Exhibit 1(a)
WAL-MART STORES, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT
July 26, 2001
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
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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
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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 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;
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(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 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
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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 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
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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 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
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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 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
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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 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
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(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 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)
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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) Xxxxxxx Xxxxxxx & Xxxxxxxx, 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) Xxxxxxx X. Xxxxxx, Esq., counsel for the Company, shall
have furnished to the Representatives his written opinion, dated the
Time of Delivery for such 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) Xxxxxx & Xxxx, 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
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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);
(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;
11
(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 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
12
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 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
13
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;
Such counsel may rely, with respect to matters of New York law, on the written
opinion of Fulbright & Xxxxxxxx LLP, provided that such opinion is in form and
substance satisfactory to the Representatives and a copy thereof shall be
delivered to the Representatives at the Time of Delivery for such Designated
Securities.
(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;
(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
atters 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;
14
(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
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 will 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
15
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
against any losses, claims, damages or liabilities to which the Company 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 for any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending any such
action or claim as such expenses are incurred.
(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 on the
one hand and the Underwriters of the Designated Securities on the other
from the offering of the
16
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 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 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 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 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 under this Section 10 shall be in
addition to any liability that the Company 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 to each person, if any, who controls the Company 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
17
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.
(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.
18
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.
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
19
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.
20
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: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Senior Vice President and Treasurer
WAL-MART CAYMAN (EURO) FINANCE CO.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President of Planning &
Analysis
WAL-MART CAYMAN (CANADIAN) FINANCE CO.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President of Planning &
Analysis
WAL-MART CAYMAN (STERLING) FINANCE CO.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President of Planning &
Analysis
Accepted as of the date hereof:
XXXXXX BROTHERS INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
/s/ Xxxxxxx, Sachs & Co.
--------------------------------------------
(Xxxxxxx, Xxxxx & Co.)
For themselves and as Representatives of
the several Underwriters named in
Schedule I to the Pricing Agreement
