EXHIBIT 1
WAL-MART STORES, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
_________, 200_
The Underwriters Listed on Schedule I
to the Pricing Agreement (as defined herein)
Dear Sirs:
From time to time WAL-MART STORES, INC., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities, for whom the firms designated as
representatives of the Underwriters of such Securities in the Pricing Agreement
relating thereto will act as representatives (the "Representatives"). The term
"Representatives" also refers to a single firm acting as sole representative of
the Underwriters and to Underwriters who act without any firm being designated
as their representative. This Underwriting Agreement shall not be construed as
an obligation of the Company to sell any of the Securities or as an obligation
of the Underwriter to purchase the Securities. The obligation of the Company to
issue and sell any of the Securities shall be evidenced by the Pricing Agreement
with respect to the Designated Securities specified therein. Each Pricing
Agreement shall specify (a) in Schedule I thereto (i) the names of the
Underwriters of such Designated Securities and (ii) the principal amount of
Designated Securities to be purchased by each Underwriter on the Time of
Delivery (as defined herein) and (b) in Schedule II thereto (i) the title or
titles of the Designated Securities, (ii) the aggregate principal amount or
amounts of the Designated Securities, (iii) the initial public offering price of
the Designated Securities, (iv) the purchase price or prices to the Underwriters
of the Designated Securities, and, to the extent applicable, the selling
concession or concessions and reallowance concession or concessions applicable
to the Underwriters and dealers, as the case may be, (v) specified funds, if
any, for payment of the purchase price for the Designated Securities, (vi) the
title of the Indenture under which the Designated Securities are being issued,
(vii) the maturity or maturities of the Designated Securities, (viii) the
interest rate or rates of the Designated Securities, (ix) the interest payment
dates of the Designated Securities, (x) the record date or dates of the
Designated Securities, (xi) the redemption provisions, if any, of the Designated
Securities, (xii) the sinking fund provisions, if any, of the Designated
Securities, (xiii) the Time of Delivery, (xiv) the closing location with respect
to the closing of the sale of the Designated Securities pursuant to this
Agreement and the Pricing Agreement, (xv) the name or names and address or
addresses of the Representatives of the Underwriters and (xvii) such other
terms, conditions or other provisions that supplement, amend or modify this
Agreement or the Indenture with respect to the Designated Securities. A Pricing
Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement in respect of the Securities (File No.
333-64740) has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective
amendments thereto, each in the form heretofore delivered or to be
delivered to the Representatives and, excluding exhibits to such
registration statement but including all documents incorporated by
reference in each prospectus contained therein, delivered to the
Representatives for each of the other Underwriters has been declared
effective by the Commission in such form; no other document with respect to
such registration statement or document incorporated by reference therein
has heretofore been filed or transmitted for filing with the Commission;
and no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), being hereinafter
called a "Preliminary Prospectus"); the various parts of such registration
statement, including all exhibits thereto and the documents incorporated by
reference in the prospectus contained in the registration statement at the
time such part of the registration statement became effective but excluding
Form T-1, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "Registration
Statement"; each prospectus relating to the Securities, in the form in
which it has most recently been filed, or transmitted for filing, with the
Commission on or prior to the date of this Agreement, being hereinafter
called the "Prospectus"; any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to the applicable form under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or the Prospectus, as the case may be, under the Securities
2
Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by
reference in such Preliminary Prospectus or Prospectus, as the case may be;
any reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the applicable
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to the
Prospectus as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 6(a)
hereof, including any documents incorporated by reference therein as of the
date of such filing;
(b) The documents incorporated by reference in the Prospectus, when
they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; and any further documents so filed and incorporated by
reference in the Prospectus or any further amendment or supplement thereto,
