Exhibit II.4.
Form of Exchange Agency Agreement
--------------------------------------------------------------------------------
EXCHANGE AGENCY AGREEMENT
--------------------------------------------------------------------------------
by and among
WAL-MART STORES, INC.
as Issuer
and
BANK ONE, NA
as Exchange Agent
7 JANUARY, 2003
TABLE OF CONTENTS
Page
1. Appointment and Acceptance ............................................ 1
2. Standard of Care ...................................................... 1
3. Term of Agreement ..................................................... 3
4. Representations and Warranties ........................................ 4
5. Indemnification ....................................................... 4
6. Fees .................................................................. 5
7. Amendment and Assignments ............................................. 5
8. Partial Invalidity .................................................... 6
9. Benefits .............................................................. 6
10. Force Majeure ......................................................... 6
11. Entire Agreement ...................................................... 6
12. Counterparts .......................................................... 7
13. Titles ................................................................ 7
14. Notices ............................................................... 7
15. Governing Law and Jurisdiction ........................................ 8
SCHEDULE I
SERVICES SCHEDULE ........................................................... 10
SCHEDULE II
FEE SCHEDULE ................................................................ 15
i
EXCHANGE AGENCY AGREEMENT
This Exchange Agency Agreement (together with the Schedules hereto this
"Agreement") is made as of 7 January, 2003 by and between WAL-MART STORES, INC.,
as issuer (the "Issuer" or "Wal-Mart"), a corporation domiciled in the State of
Delaware, United States of America, and BANK ONE, NA, operating in the UK under
branch registration no. BR000915 acting through its London branch at 00
Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX, as exchange agent (the "Exchange Agent").
Terms used but not otherwise defined herein shall have the meanings assigned to
such terms in the Offering Memorandum (as defined below).
W I T N E S S E T H T H A T:
WHEREAS, Wal-Mart desires to solicit tenders of Asda Debt Securities in
exchange for Wal-Mart Notes in an Exchange Offer upon the terms, and subject to
the conditions, set forth in an Offering Memorandum dated 7 January, 2003 as the
same may be amended or supplemented from time to time (the "Offering
Memorandum"), a copy of which has been supplied to the Exchange Agent; and
WHEREAS, Wal-Mart has appointed the Exchange Agent to facilitate the
Exchange Offer; and
WHEREAS, the Exchange Agent is willing to act as Exchange Agent, upon the
terms, and subject to the conditions, set forth herein;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Appointment and Acceptance
a. The Issuer hereby appoints the Exchange Agent to act as exchange agent
in connection with the Exchange Offer and as such to perform, or cause
to be performed, the services identified to be performed in Schedule I
attached hereto (the "Services Schedule").
b. The Exchange Agent accepts the appointment by the Issuer to act as
exchange agent solely upon the terms and conditions of this Agreement
and agrees to perform, or cause to be performed, the services
identified in the Services Schedule.
2. Standard of Care
a. The Exchange Agent shall have no responsibilities, duties or
obligations hereunder except as specifically set forth in this
Agreement (including the Schedules hereto) or as may be agreed to in
writing by the Exchange Agent and the Issuer. The Exchange Agent
agrees to perform the services described in the Services Schedule
without negligence or bad faith.
1
b. The Exchange Agent shall not be deemed to make any representations,
and shall have no responsibilities, as to the validity, sufficiency,
value or genuineness of any Asda Debt Securities tendered as part of
the Exchange Offer and will not be required to make any, and will make
no representations as to, or be responsible for, the validity,
sufficiency, legality, value or genuineness of the Wal-Mart Notes to
be issued in connection with the Exchange Offer.
c. The Exchange Agent shall have no obligation to, and shall not, deliver
any Wal-Mart Notes under the terms of the Exchange Offer unless it
shall have received (i) confirmation in writing from the Issuer that
all of the conditions precedent to the Exchange Offer as set forth in
the Offering Memorandum have been satisfied, (ii) confirmation from
the Issuer of the aggregate principal amount of Wal-Mart Notes to be
issued under the Exchange Offer and the issuance of such principal
amount of Wal-Mart Notes and (iii) confirmation from the Issuer of the
aggregate amount of cash to be delivered to the Exchange Agent for the
payment of any Cash Rounding Amount (as defined below) and that such
cash will be delivered to the Exchange Agent on the Settlement Date.
