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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
June 2, 1998
Wal-Mart Stores, Inc.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Delaware 001-06991 71-0415188
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(STATE OR OTHER (COMMISSION FILE NUMBER) (IRS EMPLOYER
JURISDICTION OF IDENTIFICATION NO.)
INCORPORATION)
702 S.W. 8th Street
Bentonville, Arkansas 72716
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Registrant's telephone number, including area code:
(501) 273-4000
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ITEM 5. OTHER EVENTS.
On June 2, 1998, the Securities and Exchange Commission (the "Commission")
declared effective a Registration Statement on Form S-3 of Wal-Mart Stores, Inc.
(the "Company"), Registration Statement No. 333-52045 (the "1998 Registration
Statement"), pursuant to which the Company registered for the shelf $750,000,000
of its Debt Securities. On June 2, 1998, the Company commenced an underwritten
offering (the "Offering") of $500,000,000 aggregate principal amount of its
Puttable Reset Securities due June 1, 2018 (the "Bonds"), which Bonds are being
offered and sold pursuant to the Company's Registration Statement on Form S-3,
Registration No. 33-53125 (the "1994 Registration Statement") and the 1998
Registration Statement. The purpose of this Current Report on Form 8-K is: (A)
to file with the Commission pursuant to the provisions of Section 13(a) of the
Securities Exchange Act of 1934, as amended, (i) the form of Calculation Agency
Agreement to be entered into by the Company and Goldman, Sachs & Co. in
connection with the Bonds (the "Calculation Agency Agreement") and (ii) the
Statement of Eligibility of Trustee on Form T-1 of The First National Bank of
Chicago, the trustee under the Indenture dated as of April 1, 1991 between the
Company and The First National Bank of Chicago, as Trustee (the "Statement of
Eligibility"); and (B) to incorporate by reference (i) in the 1998 Registration
Statement, the Underwriting Agreement among the Company, Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated May 18, 1994
pursuant to which the Bonds are to be sold to the underwriters in the Offering
as Exhibit 1 to the 1998 Registration Statement and (ii) in the 1994
Registration Statement and in the 1998 Registration Statement, the Statement of
Eligibility and the Calculation Agency Agreement as Exhibits 10.1 and 25.1,
respectively, to the 1994 Registration Statement and as Exhibits 10.1 and 25,
respectively, to the 1998 Registration Statement.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
1 Underwriting Agreement among the Company, Goldman, Sachs & Co.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated, dated May 18,
1994 (incorporated by reference from Registration Statement on Form S-
3, Registration No. 33-53125).
10.1 Form of Calculation Agency Agreement between Wal-Mart Stores, Inc. and
Goldman, Sachs & Co.
25 Statement of Eligibility of Trustee on Form T-1.
1
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SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: June 3, 1998 WAL-MART STORES, INC.
By: /s/ John B. Menzer
----------------------------------
John B. Menzer,
Executive Vice President and
Chief Financial Officer
2
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INDEX TO EXHIBITS
Exhibit
Number Description
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10.1 Form of Calculation Agency Agreement between Wal-Mart Stores, Inc.
and Goldman, Sachs & Co.
25 Statement of Eligibility of Trustee on Form T-1.
3
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EXHIBIT 10.1
FORM OF
CALCULATION AGENCY AGREEMENT
BETWEEN
WAL-MART STORES, INC.
AND
GOLDMAN, SACHS & CO.
June 8, 1998
Wal-Mart Stores, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell $500,000,000 aggregate principal amount of its
Puttable Reset Securities PURSSM due June 1, 2018 (the "Bonds") in
accordance with the terms of the Indenture, dated as of April 1, 1991, as
amended by the First Supplemental Indenture, dated as of September 9, 1992
(together, the "Indenture"), in each case between the Company and The First
National Bank of Chicago, as trustee (the "Trustee"). Terms used but not
defined herein shall have the meanings assigned to them in the Bonds.
For the purpose of appointing an agent to perform the functions
of Calculation Agent as described in the Bonds, and for other reasons
related thereto, the Company and Goldman, Sachs & Co. hereby agree as
follows (it being understood that the references to Goldman, Sachs & Co. in
subsection 1 through 4 below mean such firm in its capacity as Calculation
Agent, in sections 5 and 6 below mean such firm in its individual capacity
and not as Calculation Agent, and in sections 7 through 12 below mean such
firm in either capacity, as the context may require):
1. Upon the terms and subject to the conditions contained
herein, the Company hereby appoints Goldman, Sachs & Co. as agent (solely
in such capacity, the "Calculation Agent") for the purpose of performing
the functions of Calculation Agent as described in the Bonds.
2. (a) Subject to sections 3 and 4 below, the Calculation Agent
agrees to perform the functions of the Calculation Agent described in the
Bonds. The Calculation Agent shall require each financial institution that
is to act as a Reference Dealer to execute a Reference Dealer agreement
substantially in the form attached hereto as Annex A, with such changes as
Goldman, Sachs & Co., in its individual capacity, reasonably may request
with the approval of the Company.