when such documents become effective or are filed with the Commission, as
the case may be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not 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; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through the Representatives expressly
for use in the Prospectus as amended or supplemented relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act") and the rules and regulations of the Commission thereunder
and do not and will not, as of the applicable effective dates as to the
Registration Statement and any amendments thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company
by an Underwriter of Designated Securities through the Representatives
expressly for use in the Prospectus as amended or supplemented relating to
such Securities;
(d) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the
3
Prospectus any material loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change in the
capital stock or long-term debt of the Company or any of its subsidiaries
or any material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus;
(e) The Company and its subsidiaries have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not individually or in the aggregate materially affect the
consolidated financial position, stockholders' equity or results of
operation of the Company and its subsidiaries and do not interfere with the
use made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by the
Company and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries;
(f) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate trademarks, service marks and trade names
necessary to conduct the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement
of or conflict with asserted rights of others with respect to any
trademarks, service marks or trade names that, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would
materially adversely affect the conduct of the business, operations,
financial condition or income of the Company and its subsidiaries
considered as one enterprise;
(g) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties, or conducts any business, so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable and all of the
4
issued shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued, are fully paid and nonassessable
and (except for directors' qualifying shares and except as otherwise set
forth in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(i) The Securities have been duly authorized, and, when the Designated
Securities are issued and delivered pursuant to this Agreement and the
Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture, which will
be substantially in the form filed as an exhibit to each of the
Registration Statements; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, at the Time of Delivery for
such Designated Securities (as defined in Section 5 hereof), the Indenture
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture conforms, and the Designated Securities will conform, to the
descriptions thereof contained in the Prospectus as amended or supplemented
with respect to such Designated Securities;
(j) The issue and sale of the Securities and the compliance by the
Company with all of the provisions of the Securities, the Indenture, this
Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such action result
in any violation of the provisions of the Certificate of Incorporation or
Bylaws of the Company or any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification of
or with any such court or governmental agency or body is required for the
issue and sale of the Securities or the consummation by the Company of the
transactions contemplated by this Agreement or any Pricing Agreement or the
Indenture, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
(k) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, would
5
individually or in the aggregate have a material adverse effect on the
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others; and
(l) Ernst & Young LLP, who have certified certain financial statements
of the Company and its subsidiaries, are, to the best knowledge of
management of the Company, independent public accountants as required by
the Act and the rules and regulations of the Commission thereunder.
3. Each of Wal-Mart Cayman (Euro) Finance Co., Wal-Mart Cayman (Canadian)
Finance Co. and Wal-Mart Cayman (Sterling) Finance Co., as wholly-owned
subsidiaries of the Company and as parties to the Indenture (collectively, the
"Finance Subsidiaries"), jointly and severally represent and warrant to, and
agree with, each of the Underwriters to the effect set forth in Sections 2(a),
2(b), 2(c), 2(d), 2(g), 2(i) and 2(j) to the fullest extent applicable to each
such Finance Subsidiary (with references to the Company in such Sections being
deemed to refer to the Finance Subsidiaries for purposes of this Section 3).
4. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release of
such Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
prospectus as amended or supplemented.
5. Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto, in definitive form to the extent
practicable, and in such authorized denominations and registered in such name as
the Representatives may request upon at least forty-eight hours' prior notice to
the Company, shall be delivered by or on behalf of the Company to the
representatives, against payment by such Underwriter or on its behalf of the
purchase price therefor by certified or official bank check or checks, payable
to the order of the Company in the funds specified in such Pricing Agreement,
all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
6. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation
to the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on the second
business day following the execution and delivery of the Pricing Agreement
relating to the applicable Designated Securities or, if applicable, such
earlier time as may be required by Rule 424(b); to make no further
amendment or any supplement to the Registration Statements or Prospectus as
amended or supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such Securities that
shall be disapproved by the Representatives for such Securities promptly
after reasonable notice thereof; to advise the Representatives
6
promptly of any such amendment or supplement after such Time of Delivery
and furnish the Representatives with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to be
filed by the Company with the Commission pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus
is required in connection with the offering or sale of such Securities, and
during such same period to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statements has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the Commission, of
the issuance by the Commission of any stop order or of any order preventing
or suspending the use of any prospectus relating to the Securities, of the
suspension of the qualification of such Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statements or Prospectus or for
additional information; and, in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any
prospectus relating to the Securities or suspending any such qualification,
to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such Securities,
provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus as
amended or supplemented in such quantities as the Representatives may from
time to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of the
Securities and if at such time any event shall have occurred as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus or to file under the
Exchange Act any document incorporated by reference in the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify the Representatives and upon their request to file such document
and to prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from time to
time reasonably request of an amended Prospectus or a supplement to the
Prospectus that will correct such statement or omission or effect such
compliance;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration
7
Statement (as defined in Rule 158(c)), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with Section
11(a) of the Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier
of (i) the termination of trading restrictions for such Designated
Securities, as notified to the Company by the Representatives and (ii) the
Time of Delivery for such Designated Securities, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
that mature more than one year after such Time of Delivery and that are
substantially similar to such Designated Securities, without the prior
written consent of the Representatives;
(f) To furnish to the holders of the Securities, upon such holders'
request, as soon as practicable after the end of each fiscal year an annual
report (including a balance sheet and statements of income, stockholders'
equity and cash flow of the Company and its consolidated subsidiaries
certified by independent public accountants) and, as soon as practicable
after the end of each of the first three quarters of each fiscal year
(beginning with the fiscal quarter ending after the effective date of the
Registration Statements), consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail; and
(g) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and deliver
to you (i) as soon as they are available, copies of any reports and
financial statements furnished to or filed with the Commission or any
national securities exchange on which the Securities or any class of
securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may
from time to time reasonably request (such financial information and
statements to be on a consolidated basis in reports furnished to its
stockholders generally or to the Commission); and
(h) To use the net proceeds received by it from the sale of the
Designated Securities pursuant to this Agreement in the manner specified in
the Prospectus, including in any supplement thereto, relating to the offer
and sale of the Designated Securities.
7. Each of the Finance Subsidiaries jointly and severally agrees with each
of the Underwriters of the Designated Securities to the effect set forth in
Sections 6(a), 6(c), 6(e) and 6(g) to the fullest extent applicable to each such
Finance Subsidiary (with references to the Company in such Sections being deemed
to refer to the Finance Subsidiaries for purposes of this Section 7).
8. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities
8
under the Act and all other expenses in connection with the preparation,
printing and filing of the Registration Statements, any Preliminary Prospectus
and the Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any Agreement among Underwriters, this Agreement, any
Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda
and any other documents in connection with the offering, purchase, sale and
delivery of the Securities; (iii) all expenses in connection with the
qualification of the Securities for offering and sale under state securities
laws as provided in Section 6(b) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky and legal investment surveys; (iv) any fees charged
by securities rating services for rating the Securities; (v) the cost of
preparing the Securities; (vi) the fees and expenses of any Trustee and any
agent of any Trustee and the fees and disbursements of counsel for any Trustee
in connection with any Indenture and the Securities; and (vii) all other costs
and expenses incident to the performance of its obligations hereunder that are
not otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section 8, Section 10 and Section 12
hereof, the Underwriters will pay all of their own costs and expenses including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them and any advertising expenses connected with any offers they may make.
9. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance
with Section 6(a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, shall
have furnished to the Representatives such opinion or opinions, dated the
Time of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Indenture, the Designated
Securities, the Registration Statements, the Prospectus as amended or
supplemented and other related matters as the Representatives may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., counsel for the Company, shall have
furnished to the Representatives his written opinion, dated the Time of
Delivery for such
9
Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that the Company and its subsidiaries have
good and marketable title in fee simple to all real property owned by them,
in each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not individually or
in the aggregate materially affect the consolidated financial position,
stockholders' equity or results of operation of the Company and do not
materially interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not materially interfere with the use made and
proposed to be made of such property and buildings by the Company and its
subsidiaries (in giving the opinion in this clause, such counsel may state
that no examination of record titles for the purpose of such opinion has
been made, and that he is relying upon a general review of the titles of
the Company and its subsidiaries, upon opinions of local counsel and
abstracts, reports and policies of title companies rendered or issued at or
subsequent to the time of acquisition of such property by the Company or
its subsidiaries, upon opinions of counsel to the lessors of such property
and, in respect of matters of fact, upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state that he
believes that both the Representatives and he are justified in relying upon
such opinions, abstracts, reports, policies and certificates);
(d) ▇▇▇▇▇▇ & ▇▇▇▇, LLP, outside counsel for the Company, shall have
furnished to the Representatives their written opinion, dated the Time of
Delivery for such Designated Securities, in form and substance satisfactory
to the Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and nonassessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction (such
counsel being entitled to rely in respect of the opinion in this clause
upon opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such counsel
shall state that they believe that both the Representatives and they
are justified in relying upon such opinions and certificates);
10
(iv) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation; and all of the issued shares
of capital stock of each such subsidiary have been duly and validly
authorized and issued, are fully paid and nonassessable, and (except
for directors' qualifying shares and except as otherwise set forth in
the Prospectus) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims (such counsel
being entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries, provided
that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions
and certificates);
(v) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to
the Designated Securities have been duly authorized, executed and
delivered by the Company;
(vii) The Designated Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture; and are enforceable against the Company
entitled to the benefits provided by the Indenture and are enforceable
against the Company in accordance with the terms of the Designated
Securities; and the Designated Securities and the Indenture conform to
the descriptions thereof in the Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles; and the Indenture has been duly qualified
under the Trust Indenture Act;
(ix) The issue and sale of the Designated Securities and the
compliance by the Company with all of the provisions of the Designated
Securities, the Indenture, this Agreement and the Pricing Agreement
with respect to the
11
Designated Securities and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument known to such counsel to which the
Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject, nor will such actions
result in any violation of the provisions of the Certificate of
Incorporation or Bylaws of the Company or any statute or any order,
rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties;
(x) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement or the Indenture, except such as
have been obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Designated Securities by the
Underwriters;
(xi) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects with
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when they became
effective or were so filed, as the case may be, contained, in the case
of a registration statement that became effective under the Act, an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or, in the case of other documents that were
filed under the Act or the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such documents were so
filed, not misleading; and
(xii) The Registration Statements and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Company prior to the Time of Delivery for the Designated
Securities (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
Trust Indenture Act and the rules and regulations thereunder; they have
no reason to believe that, as of their respective effective dates, the
Registration Statements or any further amendment thereto made by the
12
Company prior to the Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinions contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that, as of
its date, the Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior to the Time
of Delivery other than the financial statements and related schedules
therein as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein in light of the circumstances
in which they were made, not misleading or that, as of the Time of
Delivery, either the Registration Statements or the Prospectus as
amended or supplemented or any further amendment or supplement thereto
made by the Company prior to the Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; and they do not know of any amendment to the
Registration Statements required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statements or required to be incorporated by reference
into the Prospectus as amended or supplemented or required to be
described in the Registration Statements or the Prospectus as amended
or supplemented that are not filed or incorporated by reference or
described as required;
(xiii) The statements made in any tax consequences or tax
considerations sections in the Prospectus, including in any supplement
thereto, insofar as they purport to constitute summaries of matters of
United States federal tax law and regulations or legal conclusions with
respect thereto, constitute accurate summaries of the matters described
therein in all material respects; and
(xiv) Each Registration Statement registering the offer and sale
of the Designated Securities has become effective under the Act, and