d. The Exchange Agent shall not be obligated to initiate or participate
in any legal action, suit or proceeding in connection with the
Exchange Offer or its duties hereunder, or take any action which might
in the Exchange Agent's judgment involve, or result in, expense or
liability to the Exchange Agent, unless, in each case, it shall have
been furnished with an indemnity satisfactory to it.
e. The Exchange Agent may rely on, and shall be fully authorised and
protected in acting or not acting in good faith with respect to any
matter relating to its actions covered by this Agreement in reliance
upon, any certificate, instrument, instruction, notice, letter,
telegram, telex, facsimile transmission, electronic message
(including, without limitation, a message received through a Clearing
System or a Form of Tender) or other document or instrument delivered
to it that it reasonably believes to be genuine and to have been
signed by the proper party or parties.
f. The Exchange Agent shall not be called upon at any time to, and shall
not, advise any person acting under the Exchange Offer as to the
wisdom of acting thereunder or as to the market value of the Wal-Mart
Notes or the Asda Debt Securities. The Exchange Agent shall not be
liable or responsible for any recital or statement contained in the
Offering Memorandum or any other documents relating thereto, except
for the recitals or statements, if any, provided by the Exchange Agent
for inclusion therein.
g. The Exchange Agent shall not be liable or responsible for any delay,
failure, malfunction, interruption or error in the transmission or
receipt of communications or messages through electronic means
(including, without limitation, the message systems of the Clearing
Systems), or further actions of any other person in connection with
such messages or communications.
2
h. The Exchange Agent shall not be liable or responsible for any failure
by any other party to comply with any of its obligations relating to
the Exchange Offer, including, without limitation, obligations under
applicable securities laws.
i. The Exchange Agent shall not, nor have any obligation to, pay any
commissions or soliciting fees to any person, or reimburse any
brokers, dealers or custodian banks in connection with the Exchange
Offer.
j. In acting hereunder and in connection with the Exchange Offer, the
Exchange Agent shall act solely as agent of the Issuer and will not
thereby assume any obligations towards or relationship of agency or
trust for or with any of the owners or holders of the Wal-Mart Notes
or the Asda Debt Securities.
k. The Exchange Agent shall be entitled to deal with any moneys paid to
it by the Issuer under the terms of this Agreement and the Exchange
Offer in the same manner as other amounts paid to it as a banker by
its customers provided that: (i) it shall not exercise any right of
set-off or lien against the Issuer or any Holders of Asda Debt
Securities in respect thereof, (ii) it shall not be liable to any
person for interest thereon and (iii) such moneys need not be
segregated except as required by law.
l. The Exchange Agent may consult with legal and other professional
advisors and the opinion of such advisors shall be full and complete
protection in respect of any action taken, omitted or suffered
hereunder in good faith and in accordance with the opinion of such
advisors.
m. Except as provided herein, any of the Exchange Agent or its officers,
directors or employees, may become the owner of, or acquire any
interest in, any Wal-Mart Notes or Asda Debt Securities with the same
rights that it would have if the Exchange Agent concerned were not
appointed hereunder, and may engage or be interested in any financial
or other transaction with the Issuer, and may act on, or as
depositary, trustee or agent for any body of holders of Wal-Mart Notes
or Asda Debt Securities or other obligations of the Issuer, as freely
as if such Exchange Agent were not appointed hereunder.