(b) Upon the request of a registered holder of Bonds, the Trustee
or the Company, the Calculation Agent shall inform such holder, the Trustee
or the Company of the results of any calculation or determination.
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3. The Calculation Agent accepts and agrees to perform its
obligations set forth herein, upon the terms and subject to the conditions
hereof, including the following, to all of which the Company and the
Trustee agree:
(a) The Company promises to reimburse the Calculation Agent for
the reasonable out-of-pocket expenses (including counsel fees and
expenses) incurred by it in connection with the services rendered
hereunder by it as Calculation Agent upon receipt of such invoices as
the Company shall reasonably require. The Company also agrees to
indemnify the Calculation Agent for, and to hold it harmless against,
any and all loss, liability, damage, claims or expense (including the
costs and expenses, including reasonable legal fees and expenses, of
defending against any claim of liability) incurred by the Calculation
Agent that arises out of or in connection with its acting as
Calculation Agent hereunder, except such as may result from the gross
negligence, willful misconduct or bad faith of the Calculation Agent.
The Calculation Agent shall incur no liability to and shall be
indemnified and held harmless by the Company for, or in respect of,
any actions taken, omitted to be taken or suffered to be taken in good
faith by the Calculation Agent in reasonable reliance upon (i) the
written opinion of counsel satisfactory to it or (ii) instructions
from the Trustee or the Company. The Calculation Agent shall not be
liable for any error resulting from the use of or reasonable reliance
on a source of information used in good faith and with due care to
make any determination, calculation or declaration hereunder. In no
event shall the Calculation Agent be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Calculation Agent has been
advised of the likelihood of such loss or damage and regardless of the
form of action. The provisions of this paragraph shall survive the
termination of this Agreement.
(b) In acting under this Agreement and in connection with the
Bonds, the Calculation Agent is acting solely as agent of the Company
and does not assume any obligations to, or relationship of agency or
trust for or with, any of the owners or holders of the Bonds.
(c) Notwithstanding any other provision to the contrary set forth
in this Agreement, the Calculation Agent shall be protected against
and shall incur no liability for or in respect of any action taken or
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omitted to be taken or anything suffered by it in reliance upon the
terms of the Bonds or any notice, direction, certificate, affidavit,
statement or other paper, document or communication reasonably
believed by it to be genuine and to have been approved or signed by
the proper party or parties.
(d) The Calculation Agent shall be obligated to perform such
duties and only such duties as are specifically set forth for the
Calculation Agent herein or in the Bonds, and no implied duties or
obligations shall be read into this Agreement against the Calculation
Agent.
(e) The Calculation Agent may, upon obtaining the prior written
consent of the Company, perform any duties hereunder through agents or
attorneys, and the Calculation Agent shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(f) The Company will not, without first obtaining the prior
written consent of the Calculation Agent, make any change to the terms
of the Bonds if such change would materially and adversely affect the
Calculation Agent's rights, duties and obligations under this
Agreement.
(g) The Calculation Agent shall be protected and shall incur no
liability for or in respect of any action taken or omitted to be taken
in good faith or anything suffered in good faith by it in reliance
upon anything contained in the Bonds, the Indenture, the Prospectus
Supplement dated June 2, 1998 or the Prospectus dated June 2, 1998
relating to the Bonds (together, the "Prospectus") or any information
supplied to the Calculation Agent by the Company pursuant to this
Agreement.
(h) The Calculation Agent, whether acting for itself or in any
other capacity, its partners, officers, directors, employees and
shareholders or any affiliate of the Calculation Agent may become the
owner, holder or pledgee of Bonds (or the owner, holder, pledgee or
obligor with respect to any option, swap or other contract related
thereto) with the same rights as it would have had if it were not
acting hereunder as Calculation Agent and may engage or be interested
in any financial or other transaction with the Company as fully as if
it were not the Calculation Agent.
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(i) The Calculation Agent shall promptly provide to the Trustee a
written report of all determinations and calculations required to be
made by the Calculation Agent pursuant to the terms of this Agreement
and the Bonds. The Trustee may conclusively rely on all of the
information provided to it pursuant to the preceding sentence without
further investigation on its behalf.
Any determination or calculation made by the Calculation Agent in
accordance with the terms of this Agreement and the Bonds shall be final
and binding on the Company, the Trustee and the Holders and owners of the
Bonds, absent manifest error.
