15, 2002 of Potlatch (the "Original Notes") (CUSIP No.
737627AG12), upon the terms and subject to the conditions described in the
Prospectus. The Exchange Offer is being made in order to satisfy certain
obligations of Potlatch contained in the Registration Rights Agreement, dated as
of March 15, 1999, between Potlatch and Salomon Smith Barney Inc. (as the
Initial Purchaser).
This material is being forwarded to you as the beneficial owner of the
Original Notes carried by us in your account but not registered in your name. A
TENDER OF SUCH ORIGINAL NOTES MAY ONLY BE MADE BY US AS THE HOLDER OF RECORD AND
PURSUANT TO YOUR INSTRUCTIONS.
Accordingly, we request instructions as to whether you wish us to tender on
your behalf the Original Notes held by us for your account, pursuant to the
terms and conditions set forth in the enclosed Prospectus and Letter of
Transmittal. We also request that you confirm that we may, on your behalf, make
the representations and warranties contained in the Letter of Transmittal.
Your instructions should be forwarded to us as promptly as possible in
order to permit us to tender the Original Notes on your behalf in accordance
with the provisions of the Exchange Offer. THE EXCHANGE OFFER WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON _________ __, 1999 (THE "EXPIRATION DATE") (30
CALENDAR DAYS FOLLOWING THE COMMENCEMENT OF THE EXCHANGE OFFER), UNLESS EXTENDED
BY POTLATCH. ANY ORIGINAL NOTES TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE
WITHDRAWN AT ANY TIME BEFORE 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION
DATE.
<PAGE>
Your attention is directed to the following:
1. The Exchange Offer is for any and all Original Notes.
2. The Exchange Offer is subject to certain conditions set forth in the
Prospectus in the section captioned the "Exchange Offer -- Conditions to the
Exchange Offer."
3. Any transfer taxes incident to the transfer of Original Notes from the
holder to Potlatch will be paid by Potlatch, except as otherwise provided in the
Instructions in the Letter of Transmittal.
4. The Exchange Offer expires at 5:00 p.m., New York City time, on the
Expiration Date unless extended by Potlatch.
If you wish to have us tender your Original Notes, please so instruct us
by completing, executing and returning to us the instruction form set forth
below. The Letter of Transmittal is furnished to you for information only and
may not be used directly by you to tender Original Notes.
-2-
<PAGE>
Instructions with Respect to the Exchange Offer
The undersigned acknowledge(s) receipt of your letter enclosing the
Prospectus, dated _____ __, 1999, of Potlatch Corporation, a Delaware
corporation, and the related specimen Letter of Transmittal.
This will instruct you to tender the number of Original Notes indicated
below held by you for the account of the undersigned, pursuant to the terms and
conditions set forth in the Prospectus and the related Letter of Transmittal.
(Check one).
Box 1 [_] Please tender my Original Notes held by you for my account. If I do
not wish to tender all of the Original Notes held by you for my
account, I have identified on a signed schedule attached hereto the
number of Original Notes that I do not wish tendered.
Box 2 [_] Please do not tender any Original Notes held by you for my account.
Date , 1999
__________________ ________________________________________
Signature(s)
________________________________________
________________________________________
Please print name(s) here
________________________________________
Area Code and Telephone No.
UNLESS A SPECIFIC CONTRARY INSTRUCTION IS GIVEN IN THE SPACE PROVIDED, YOUR
SIGNATURE(S) HEREON SHALL CONSTITUTE AN INSTRUCTION TO US TO TENDER ALL ORIGINAL
NOTES.
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