3. Term of Agreement
a. This Agreement shall terminate upon the earliest to occur of (i)
termination of the Agreement by mutual agreement of the Exchange Agent
and the Issuer, (ii) termination by the Issuer of the Exchange Offer,
(iii) the completion of the Exchange Offer, or (iv) by either party
upon a breach by the other party of any of its representations and
warranties in Clause 4. Upon termination of this Agreement, the
Exchange Agent and the Issuer shall have no further duties hereunder
except as otherwise set forth in the following provisions of this
Clause 3.
b. Upon termination of this Agreement, the Exchange Agent shall promptly
deliver to or to the order of the Issuer any securities, certificates,
funds and other property
3
held under the terms hereof. Upon termination of this Agreement and
payment to the Exchange Agent of all amounts payable to it under the
terms hereof, copies of all information maintained by the Exchange
Agent for the Issuer under this Agreement shall be delivered to the
Issuer upon request.
c. Notwithstanding anything else contained in this Agreement, the terms
of Clause 5 shall survive termination of this Agreement.
4. Representations and Warranties
a. The Issuer represents and warrants that: (i) the consummation of the
Exchange Offer and the performance of all transactions contemplated
thereby will, on or before the date the Exchange Offer is announced,
be duly authorised by all necessary action by the Issuer, (ii) this
Agreement has been duly executed and delivered on its behalf and
constitutes a legal, valid, binding and enforceable obligation of the
Issuer, subject to all applicable laws affecting the rights of
creditors, and (iii) the Exchange Offer does, and will continue to,
comply in all material respects with all applicable requirements of
law (including, without limitation, United States and English
securities laws).
b. The Exchange Agent represents and warrants that: (i) this Agreement
has been duly executed and delivered on its behalf by an officer
thereunto duly authorised and constitutes its legal, valid, binding
and enforceable obligation, (ii) it has only communicated or caused to
be communicated, and it will only communicate or cause to be
communicated, any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services
and Markets Act 2000 ("FSMA")) received by it in connection with the
issue or sale of any Wal-Mart Notes in circumstances in which section
21(1) of the FSMA does not apply to the Issuer and (iii) it has
complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Wal-Mart Notes
in, from or otherwise involving the United Kingdom.
5. Indemnification
a. The Issuer shall indemnify the Exchange Agent (together with the
Exchange Agent's directors, officers and employees) against any
losses, liabilities, costs, expenses, claims, actions or demands which
such Exchange Agent may incur or which may be made against such
Exchange Agent as a result of or in connection with the appointment or
the exercise of or performance of the powers, authorities and duties
of such Exchange Agent, as the case may be, under this Agreement
relating to the Wal-Mart Notes except such as may result from the
Exchange Agent's own willful default, fraud, negligence, bad faith or
material failure to comply with its obligations hereunder or that of
its officers, employees or agents.
b. The Exchange Agent shall indemnify the Issuer against any loss,
liability, cost, expense, claim, action or demand which the Issuer may
incur or which may be made against the Issuer, as a result of such
Exchange Agent's own willful default,
4
fraud, negligence, bad faith or material failure to comply with its
obligations under this Agreement or that of its officers, employees or
agents.
c. In relation to Clause 5.a. and Clause 5.b. above, the Issuer or the
Exchange Agent, as applicable, shall indemnify the Exchange Agent or
the Issuer, as applicable, promptly upon receipt by the Issuer or the
Exchange Agent of a demand therefor supported by evidence that is
satisfactory to the party receiving such evidence, in such party's
reasonable discretion, of such loss, liability, cost, expense, claim,
action or demand.
d. The Exchange Agent shall not be liable for any loss caused by events
beyond its reasonable control including any malfunction, interruption
or error in the transmission of information caused by any machine or
systems or interception of communication facilities, abnormal
operating conditions or acts of God. The Exchange Agent shall have no
liability whatsoever for any consequential, special, indirect or
speculative loss or damages (including, but not limited to, loss of
profits, whether or not foreseeable) suffered by the Issuer in
connection with the transactions contemplated by and the relationship
established by this Agreement even if the Exchange Agent has been
advised as to the possibility of the same. These provisions will
override all other provisions of this Agreement. However, this Clause
5.d. shall not apply in the event of a determination of fraud on the
part of the Exchange Agent in a non-appealable judgment of a court
having jurisdiction.
e. The indemnities set out in this Clause 5 shall continue in full force
and effect notwithstanding any termination or expiration of this
Agreement.