4. (a) The Calculation Agent may at any time resign as
Calculation Agent by giving written notice to the Company (with a copy to
the Trustee) of such intention on its part, specifying the date on which
its desired resignation shall become effective; provided, however, that
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such date shall not be earlier than 30 days after the receipt of such
notice by the Company, unless the Company agrees in writing to accept less
notice. The Company may remove the Calculation Agent at any time, but only
for cause, by filing with the Calculation Agent (with a copy to the
Trustee) any instrument in writing signed on behalf of the Company and
specifying such removal, the reasons for such removal and the date when
such removal is intended to become effective. Such resignation or removal
shall take effect upon the date of the appointment by the Company, as
hereinafter provided, of a successor Calculation Agent. If at least 30
days prior to the next succeeding Calculation Date after notice of
resignation or removal has been given, a successor Calculation Agent has
not been appointed, the Calculation Agent may petition a court of competent
jurisdiction to appoint a successor Calculation Agent. A successor
Calculation Agent shall be appointed by the Company by an instrument in
writing signed on behalf of the Company and the successor Calculation
Agent. Upon the appointment of a successor Calculation Agent and
acceptance by it of such appointment, the Calculation Agent so superseded
shall cease to be such Calculation Agent hereunder. Upon its resignation
or removal, the Calculation Agent shall be entitled to the reimbursement of
all reasonable out-of-pocket expenses incurred in connection with the
services rendered hereunder by it as Calculation Agent.
(b) Any successor Calculation Agent appointed hereunder shall
execute and deliver to its predecessor, the Company and the Trustee an
instrument accepting such appointment hereunder and agreeing to perform the
functions of the Calculation Agent under the Bonds and the obligations of
the Calculation Agent under this Agreement and to be
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bound by this Agreement, and thereupon such successor Calculation Agent,
without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations
of such predecessor with like effect as if originally named as such
Calculation Agent hereunder, and such predecessor Calculation Agent, upon
payment of its charges and disbursements then unpaid, shall thereupon
become obliged to transfer and deliver, and such successor Calculation
Agent shall be entitled to receive and the predecessor Calculation Agent
shall provide, copies of any relevant records maintained by such
predecessor Calculation Agent.
(c) Any corporation, partnership, limited liability company or
other entity into which the Calculation Agent may be merged or converted or
with which the Calculation Agent may be consolidated, or any corporation,
partnership, limited liability company or other entity resulting from any
merger, conversion or consolidation to which the Calculation Agent shall be
a party, shall, to the extent permitted by applicable law, be the successor
Calculation Agent under this Agreement without the execution or filing of
any paper or any further act on the part of any of the parties hereto
provided that such successor Calculation Agent shall assume, or be deemed
--------
to have assumed, all of the obligations and liabilities of its predecessor
under this Agreement. Notice of any such merger, conversion, consolidation
or sale shall forthwith be given to the Company and the Trustee.
(d) The foregoing indemnity, reimbursement and other provisions
of this Agreement will survive any resignation or removal of the
Calculation Agent. The agreements of the parties set forth above will be
binding upon and inure to the benefit of their respective successors.
5. For good and valuable consideration, the sufficiency of which
is hereby acknowledged, the Company hereby agrees with Goldman, Sachs &
Co., in its individual capacity and not as Calculation Agent, as follows:
(a) If at any time Goldman, Sachs & Co., with the advice of its
counsel and after consultation with the Company and its counsel, determines
that registration of the Bonds under the Securities Act of 1933 (or any
successor law), as it may be amended from time to time, is required in
order for Goldman, Sachs & Co. to resell the Bonds on any Reset Date as
contemplated in the Prospectus, the Company will, at its own expense, cause
the Bonds to be so registered in time to permit such resale of the Bonds on
the relevant Reset Date; provided, however, that Goldman, Sachs
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& Co. shall give the Company at least 30 days' notice prior to such Reset
Date.
(b) Notwithstanding any provision to the contrary set forth in
the Indenture, the Company will not purchase any Bonds in the open market,
by tender offer, in a private transaction or otherwise, except pursuant to
any purchase obligation it may have under the Bonds or with the prior
written consent of Goldman, Sachs & Co., as holder of the Call Option;
provided, however, that with respect to any Reset Date, if Goldman, Sachs &
-------- -------
Co. does not exercise the Call Option and effective Hold Notices (as
defined in the Prospectus) are given by the holders of the Bonds, this
provision shall not restrict the ability of the Company to purchase Bonds
for 90 days following such Reset Date.
(c) Notwithstanding any provision to the contrary set forth in
the Indenture, the Company will not cause or permit the provisions of any
Bond (or the Indenture, as it relates to any Bond) to be modified in any
way without the prior written consent of Goldman, Sachs & Co. (including
with respect to the payment and settlement provisions of paragraph 5 of the
Bonds).