the Prospectus relating to the Designated Securities, including all
amendments and supplements thereto, was filed within the prescribed
time periods pursuant to Rule 424(b) of the rules and regulations under
the Act and, to our knowledge, no stop order suspending the
effectiveness of the Registration Statements has been issued or
proceeding for the purpose has been instituted or threatened by the
Commission;
(e) Walkers, Cayman Islands counsel for the Finance Subsidiaries,
shall have furnished to the Representatives their written opinion, dated
the Time of Delivery for such Designated Securities, in form and substance
satisfactory to the Representatives, (i) substantially to the effect set
forth in Sections 9(d)(i), 9(d)(vi), 9(d)(viii), 9(d)(ix) and 9(d)(x) to
the fullest extent applicable to each such Finance Subsidiary (with
references to the Company in such Sections being deemed to refer to the
Finance Subsidiaries for purposes of this Section 9(e)) and (ii) with
respect to such other matters as the Representatives may reasonably
request;
13
(f) At the Time of Delivery for such Designated Securities, Ernst &
Young LLP shall have furnished to the Representatives a "comfort" letter or
letters dated such Time of Delivery as to such matters as the
Representatives may reasonably request and in form and substance
satisfactory to the Representatives;
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or
supplemented any loss or interference with its business from fire,
explosion, flood or other calamity whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus as amended or
supplemented, and (ii) since the respective dates as of which information
is given in the Prospectus as amended or supplemented there shall not have
been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, otherwise than as set forth or contemplated
in the Prospectus as amended or supplemented, the effect of which, in any
such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented;
(h) On or after the date of the Pricing Agreement relating to the
Designated Securities (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities (including, without limitation, any
guaranteed debt securities) by any "nationally recognized statistical
rating organization," as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities;
(i) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally
on the New York Stock Exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving
the United States or the declaration by the United States of a national
emergency or war if the effect of any such event specified in this clause
(iii) in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
prospectus as amended or supplemented; and
(j) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the Company herein at and as of such
14
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at, or prior to, such Time of
Delivery, as to the matters set forth in Sections 9(a) and 9(g) and as to
such other matters as the Representatives may reasonably request.
10. (a) The Company indemnify and hold harmless each Underwriter against
any losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities for actions in respect thereof, arise out
of or are based upon an untrue statement or alleged untrue statement, of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statements, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or included in
the Registration Statement, or any amendment 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 not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statements, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or included in
the Registration Statement, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter of Designated Securities expressly for use in the Prospectus as
amended or supplemented relating to such Securities.
(b) Each Underwriter will indemnify and hold harmless the Company and
the Finance Subsidiaries against any losses, claims, damages or liabilities to
which the Company and the Finance Subsidiaries may become subject, under the Act
or otherwise insofar as such losses, claims, damages or liabilities (or actions
in respect thereof), arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statements,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or included in the Registration Statement, or any amendment 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 not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statements,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or included in the Registration Statement, or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through the Representatives
expressly for use therein; and will reimburse the Company and the Finance
Subsidiaries for any legal or other expenses reasonably incurred by the Company
and the Finance Subsidiaries in connection with investigating or defending any
such action or claim as such expenses are incurred.
15
(c) Promptly after receipt by an indemnified party under Section 10(a) or
10(b) of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under
such subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability that it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other shall reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 10 is unavailable
to or insufficient to hold harmless an indemnified party under Section 10(a) or
10(b) in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities for actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Finance Subsidiaries on the one hand and the Underwriters
of the Designated Securities on the other from the offering of the Designated
Securities to which such loss, claim, damage or liability (or action in respect
thereof) relates. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under Section 10(c), then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Finance
Subsidiaries on the one hand and the Underwriters of the Designated Securities
on the other in connection with the statement or omissions that resulted in such
losses claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Finance Subsidiaries on the one hand and such
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from such offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Finance Subsidiaries on the one hand
or such Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company and the Finance Subsidiaries and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
10(d) were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to above in
this Section 10(d). The amount
16
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
Section 10(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 10(d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the applicable Designated Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
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. The
obligations of the Underwriters of Designated Securities in this Section 10(d)
to contribute are several in proportion to their respective underwriting
obligations with respect to such securities and are not joint.