6. Fees
For the services provided hereunder the Issuer agrees to pay to the
Exchange Agent the fees and reimbursements set forth in Schedule II hereto
(the "Fee Schedule").
7. Amendment and Assignments
a. The terms of this Agreement may be waived, amended or supplemented
only by agreement in writing duly executed by the Issuer and the
Exchange Agent.
b. None of the rights or obligations of the parties under this Agreement
may be assigned except (i) upon receipt of prior written consent of
the other party to this Agreement or (ii) as otherwise specifically
permitted under this Agreement. Any assignment or delegation in
violation of this Clause 7.b. shall be null and void.
c. In the event of an amendment of the Exchange Offer by the Issuer, the
Issuer shall promptly provide notice thereof to the Exchange Agent.
The Exchange Agent agrees to use its reasonable efforts to follow the
instructions of the Issuer in respect of the amended Exchange Offer to
the extent that the actions the Exchange Agent is instructed to take
in relation to such amendment are consistent with the terms hereof
(including, without limitation, the terms of the Services
5
Schedule). The indemnity in Clause 5 hereof shall cover the actions so
taken by the Exchange Agent at the instructions of the Issuer.
d. The Issuer may at any time appoint such additional or successor
Exchange Agents as it may deem appropriate, provided, however, that
the Issuer's obligations to the Exchange Agent under Clause 5 shall
survive any such appointment.
8. Partial Invalidity
In the event that any provision of this Agreement or the application
thereof to any person or circumstances is determined to be invalid or
unenforceable to any extent, the remaining provisions of this Agreement,
and the application of such provisions to persons or circumstances other
than those as to which they are to be invalid or unenforceable, shall be
unaffected thereby and such provisions shall be valid and enforced to the
fullest extent permitted by law in such jurisdiction so long as the
fundamental relationships among the parties hereunder are not altered.
9. Benefits
This Agreement is for the exclusive benefit of the parties hereto (and
their successors) and shall not be deemed to give any legal or equitable
right, remedy or cause whatsoever to any other person, except to the extent
specifically set forth in this Agreement. Nothing herein shall be deemed to
establish a fiduciary or similar relationship among the parties hereto.
10. Force Majeure
The Exchange Agent shall be excused from performance of its obligations
under this Agreement and shall not be liable for any losses, damages, or
expenses caused by the occurrence of any contingency beyond its control,
including, without limitation, nationalisation, expropriations, currency
restrictions, work stoppages, strikes, fire, civil unrest, insurrections,
revolutions, riots, rebellions, acts of terrorism, explosions, floods,
computer failures, acts of war, acts of God or similar occurrences, nor
shall the Exchange Agent incur any liability if it shall be prevented or
forbidden from doing or performing any act or thing required by the terms
of this Agreement by reason of any provision of any present or future law
or regulation of any country or of any other governmental authority or
regulatory authority or stock exchange or on account of possible criminal
or civil penalties or restraint.
11. Entire Agreement
This Agreement (including the Schedules hereto) sets forth the entire
understanding of the parties in respect of the subject matter hereof and
supersedes any and all prior agreements, arrangements and understandings
relating thereto.
6
12. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, and all of which together shall constitute one
and the same agreement.
13. Titles
a. All references in this Agreement to clauses, schedules and other
subdivisions refer to the clauses, schedules and other subdivisions of
this Agreement unless expressly provided otherwise. The words "this
Agreement", "herein", "hereof", "hereby", "hereunder" and words of
similar import refer to the Agreement as a whole as in effect between
the parties and not to any particular subdivision unless expressly so
limited. Pronouns in masculine, feminine and neuter gender shall be
construed to include any other gender, and words in the singular form
shall be construed to include the plural and vice versa unless the
context otherwise requires.
b. Titles to clauses of this Agreement are included for convenience only
and shall be disregarded in construing the language contained in this
Agreement.