(d) The Bonds and the Indenture, insofar as they relate to the
Call Option or may affect the interests of Goldman, Sachs & Co. as holder
of such option (including the provisions relating to the interest rate
reset and resale to a Final Dealer, but excluding the provisions referred
to in the next sentence), constitute obligations of the Company that are
made for the benefit of, and are enforceable by, Goldman, Sachs & Co., in
its individual capacity and not as Calculation Agent. In addition, insofar
as the provisions of any Bond purport to provide rights to Goldman, Sachs &
Co. against any holder of such Bond (including the right to purchase such
Bond from any holder on any Reset Date pursuant to the Call Option), the
Company shall take all action necessary or desirable to enforce such rights
in its own name, but for the benefit of Goldman, Sachs & Co. so as to
ensure that Goldman, Sachs & Co. receives the full benefit of such rights
as if they were enforceable directly by Goldman, Sachs & Co., in each case
if, to the extent and in the manner, but only if, to the extent and in the
manner, requested by Goldman, Sachs & Co. Among other things, if requested
by Goldman, Sachs & Co., such action by the Company shall include effecting
transfers of Bonds or beneficial interests therein as contemplated in
paragraph 5 of the reverse of the Bonds, exchanging Bonds in book-entry
form for Bonds that are not in such form and vice-versa as contemplated in
paragraph 8(c) of the reverse of the Bonds and instituting suit to enforce
specific performance of such rights or to obtain money damages or other
relief in respect
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of such rights, whether against the holders or their respective successors,
assigns, estates, heirs or representatives. Without limiting the foregoing,
Goldman, Sachs & Co. may take any action under the Bonds (including giving
any notice, making any determination and effecting any settlement pursuant
to paragraphs 2, 4 and 5 thereof) that the provisions of the Bonds
contemplate may be taken by Goldman, Sachs & Co., and the Company will not
take any action unless Goldman, Sachs & Co. requests it to do so. Goldman,
Sachs & Co. shall reimburse the Company for any reasonable, out-of-pocket
expenses the Company incurs, including reasonable counsel fees and
expenses, in connection with any action it may take in this regard at the
request of Goldman, Sachs & Co. The Company's agreements set forth in this
paragraph shall not be invalid or unenforceable by reason of any provision
of the Bonds not being unenforceable by Goldman, Sachs & Co. This paragraph
is not intended to limit any rights that Goldman, Sachs & Co. may have
under the Indenture or the Bonds as a holder or owner of Securities from
time to time.
(e) Notwithstanding any provision to the contrary set forth in
the Bonds or the Indenture (but subject to section 5(d) above), the Company
(i) will use its best efforts to maintain the Bonds in book-entry form with
The Depository Trust Company ("DTC") or any successor thereto and to
appoint a successor depository to the extent necessary to maintain the
Bonds in book-entry form and (ii) will waive any discretionary right it
otherwise has under the Indenture to cause the Bonds to be issued in
certificated form. The Company will perform its obligations, and pursue
its rights against DTC, under the DTC Letter of Representations dated June
8, 1998 among the Company, the Trustee and DTC.
(f) If Goldman, Sachs & Co. resigns or is removed as Calculation
Agent, the Company will take such steps as are necessary to ensure that
there is at all times thereafter a qualified financial institution
appointed and serving as Calculation Agent pursuant to an agreement with
the Company that is substantially similar to this Agreement (excluding this
section 5) or that is not materially adverse to the interests of Goldman,
Sachs & Co. as holder of the Call Option. The Company will promptly
provide Goldman, Sachs & Co. with a copy of each such agreement.
The agreements made in this section 5 will remain in effect
regardless of whether or not Goldman, Sachs & Co. ceases to act as
Calculation Agent or to perform its duties as Calculation Agent hereunder,
and regardless of any change in the Trustee. The agreements of the Company
in this section 5 are not contingent in any way upon the agreements of the
parties set forth in the other sections of this
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Agreement, will be binding upon the Company and its successors and will
inure to the benefit of Goldman, Sachs & Co. and its successors.
6. (a) Goldman, Sachs & Co., in its individual capacity and not
as Calculation Agent, hereby agrees with the Company and the Trustee, for
the benefit of the Company and the applicable holders of the Bonds from
time to time, that, if Goldman, Sachs & Co. exercises the Call Option with
respect to any Reset Date when the Bonds are outstanding, it will purchase
the outstanding Bonds from the registered holders thereof on such Reset
Date upon the terms and subject to the conditions (including the absence of
a Market Disruption Event or Failed Remarketing) set forth in such Bonds,
all as provided in such Bonds. If Goldman, Sachs & Co. exercises the Call
Option and becomes obligated under this Agreement to purchase outstanding
Bonds on any Reset Date but fails to do so, and the Company becomes
obligated to purchase such Bonds on the Reset Date as provided in the
Bonds, such purchase by the Company will not relieve Goldman, Sachs & Co.
from any liability it may have on its obligation under this Agreement to
purchase such Bonds. The holders of the Bonds shall have no right, claim
or remedy under this Agreement except as provided in this section 6.