(e) The obligations of the Company and the Finance Subsidiaries under
this Section 10 shall be in addition to any liability that the Company or the
Finance Subsidiaries may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
10 shall be in addition to any liability that the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director and officer of the Company and the Finance Subsidiaries and to each
person, if any, who controls the Company and the Finance Subsidiaries within the
meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities that it has agreed to purchase under the Pricing Agreement
relating to such Designated Securities, the Representatives may in their
discretion arrange for themselves or another party or other parties to purchase
such Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter the Representatives do not arrange
for the purchase of such Designated Securities, then the Company shall be
entitled to a further period of thirty-six hours within which to procure another
party or other parties satisfactory to the Representatives to purchase such
Designated Securities on such terms. In the event that, within the respective
prescribed period, the Representatives notify the Company that they have so
arranged for the purchase of such Designated Securities, or the Company notifies
the Representatives that it has so arranged for the Purchase of such Designated
Securities, the representatives or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statements or the Prospectus as amended or may
thereby be made necessary in the Registration Statements or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statements or the Prospectus that in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section 11
with like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
17
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in Section 11(a), the aggregate
principal amount of such Designated Securities that remains unpurchased does not
exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Designated Securities that such
Underwriter agreed to purchase under the Pricing Agreement relating to such
Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the principal amount of
Designated Securities that such Underwriter agreed to purchase under such
Pricing Agreement) of the Designated Securities of such defaulting Underwriter
or Underwriters for which such arrangements have not been made; but nothing
herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities or a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in Section 11(a), the aggregate
principal amount or Designated Securities that remains unpurchased exceeds one-
eleventh of the aggregate principal amount of the Designated Securities, as
referred to in Section 11(b), or if the Company shall not exercise the right
described in Section 11(b) to require non-defaulting Underwriters to purchase
Designated Securities of a defaulting Underwriter or underwriters then the
Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or
the Company, except for the expenses to be borne by the Company and the
Underwriters as provided in Section 8 hereof and the indemnity and contribution
agreements in Section 10 hereof but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
12. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the Finance Subsidiaries and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company or the Finance Subsidiaries or any director or officer or controlling
person of the Company or the Finance Subsidiaries, and shall survive delivery of
and payment for the Securities.
13. If any Pricing Agreement shall be terminated pursuant to Section 11
hereof the Company shall not then be under any liability to any Underwriter with
respect to the Designated Securities covered by such pricing Agreement except as
provided in Section 8 and Section 10 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 8 and Section 10 hereof.
18
14. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
15. All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Company or any Finance Subsidiaries, shall be delivered
or sent by mail, telex or facsimile transmission (which shall be effective upon
confirmation by telephone) to the address of the Company set forth in the
Registration Statements, Attention: Chief Executive Officer, with a copy to the
General Counsel of the Company; and, if to the Underwriters, shall be delivered
or sent by mail, telex or facsimile transmission (which shall be effective upon
confirmation by telephone) to the address or addresses of the Representative or
Representatives, as the case may be, as set forth in the Pricing Agreement,
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
hereof shall be delivered or sent by mail telex or facsimile transmission (which
shall be effective upon confirmation by telephone) to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representative or Representatives upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
16. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 10 and Section 11 hereof, the directors and officers of the
Company and the Finance Subsidiaries and each person who controls the Company or
any Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing Agreement. No purchaser
of any of the Securities from any Underwriter shall be deemed a successor or
assign by reason merely of such purchase.
17. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
18. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
19. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
19
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof.
Very truly yours,
WAL-MART STORES, INC.
By: __________________________________________
Name:
Title:
WAL-MART CAYMAN (EURO) FINANCE CO.
By: ____________________________
Name:
Title:
WAL-MART CAYMAN (CANADIAN) FINANCE CO.
By: ____________________________
Name:
Title:
WAL-MART CAYMAN (STERLING) FINANCE CO.