14. Notices
a. All notices and communications hereunder shall be made in writing (by
letter or facsimile) and shall be sent as follows:
(1) If to the Issuer:
Wal-Mart Stores, Inc.
000 X.X. 0/xx/ Xxxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
X.X.X.
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Assistant General Counsel, Corporate Division
(2) If to the Exchange Agent, at:
Bank One, NA
00 Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone: x00 (0)00 0000-0000/12
Fax: x00 (0)00 0000-0000
Attention: Corporate Trust
7
b. Every notice or communication sent in accordance with this Clause 14
shall be effective, if sent by letter or facsimile, upon receipt by
the addressee, provided, however, that any such notice or
communication which would otherwise take effect after 4:40 p.m. on any
particular day shall not take effect until 10:00 a.m. on the
immediately succeeding Business Day in the place of the addressee.
c. All notices and other communications hereunder shall be made in the
English language.
15. Governing Law and Jurisdiction
a. This Agreement is governed by and shall be construed in accordance
with English law.
b. The courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and
accordingly any legal action or proceedings arising out of or in
connection with this Agreement ("Court Proceedings") may be brought in
such courts. The Issuer and the Exchange Agent irrevocably submit to
the jurisdiction of such courts and waive any objection to Court
Proceedings in such courts on the ground of venue or on the ground
that the Court Proceedings have been brought in an inconvenient forum.
These submissions are made for the benefit of the other parties to
this Agreement and shall not limit the right of either party to take
Court Proceedings in any other court of competent jurisdiction nor
shall the taking of Court Proceedings in one or more jurisdictions
preclude the taking of Court Proceedings in any other jurisdiction
(whether concurrently or not).
c. The Issuer agrees that the process by which any Court Proceedings are
begun may be served on it by being delivered, in connection with any
Court Proceedings in England, to Asda Group Limited at Asda House,
Southbank, Great Xxxxxx Xxxxxx, Xxxxx XX00 0XX, Xxxxxx Xxxxxxx. If
such person is not or ceases to be effectively appointed to accept
service of process on behalf of the Issuer, the Issuer shall appoint a
further person in England to accept service or process on its behalf
and, failing such appointment within 15 days, the Exchange Agent shall
be entitled to appoint such a person by written notice to the Issuer.
Nothing in this Clause 15 shall affect the right of the Exchange Agent
to serve process in any other manner permitted by law.
8
This Agreement has been entered into effective the date stated at the beginning
hereof.
WAL-MART STORES, INC. BANK ONE, NA
By: /s/ Xxxx X. Xxxxxxx By: ______________________
----------------------
Name: Xxxx X. Xxxxxxx Name: ______________________
Title: Vice President of Planning & Analysis Title: ______________________
9
SCHEDULE I
SERVICES SCHEDULE
A. Definitions
Unless otherwise set forth herein, all capitalised terms used but not
otherwise defined herein shall have the meaning given to such terms in the
Offering Memorandum.
B. Services
The Exchange Agent shall provide the following services:
I. Distribution of Exchange Materials
The Issuer and the Dealer Manager have made arrangements to deliver the
Offering Memorandum and other materials related thereto (the "Exchange
Materials") to persons entitled to accept the offer and otherwise to
publicise the Exchange Offer and communicate with holders of the Asda Debt
Securities. The Exchange Agent shall coordinate distribution of Exchange
Materials and provide the same to Holders if so requested, and will assist
the Issuer and the Dealer Manager in publicising the Exchange Offer and
communicating with holders of the Asda Debt Securities as may be required.
II. Tenders
Tenders of Asda Debt Securities may be made only as set forth in the
Exchange Materials and, in particular, only in the manner set forth under
the caption entitled "The Exchange Offer--Procedures for Tendering Asda
Debt Securities" in the Offering Memorandum.
III. Guaranteed Delivery Procedures
No guaranteed delivery procedures will be made available in the Exchange
Offer.