(b) If any of the following events (each a "Call Option
Termination Event") shall occur on or prior to the Reset Date, then (i) the
Company shall notify Goldman, Sachs & Co. promptly of the occurrence of
such event (including, in the case of clause (B) below, any modification of
any kind to the Indenture or the Bonds) and (ii) Goldman, Sachs & Co., as
holder of the Call Option, shall upon the occurrence of such event be
entitled to demand that the Company pay them the Call Option Termination
Amount (as defined below), and the Company shall pay such amount to
Goldman, Sachs & Co. within three Business Days (as defined in the
Indenture) of the date of such demand: (A) an Event of Default (as defined
in the Indenture) with respect to the Bonds shall have occurred and be
continuing, or any event which, with the giving of notice or passage of
time or both, would constitute such an Event of Default, shall have
occurred and continued for the shorter of (a) three Business Days or (b)
the number of days between such occurrence and the Reset Date (exclusive),
and be continuing, or (B) the Indenture or the Bonds shall have been
amended in any manner, or otherwise contain any provision not contained
therein as of the date hereof, that in the judgment of Goldman, Sachs & Co.
materially adversely changes the nature of the Bonds or the coupon reset
procedures, unless consented to in writing by Goldman, Sachs & Co. The Call
Option shall terminate upon payment of the Call Option Termination Amount.
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(c) The "Call Option Termination Amount" shall mean, on any date,
the amount determined by Goldman, Sachs & Co. equal to the "Fair Market
Value" of the embedded interest rate option implicit in the option to
purchase the Bonds on the Reset Date at 100% of the aggregate principal
amount thereof. "Fair Market Value" shall be determined by Goldman, Sachs
& Co., as follows: Goldman, Sachs & Co. shall request five primary U.S.
Government securities dealers (each a "Reference Treasury Dealer") in the
City of New York to provide its quotation of the amount required to enter
into an agreement with Goldman, Sachs & Co. that would have the effect of
preserving for Goldman, Sachs & Co. the economic equivalent of the Call
Option, assuming the Call Option Termination Event had not occurred.
Goldman, Sachs & Co. shall request each Reference Treasury Dealer to
provide its quotation to the extent reasonably practicable as of the same
day and time (without regard to different time zones) on or as soon as
reasonably practicable after the notice provided for in paragraph (b)
above. The day and time as of which these quotations are to be obtained
will be selected in good faith by Goldman, Sachs & Co. If more than three
quotations are provided, the Fair Market Value shall be the arithmetic mean
of the quotations, without regard to the quotations having the highest and
lowest values. (For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded.) If three or fewer such quotations are provided, the Fair
Market Value shall be the arithmetic mean of the quotations. The
determination of the Call Option Termination Amount by Goldman, Sachs & Co.
shall, absent manifest error, be binding on the Company.
7. Any notice required to be given hereunder shall be delivered
in person, sent by overnight courier, registered mail, return receipt
requested, or facsimile or communicated by telephone (subject, in the case
of communication by telephone, to confirmation dispatched within twenty-
four hours by letter or by facsimile),
in the case of the Company, to:
Wal-Mart Stores, Inc.
702 S.W. Eighth Street
Bentonville, Arkansas, 72716
Attention: Treasurer
Facsimile: 501-273-1969;
in the case of the Calculation Agent, to:
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
Attention: Registration Department
Facsimile: (212) 902-3000;
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in the case of Goldman, Sachs & Co. (in its individual capacity, and
not as Calculation Agent), to:
Goldman, Sachs & Co.
85 Broad Street
New York, N.Y. 10004
Attention: Registration Department
Facsimile: (212) 902-3000;
and in the case of the Trustee, to:
The First National Bank of Chicago,
One North State Street, 9th Floor
Chicago, Illinois 60602
Attention: Corporate Trust Administration
Facsimile: (312) 407-1708;
or to any other address of which any party shall have notified the others
in writing as herein provided. Any notice hereunder given by facsimile or
letter, first class mail, shall be deemed to be received upon actual
receipt thereof.
8. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. The rights and obligations of the Company hereunder may not
be assigned or delegated to any other person without the prior written
consent of Goldman, Sachs & Co. The rights and obligations of Goldman,
Sachs & Co. hereunder may not be assigned or delegated to any other person
without the prior written consent of the Company. This Agreement shall
inure to the benefit of and be binding upon the Company and Goldman, Sachs
& Co. and their respective successors and assigns, and will not confer any
benefit upon any other person (other than as provided in section 6 above).
The terms "successors" and "assigns" shall not include any purchaser of
Bonds merely because of such purchase.
10. If any provision of this Agreement shall be held invalid or
unenforceable as applied in any particular case in any or all
jurisdictions, such circumstances shall not have the effect of rendering
the provision invalid or unenforceable in any other case or jurisdiction,
or of rendering any other provision of this Agreement invalid or
unenforceable.
11. This Agreement may be amended by any instrument in writing
signed by each of the parties hereto.