By: ____________________________
Name:
Title:
Accepted as of the date hereof:
[NAME OF REPRESENTATIVE]
By:
____________________________________
Name:
Title:
[[NAME OF REPRESENTATIVE]
By:
____________________________________
Name:
Title: ]
For themselves and as Representatives of
the several Underwriters named in
Schedule I to the Pricing Agreement
ANNEX I
PRICING AGREEMENT
_____________, 200_
__________________________
__________________________
As Representative[s] of the several
Underwriters named in Schedule I hereto
c/o ____________________
________________________
________________________
Dear Sirs:
Wal-Mart Stores, Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein and in the Underwriting
Agreement, dated __________, 200_, (the "Underwriting Agreement"), between the
Company on the one hand and ___________ on the other hand, to issue and sell to
the Underwriters named in Schedule I hereto (the "Underwriters") the Securities
specified in Schedule II hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein; and
each of the representations and warranties set forth therein shall be deemed to
have been made at and as of the date of this Pricing Agreement, except that each
representation and warranty that refers to the Prospectus in Section 2 or 3 of
the Underwriting Agreement shall be deemed to be a representation or warranty as
of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities that are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
A supplement to the Prospectus, relating to the Designated Securities, in
the form heretofore delivered to you, is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at the time and place
and at the purchase price to the Underwriters set forth in
Schedule II hereto, the principal amount of Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us three counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company and the Finance Subsidiaries.
Very truly yours,
WAL-MART STORES, INC.
By:
----------------------------------------
Name:
Title:
Acknowledged and agreed as
of the date hereof:
WAL-MART CAYMAN (EURO) FINANCE CO.
By: ____________________________
Name:
Title:
WAL-MART CAYMAN (CANADIAN) FINANCE CO.
By: ____________________________
Name:
Title:
WAL-MART CAYMAN (STERLING) FINANCE CO.
By: ____________________________
Name:
Title:
ANNEX I - Page 2
Accepted as of the date hereof:
[NAME OF REPRESENTATIVE]
By:
--------------------------------------
Name:
Title:
[[NAME OF REPRESENTATIVE]
By:
--------------------------------------
Name:
Title: ]
As Representative[s] of the several
Underwriters named in Schedule I hereto
SCHEDULE I
Principal Amount of
Designated Securities
Underwriter to be Purchased
---------------------------------------- -----------------------
............................... $
...............................
-----------------------
TOTAL........................ $
-----------------------
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
________________ due _________________ (the "Designated Securities").
AGGREGATE PRINCIPAL AMOUNT:
____________ of the Designated Securities.
PRICE TO PUBLIC:
__% of the principal amount of the Designated Securities, plus accrued
interest, if any, from _________________.
PURCHASE PRICE TO UNDERWRITERS:
__% of the principal amount of the Designated Securities, plus accrued
interest, if any, from _____________________.
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Immediately available funds by wire.
INDENTURE:
Indenture dated as of July 5, 2001, among the Company, Wal-Mart Cayman (Euro)
Finance Co., Wal-Mart Cayman (Canadian) Finance Co., Wal-Mart Cayman
(Sterling) Finance Co., as Issuers, Wal-Mart Stores, Inc., as Guarantor, and
Bank One Trust Company, NA, as Trustee.
MATURITY:
______________.
INTEREST RATE:
___% from and including the original issue date.
INTEREST PAYMENT DATES:
________________ and ________________ of each year, commencing _____________,
_____.
Schedule II - Page 1
INTEREST PAYMENT RECORD DATES:
_____________ and ______________ of each year, for the Interest
Payment Dates of ______________, 200_ and _____________, 200_, respectively.
REDEMPTION PROVISIONS:
_________________________.
SINKING FUND PROVISIONS:
_________________________.
TIME OF DELIVERY:
_____ a.m., __________________
CLOSING LOCATION:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NAMES AND ADDRESSES OF REPRESENTATIVE[S]:
______________________________
______________________________
______________________________
ADDRESSES FOR NOTICES:
______________________________
______________________________
______________________________
OTHER:
______________________________
______________________________
______________________________
Schedule II - Page 2