IV. Examination of Tenders
The Exchange Agent shall examine the documents or communications delivered
to it in connection with a tender of Asda Debt Securities to ascertain
whether (i) the Form of Tender or Electronic Communication, as the case may
be, has been (as applicable) properly completed, duly executed and
delivered to the Exchange Agent on time, and (ii) the Asda Debt Securities
have otherwise been validly tendered, in each case on or prior to the
Expiration Date.
The Exchange Agent will follow its regular procedures (including by way of
communications with the Clearing Systems and the Dealer Manager) to attempt
to reconcile any discrepancies between the aggregate principal amount of
Asda Debt Securities indicated in any Form of Tender or Electronic
Communication and the aggregate principal amount of Asda Debt Securities
delivered to the Exchange Agent. In any instance where the Exchange Agent
cannot reconcile such discrepancies by following
10
such procedures, the Exchange Agent will consult with the Issuer for
instructions as to the aggregate principal amount of Asda Debt Securities,
if any, the Exchange Agent is authorised to accept in the Exchange Offer.
In the absence of such instructions, the Exchange Agent shall not accept
any such Asda Debt Securities in the Exchange Offer.
V. Irregular Tenders
In the event the Exchange Agent determines that any Form of Tender or
Electronic Communication or any other required document does not appear to
have been properly completed or executed, or that any other irregularity in
connection with any tender appears to exist, the Exchange Agent shall take
reasonable and appropriate steps to contact the person tendering such Asda
Debt Securities so as to enable the necessary correction by the tendering
Holder. All questions as to the form of documents, validity, form,
eligibility (including timeliness of receipt) and acceptance for exchange
of any tender of Asda Debt Securities shall be determined by the Exchange
Agent on behalf of the Issuer in the first instance. If irregularities with
respect to any tenders have been identified by the Exchange Agent and are
not remedied, the Exchange Agent shall refer final determination to the
Issuer by promptly sending to the Issuer any document or copy thereof which
in its judgment would prevent acceptance thereof, and the Issuer shall make
the final decision whether or not to accept such tender. Upon acceptance by
the Issuer of such irregular Asda Debt Securities tendered pursuant to the
Exchange Offer, the Issuer shall confirm such acceptance in writing to the
Exchange Agent. In the event that the Issuer does not accept a tender, the
Issuer will provide to the Exchange Agent a letter or other writing
explaining the reason for the non-acceptance. Defective submissions shall
be deemed validly made at the time if the irregularities have been cured to
the satisfaction of, or waived by, the Issuer. If any such irregularities
are neither so cured nor waived, tendered Asda Debt Securities that are the
object of the defective submission shall be returned to the applicable
Clearing System accountholder or the Holder, as the case may be, together
with any other documents received in connection therewith and the letter or
other writing that the Issuer will have furnished to the Exchange Agent
explaining the reasons for the return of such Asda Debt Securities and the
other documents. The Exchange Agent agrees to act promptly in accordance
with any reasonable instructions given to it by the Issuer pursuant to this
clause.
VI. Reports, Maintenance and Retention of Records
A. Reports
The Exchange Agent shall provide written reports by facsimile transmission
or other acceptable form of delivery, weekly, or more frequently if
reasonably requested by the Issuer and/or the Dealer Manager and, to the
extent the Exchange Agent has activity to report, until the final week of
the Exchange Offer, whereupon the Exchange Agent shall provide daily
reports, to a person or persons designated by the Issuer, specifying the
following:
(i) the aggregate principal amount of Asda Debt Securities (noting in each
case, the corresponding security identification numbers)) validly
tendered since the
11
delivery of the last such report, together with all other relevant
information relating to such tenders as set forth in the applicable
Form of Tender or Electronic Communication;
(ii) the numbers of Holders who have validly tendered Asda Debt
Securities (noting in each case, the corresponding security
identification number(s)), in each case, since the commencement of
the Exchange Offer, together with all other relevant information
relating to such tenders as set forth in the applicable Form of
Tender or Electronic Communication;
(iii) information in reasonable detail relating to any withdrawals of
tenders of Asda Debt Securities since the delivery of the last such
report;
(iv) information in reasonable detail relating to defective tenders which
have been received by it, including the status thereof, and
(v) information in reasonable detail relating to any payments of any
Cash Rounding Amount to be made and the Wal-Mart Notes to be
delivered on the Settlement Date.