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12. This Agreement may be executed by each of the parties hereto
in any number of counterparts, each of which counterparts, when so executed
and delivered, shall be deemed to be an original and all such counterparts
shall together constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the date first above written.
WAL-MART STORES, INC.
By: ______________________________
Name:
Title:
__________________________________
(Goldman, Sachs & Co.)
in its individual capacity and as Calculation
Agent
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ANNEX A
FORM OF
REFERENCE DEALER AGREEMENT
__________, 200_
_____________________
_____________________
_____________________
_____________________
Dear Sirs:
Wal-Mart Stores, Inc., a Delaware corporation (the "Company"),
has issued $500,000,000 in outstanding principal amount of its Puttable
Reset Securities PURSSM due June 1, 2018 (the "Bonds") pursuant to an
Indenture, dated as of April 1, 1991, as amended by a First Supplemental
Indenture, dated as of September 9, 1992 (together, the "Indenture"), in
each case between the Company and The First National Bank of Chicago, as
trustee (the "Trustee"). The Bonds provide for the periodic reset of the
rate at which interest will accrue thereon and for their periodic resale.
Pursuant to a Calculation Agency Agreement, dated June 8, 1998, between the
Company and Goldman, Sachs & Co. (the "Calculation Agency Agreement"), we
have been appointed as the calculation agent (the "Calculation Agent") for
purposes of determining the new interest rate for the Bonds on each Reset
Date. As Calculation Agent, we would like to extend to you an invitation
to participate in the interest reset and resale process as a Reference
Dealer, as described more fully in the Bonds.
Capitalized terms used in this Agreement and not defined herein
will have the meanings ascribed to them in the Bonds.
The Calculation Date to which this agreement relates is
_______________, and the Reset Date is _______________.
Please note that by executing this agreement, you agree that, if
you are selected as the Final Dealer, you will purchase from Goldman, Sachs
& Co. on the Calculation Date for settlement on the Reset Date and at the
Final Offer Price all the Bonds that Goldman, Sachs & Co. may purchase
pursuant to the Call Option and tender for sale to you on
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the Reset Date. We will inform you whether you have been selected as the
Final Dealer on or shortly after the Calculation Date. If you are selected
as the Final Dealer, (i) the aggregate principal amount of Bonds which you
may be required to purchase will not exceed $_______________ (we will
inform you of the actual amount on the Reset Date), (ii) the price for such
Bonds will be the Final Offer Price, which we will provide to you when
requesting your bid on the Calculation Date, and (iii) the Adjusted Rate
for the Bonds for the Reset Period beginning on such Reset Date will be
calculated by us based on the bid submitted (and confirmed in writing) by
you on the Calculation Date.
Notwithstanding anything to the contrary set forth in this
Agreement, you will have no obligation or right to purchase any Bonds on
any Reset Date if you are not selected as the Final Dealer or if Goldman,
Sachs & Co. does not purchase such Bonds on the Reset Date. Neither the
Calculation Agent nor the Company has any obligation hereunder to sell any
Bonds to you.
If you are willing to participate as a Reference Dealer under the
terms described above, please fill in the information requested below and
have an appropriate person sign and return this agreement to us by
____________________. Upon acceptance hereof by you, this letter shall
constitute a binding agreement between you and us, and for the benefit of
the Company and Goldman, Sachs & Co. (in its individual capacity and not as
Calculation Agent).
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
_____________________________,
as Calculation Agent
By: __________________________
Name:
Title:
Accepted as of the date hereof:
_______________________________
By: ___________________________
Name:
Title:
-13-
<PAGE>
Contact: ______________________
Phone No.: ____________________
Facsimile No.: ________________
-14-
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) _____
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
WAL-MART STORES, INC.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF 71-0415188
INCORPORATION OR ORGANIZATION (I.R.S. EMPLOYER IDENTIFICATION
NUMBER)
702 S.W. EIGHTH STREET
BENTONVILLE, ARKANSAS 72716
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; and The Board of Governors of
the Federal Reserve System, Washington D.C..
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 3rd day of June, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ JOHN R. PRENDIVILLE
-----------------------
JOHN R. PRENDIVILLE
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2,
1996 (REGISTRATION NO. 333-14201).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
June 3, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the indenture between Wal-Mart Stores,
Inc. and The First National Bank of Chicago, as Trustee, the undersigned, in
accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended,
hereby consents that the reports of examinations of the undersigned, made by
Federal or State authorities authorized to make such examinations, may be
furnished by such authorities to the Securities and Exchange Commission upon its
request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ JOHN R. PRENDIVILLE
-----------------------
JOHN R. PRENDIVILLE
VICE PRESIDENT
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C>
LEGAL TITLE OF BANK: THE FIRST NATIONAL BANK OF CHICAGO CALL DATE: 12/31/97 ST-BK: 17-1630 FFIEC 031
ADDRESS: ONE FIRST NATIONAL PLAZA, STE 0303 PAGE RC-1
CITY, STATE ZIP: CHICAGO, IL 60670
FDIC CERTIFICATE NO.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31,1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN C400
------------
THOUSANDS RCFD BIL MIL THOU
----------------- ---- ------------
<S> <C> <C> <C> <C> <C> <C>
ASSETS
1. CASH AND BALANCES DUE FROM DEPOSITORY INSTITUTIONS
(FROM SCHEDULE RC-A):
A. NONINTEREST-BEARING BALANCES AND CURRENCY AND
COIN(1)........................................... 0081 4,267,336 1.A.