B. Maintenance and Retention of Records
During the term of this Agreement, the Exchange Agent will keep and
maintain complete and accurate account ledgers showing all Asda Debt
Securities exchanged and payments made by it. The Exchange Agent shall
retain records of each Form of Tender and Electronic Communication and any
other materials relating to the Exchange Offer submitted to the Exchange
Agent or its agents by the Issuer or any Holder of Asda Debt Securities or
otherwise and shall remit copies of the same to or to the order of the
Issuer if so requested by the Issuer.
VII. Delivery of Wal-Mart Notes
On the Settlement Date, the Exchange Agent shall, in accordance with
procedures to be agreed with the Issuer, deliver or cause to be delivered
by means of book-entry delivery through the applicable Clearing System the
applicable aggregate principal amount of Wal-Mart Notes to the accounts of
the Clearing System accountholders specified in the applicable Forms of
Tender or Electronic Communications upon receipt of confirmation from the
Issuer that (i) the tendered Asda Debt Securities have been accepted in
the Exchange Offer, and (ii) the requisite aggregate principal amount of
Wal-Mart Notes have been deposited with the common depository or custodian
for the Wal-Mart Notes to support the issuance of the same. Following the
Settlement Date, the Exchange Agent will deliver all of the Asda Debt
Securities tendered by Physical Delivery to the Issuer and will assist the
Issuer in effecting the transfer of beneficial ownership of all Asda Debt
Securities tendered by Electronic Communication.
VIII. Cash Rounding Amount
12
Because the Issuer will only issue Wal-Mart Notes in denominations of
(pound)1,000 and integral multiples of (pound)1,000, the aggregate
principal amount of the Wal-Mart Notes that Holders of Asda Debt Securities
receive will be rounded down to the nearest authorised denomination, if
rounding is necessary, and any cash rounding amount (the "Cash Rounding
Amount") will be paid to any such Holder in cash denominated in British
pounds sterling ("Pounds Sterling").
A. The Exchange Agent in consultation with the Issuer and the Dealer
Manager shall calculate the amount of Wal-Mart Notes and any Cash Rounding
Amount to be received by each Holder. In the event of any disparity, the
Issuer's determination shall be conclusive.
B. The Issuer shall pay or cause to be paid, to such account as the
Exchange Agent shall have specified for such purpose, no later than 12:00
noon (London time) on the Settlement Date in same day funds an amount in
Pounds Sterling sufficient to pay the full amount payable in respect of any
Cash Rounding Amount due on that date to the Holders of Asda Debt
Securities.
C. Subject to the Exchange Agent having received (i) from the Issuer, the
total amount in Pounds Sterling required for the payment in full of any
Cash Rounding Amount due to the Holders of Asda Debt Securities on the
Settlement Date, and (ii) from any such Holder, such United States Internal
Revenue Service forms and certificates as are necessary to confirm that no
United States tax withholding is necessary, the Exchange Agent shall, on
the Settlement Date, make payments of any Cash Rounding Amount to the
Holders in accordance with the Offering Memorandum.
D. For the avoidance of doubt, unless and until the Exchange Agent has
received the full amount required in Pounds Sterling for all such payments,
the Exchange Agent shall not be bound to make any payments to the Holders
in respect of any Cash Rounding Amount.
IX. No Acceptance of Tenders of Other Securities
The Exchange Agent, in such capacity, shall not accept delivery of any
securities other than Asda Debt Securities and shall refuse to accept
delivery of (i) any attempted tenders of securities other than Asda Debt
Securities or (ii) any tenders of Asda Debt Securities not accompanied by a
duly completed and signed (as applicable) corresponding Form of Tender or
Electronic Communication.