B. INTEREST-BEARING BALANCES(2)...................... 0071 6,893,837 1.B.
2. SECURITIES
A. HELD-TO-MATURITY SECURITIES(FROM SCHEDULE
RC-B, COLUMN A)................................... 1754 0 2.A.
B. AVAILABLE-FOR-SALE SECURITIES (FROM SCHEDULE
RC-B, COLUMN D)................................... 1773 5,691,722 2.B.
3. FEDERAL FUNDS SOLD AND SECURITIES PURCHASED UNDER
AGREEMENTS TO RESELL.............................. 1350 6,339,940 3.
4. LOANS AND LEASE FINANCING RECEIVABLES:
A. LOANS AND LEASES, NET OF UNEARNED INCOME (FROM
SCHEDULE RC-C).................................... RCFD 2122 25,202,984 4.A.
B. LESS: ALLOWANCE FOR LOAN AND LEASE LOSSES......... RCFD 3123 419,121 4.B.
C. LESS: ALLOCATED TRANSFER RISK RESERVE............. RCFD 3128 0 4.C.
D. LOANS AND LEASES, NET OF UNEARNED INCOME,
ALLOWANCE, AND RESERVE (ITEM 4.A MINUS 4.B
AND 4.C).......................................... 2125 24,783,863 4.D.
5. TRADING ASSETS (FROM SCHEDULE RD-D) 3545 6,703,332 5.
6. PREMISES AND FIXED ASSETS (INCLUDING CAPITALIZED
LEASES)........................................... 2145 743,426 6.
7. OTHER REAL ESTATE OWNED (FROM SCHEDULE RC-M)...... 2150 7,727 7.
8. INVESTMENTS IN UNCONSOLIDATED SUBSIDIARIES AND
ASSOCIATED COMPANIES (FROM SCHEDULE RC-M)......... 2130 134,959 8.
9. CUSTOMERS' LIABILITY TO THIS BANK ON ACCEPTANCES
OUTSTANDING....................................... 2155 644,340 9.
10. INTANGIBLE ASSETS (FROM SCHEDULE RC-M)........... 2143 268,501 10.
11. OTHER ASSETS (FROM SCHEDULE RC-F)................ 2160 2,004,432 11.
12. TOTAL ASSETS (SUM OF ITEMS 1 THROUGH 11)......... 2170 58,483,415 12.
</TABLE>
- ------------------
(1) INCLUDES CASH ITEMS IN PROCESS OF COLLECTION AND UNPOSTED DEBITS.
(2) INCLUDES TIME CERTIFICATES OF DEPOSIT NOT HELD FOR TRADING.
<PAGE>
<TABLE>
<S> <C> <C>
LEGAL TITLE OF BANK: THE FIRST NATIONAL BANK OF CHICAGO CALL DATE: 09/30/97 ST-BK: 17-1630 FFIEC 031
ADDRESS: ONE FIRST NATIONAL PLAZA, STE 0303 PAGE RC-2
CITY, STATE ZIP: CHICAGO, IL 60670
FDIC CERTIFICATE NO.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS BIL MIL THOU
------------------ ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. DEPOSITS:
A. IN DOMESTIC OFFICES (SUM OF TOTALS OF COLUMNS
A AND C FROM SCHEDULE RC-E, PART 1).................. RCON 2200 21,756,846 13.A
(1) NONINTEREST-BEARING(1)............................ RCON 6631 9,197,227 13.A.1
(2) INTEREST-BEARING.................................. RCON 6636 559,619 13.A.2
B. IN FOREIGN OFFICES, EDGE AND AGREEMENT SUBSIDIARIES,
AND IBFS (FROM SCHEDULE RC-E, PART II)................ RCFN 2200 14,811,410 13.B.