X. Loss, Theft or Destruction of Asda Debt Securities
If any Holder of Asda Debt Securities reports to the Exchange Agent that
his/her failure to surrender his/her Asda Debt Securities is due to the
loss, theft or destruction of his/her Asda Debt Securities, the Exchange
Agent shall require such Holder to furnish an affidavit of such loss, theft
or destruction in customary form and substance satisfactory to the Exchange
Agent. Upon receipt of such affidavit and compliance with any other
reasonable requirements of the Exchange Agent, the Exchange Agent shall on
the Settlement Date deliver, or cause to be delivered, the Wal-Mart Notes
and the Cash
13
Rounding Amount, if any, to such person as though he or she had surrendered
his or her Asda Debt Securities. Notwithstanding any of the foregoing, when
authorising such delivery and payment in exchange for any lost, stolen or
destroyed Asda Debt Security, the person to whom the delivery and payment
is to be made shall, as a condition precedent to such delivery and payment,
provide an indemnity in a manner reasonably satisfactory to the Exchange
Agent and the Issuer, indemnifying the Exchange Agent and the Issuer
against any claim that may be made against the Exchange Agent or the Issuer
with respect to the Asda Debt Security alleged to have been lost, stolen or
destroyed.
XI. Cooperation
The Exchange Agent shall cooperate with the Dealer Manager retained by the
Issuer in connection with the Exchange Offer. The Exchange Agent shall not
have any obligation for any action taken or not taken by such Dealer
Manager.
The Issuer reserves the right to terminate or amend the Exchange Offer. In
the event of an amendment to the Exchange Offer, the Exchange Agent will
follow the reasonable instructions of the Issuer with respect to the
amended Exchange Offer to the extent consistent with this Agreement.
XII. Telephone Inquiries
In the event of any telephone inquiry received by the Exchange Agent in
respect of the Exchange Offer (other than from a person who has duly
tendered Asda Debt Securities pursuant to a duly completed and signed (as
applicable) Form of Tender or Electronic Communication), the Exchange Agent
shall refer such inquiry to the Dealer Manager or to such other person as
the Issuer may specify to the Exchange Agent. The Exchange Agent shall not
make any statements in respect of the Exchange Offer not previously
authorised by the Issuer.
14
SCHEDULE II
FEE SCHEDULE
Tender and Exchange Agent Acceptance Fee USD _________
The Tender and Exchange Agent Acceptance Fee covers:
i. Receipt of up to 100 Letters of Transmittal / Submissions for Exchange from
the existing debt holders
ii. Reconciliation of those presentations with the blocking by holders of
corresponding positions held within the ICSDs.
iii. Delivery of the new securities and/ or cash to the investors.
In the event that more than 100 Letters of Transmittal / Submissions for
Exchange are received the following addition fees are applicable:
Processing of Letters of Transmittal USD _____ per Letter of Transmittal
(This includes Reconciliation of those letters with the blocking by holders of
corresponding positions held within the ICSDs and delivery of the new securities
and/ or cash to the investor)
Out of Pocket Expenses
Cash Fractions:
Re. Per Cheque produced and processed No cheques will be issued
Re. Per Wire WAIVED
Miscellaneous Notes
1) Our undertaking to act as Agent is subject to the agreement to the operations
of a cash and securities account; to facilitate the functionality of the
transaction; maintained on the client's behalf by Bank One, NA.
2) Fees relating to Agency services are payable in advance or on the closing
date.
3) Out of pocket expenses, such as, but not limited to legal, publication, or
printing (including definitive notes) costs are in addition to the fees
outlined above.
4) Bank One reserved the right to pass on to the client any charges levied upon
them by sub-paying agents (as applicable) or clearing systems (other than
Euroclear and Clearstream S.A.) in respect of securities issuance and
settlement in domestic markets.
The above fees are subject to our review and acceptance of the governing
documentation. Additionally, the fees and our ability to act hereunder are
subject to modification or withdrawal should subsequent review disclose
unanticipated duties, or credit standard deficiencies.
15