(1) NONINTEREST BEARING............................... RCFN 6631 332,801 13.B.1
(2) INTEREST-BEARING.................................. RCFN 6636 14,478,609 13.B.2
14. FEDERAL FUNDS PURCHASED AND SECURITIES SOLD UNDER
AGREEMENTS TO REPURCHASE:................................ RCFD 2800 4,535,422 14
15. A. DEMAND NOTES ISSUED TO THE U.S. TREASURY.............. RCON 2840 43,763 15.A
B. TRADING LIABILITIES(FROM SCHEDULE RC-D)............... RCFD 3548 6,523,239 15.B
16. OTHER BORROWED MONEY:
A. WITH A REMAINING MATURITY OF ONE YEAR OR LESS........ RCFD 2332 1,360,165 16.A
B. WITH A REMAINING MATURITY OF MORE THAN ONE YEAR
THROUGH THREE YEARS................................... A547 576,492 16.B
. C. WITH A REMAINING MATURITY OF MORE THAN THREE YEARS... A548 703,981 16.C
17. NOT APPLICABLE
18. BANK'S LIABILITY ON ACCEPTANCE EXECUTED AND OUTSTANDING.. RCFD 2920 644,341 18
19. SUBORDINATED NOTES AND DEBENTURES (2).................... RCFD 3200 1,700,000 19
20. OTHER LIABILITIES (FROM SCHEDULE RC-G)................... RCFD 2930 1,322,077 20
21. TOTAL LIABILITIES (SUM OF ITEMS 13 THROUGH 20)........... RCFD 2948 53,987,736 21
22. NOT APPLICABLE
EQUITY CAPITAL
23. PERPETUAL PREFERRED STOCK AND RELATED SURPLUS............ RCFD 3838 0 23
24. COMMON STOCK............................................. RCFD 3230 200,858 24
25. SURPLUS (EXCLUDE ALL SURPLUS RELATED TO PREFERRED STOCK). RCFD 3839 2,999,001 25
26. A. UNDIVIDED PROFITS AND CAPITAL RESERVES................ RCFD 3632 1,273,239 26.A.
B. NET UNREALIZED HOLDING GAINS (LOSSES) ON AVAILABLE-
FOR-SALE SECURITIES................................... RCFD 8434 24,096 26.B.
27. CUMULATIVE FOREIGN CURRENCY TRANSLATION ADJUSTMENTS...... RCFD 3284 (1,515) 27
28. TOTAL EQUITY CAPITAL (SUM OF ITEMS 23 THROUGH 27)........ RCFD 3210 4,495,679 28
29. TOTAL LIABILITIES AND EQUITY CAPITAL (SUM OF ITEMS 21
AND 28)................................................. RCFD 3300 58,483,415 29
</TABLE>
MEMORANDUM
TO BE REPORTED ONLY WITH THE MARCH REPORT OF CONDITION.
1. INDICATE IN THE BOX AT THE RIGHT THE NUMBER OF THE STATEMENT BELOW THAT BEST
DESCRIBES THE MOST COMPREHENSIVE LEVEL OF AUDITING WORK PERFORMED FOR THE
BANK BY INDEPENDENT EXTERNAL NUMBER
AUDITORS AS OF ANY DATE DURING 1996........ RCFD 6724 M.1
------
NA
------
<TABLE>
<S> <C> <C>
1 = INDEPENDENT AUDIT OF THE BANK CONDUCTED IN ACCORDANCE 4. = DIRECTORS' EXAMINATION OF THE BANK PERFORMED BY OTHER
WITH GENERALLY ACCEPTED AUDITING STANDARDS BY A CERTIFIED EXTERNAL AUDITORS (MAY BE REQUIRED BY STATE CHARTERING
PUBLIC ACCOUNTING FIRM WHICH SUBMITS A REPORT ON THE BANK AUTHORITY)
2 = INDEPENDENT AUDIT OF THE BANK'S PARENT HOLDING COMPANY 5 = REVIEW OF THE BANK'S FINANCIAL STATEMENTS BY EXTERNAL
CONDUCTED IN ACCORDANCE WITH GENERALLY ACCEPTED AUDITING AUDITORS
STANDARDS BY A CERTIFIED PUBLIC ACCOUNTING FIRM WHICH 6 = COMPILATION OF THE BANK'S FINANCIAL STATEMENTS BY EXTERNAL
SUBMITS A REPORT ON THE CONSOLIDATED HOLDING COMPANY AUDITORS
(BUT NOT ON THE BANK SEPARATELY) 7 = OTHER AUDIT PROCEDURES (EXCLUDING TAX PREPARATION WORK)
3 = DIRECTORS' EXAMINATION OF THE BANK CONDUCTED IN 8 = NO EXTERNAL AUDIT WORK
ACCORDANCE WITH GENERALLY ACCEPTED AUDITING STANDARDS
BY A CERTIFIED PUBLIC ACCOUNTING FIRM (MAY BE REQUIRED BY
STATE CHARTERING AUTHORITY)
</TABLE>
(1) INCLUDES TOTAL DEMAND DEPOSITS AND NONINTEREST-BEARING TIME AND SAVINGS
DEPOSITS.
(2) INCLUDES LIMITED-LIFE PREFERRED STOCK AND RELATED SURPLUS.
