Pre-Effective Amendment to Registration Statement for Securities Offered Pursuant to a Transaction — Form S-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-3/A Amendment No. 1 to S-3 36 145K
2: EX-1.A Form of Bond Purchase Agreement 21 69K
3: EX-4.A Form of Guaranty 10 32K
4: EX-4.B Form of Trust Agreement 115 238K
5: EX-4.C Form of Loan Agreement 61 208K
6: EX-23.A Consent of Ernst & Young LLP 1 6K
EXHIBIT 4(a)
GUARANTY
--------
THIS GUARANTY is made and entered into as of February __, 1995, by WAL-MART
STORES, INC., a corporation duly organized and existing under the laws of the
State of Delaware (the "Guarantor"), in favor of PUERTO RICO INDUSTRIAL,
TOURIST, EDUCATIONAL, MEDICAL AND ENVIRONMENTAL CONTROL FACILITIES FINANCING
AUTHORITY (the "Authority").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, PALMA REAL ASSOCIATES, S.E. (the "Borrower"), a partnership formed
under the laws of the Commonwealth that has elected to be treated as a special
partnership in accordance with the provisions of the Puerto Rico Income Tax Act
of Nineteen Hundred Fifty-four (1954), as amended, and Act Number Three (3) of
September twenty-seven (27), nineteen hundred eighty-five (1985), and the
Authority entered into the Loan Agreement dated as of February 1, 1995 as it may
be from time to time amended, supplemented, extended, renewed or otherwise
modified (hereinafter called the "Loan Agreement") pursuant to which the
Authority has undertaken to issue bonds in the aggregate principal amount of
$43,450,000 (the "Bonds") the proceeds of which will be loaned to the Borrower
to finance the cost of the acquisition, construction, development, equipping,
installation and improvement of a shopping center located in Humacao, Puerto
Rico (the "Project") and to pay expenses incurred in connection with the
issuance of the Bonds;
WHEREAS, the Bonds are issued under and secured by, among other things,
that certain Trust Agreement, dated the date of issuance of the Bonds (the
"Trust Agreement"), by and between the Authority and BANCO POPULAR DE PUERTO
RICO (the "Trustee"). Any term used herein which is not defined in this
Guaranty and which is defined in the Trust Agreement shall have the same meaning
in this Guaranty as in the Trust Agreement;
WHEREAS, the Loan Agreement provides that the Borrower will make all
payments of principal, premium, if any, and interest due on the Bonds;
WHEREAS, Wal-Mart Puerto Rico, Inc., a wholly owned subsidiary of the
Guarantor, is one of the partners of the Borrower;
WHEREAS, the Authority, in order to secure the monetary obligations of the
Borrower under the Loan Agreement, has required that the Borrower cause the
Guarantor to execute and deliver this Guaranty;
WHEREAS, the Guarantor desires that the Authority issue and sell the Bonds
and apply the proceeds for the purposes described in the Loan Agreement and, in
order to provide an inducement to the Authority to issue and sell the Bonds and
an inducement to the purchasers of the Bonds and all who shall at any time
become
holders thereof, the Guarantor is willing to execute and deliver this Guaranty;
WHEREAS, the Authority desires to assign this Guaranty to the Trustee for
the benefit of the bondholders and the Guarantor agrees to such assignment;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby covenant
and agree with each other as follows:
ARTICLE I
---------
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
-----------------------------------------------
The Guarantor does hereby represent and warrant that it is a corporation
organized, existing and in good standing under the laws of the State of Delaware
with all requisite power and authority to enter into and perform all agreements
on its part herein contained and it has been authorized to enter into this
Guaranty by all proper corporate action.
ARTICLE II
----------
COVENANTS AND AGREEMENTS
------------------------
SECTION 2.1. The Guarantor hereby unconditionally guarantees to the
Authority, jointly and severally ("in solidum") with the Borrower, the full and
prompt payment of the then current Exposure Amount (up to a maximum equal to the
then current Enhancement Amount), all as applicable from time to time, and in
the Event of a Default under the Trust Agreement or the Loan Agreement, as the
case may be, entitling the Authority to make a claim under this Guaranty, the
Guarantor hereby agrees to make payment of the then current Enhancement Amount
to the Authority within ten (10) days following written demand to the Guarantor
by the Trustee, for the benefit of the then holders of the Bonds, which written
demand shall be on the form attached hereto as Exhibit "A" and made to form a
part hereof.
All payments by the Guarantor hereunder shall be made in lawful money of
the United States of America.
SECTION 2.2. (a) The obligations of the Guarantor under this Guaranty
shall be independent, absolute and unconditional without regard to the validity,
legality, or enforceability of the Bonds or of the obligations of the Borrower
under the Loan Agreement or of any other instrument delivered in connection with
the Bonds or the Loan Agreement or any other circumstance which might otherwise
constitute a legal or equitable discharge of a
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surety or guarantor and shall remain in full force and effect, subject to the
provisions of Articles III, IV, V and VII hereof, until the entire then current
Exposure Amount (up to a maximum equal to the then current Enhancement Amount),
shall have been paid or provided for and such obligations, subject to the
provisions of Articles III, IV, V, and VII hereof, shall not be affected,
modified or impaired by the happening from time to time of any event whatsoever,
including any law, regulation or decree which might in anyway affect any of the
terms and or provisions or rights of any holder of the Bonds with respect
thereto as against the Authority.
(b) The Guarantor hereby consents that from time to time and with notice
to, but without the consent or approval of, the Guarantor, the obligations,
indebtedness or liabilities of the Borrower under the Loan Agreement may be
waived, renewed, extended or accelerated in accordance with any agreement
between the Trustee, the bondholders and the Borrower without affecting the
liabilities of the Guarantor under this Guaranty; provided, however, that the
written consent of the Guarantor shall be required prior to any modification
which requires the Guarantor's consent pursuant to Section 1105 of the Trust
Agreement or that would increase the then current Exposure Amount and the then
current Enhancement Amount or any of the Guarantor's obligations under this
Guaranty.
(c) This Guaranty shall extend to any payment, or any part thereof, on the
Bonds that is rescinded and required to be returned by a bondholder upon the
insolvency, bankruptcy or reorganization of the Authority or the Borrower, or
otherwise, all as though such payment had not been made. However, in no event
will the liability of the Guarantor exceed the then current Enhancement Amount
in effect at the time a claim is presented by the Trustee with respect to such
payment.
SECTION 2.3. Subject in all cases to the provisions of Articles III, IV,
V and VII hereof, no set-off, counterclaim, reduction or diminution of any
obligation, or any defense of any kind or nature which the Guarantor has or may
come to have against the Authority, the Borrower, the Trustee or any of the
bondholders shall be available to the Guarantor, except as related to a payment
hereunder; provided that nothing contained herein shall prohibit the Guarantor
from asserting any claim against the Authority, the Borrower, the Trustee or any
of the bondholders in a separate proceeding, which proceeding shall in no way
delay the prompt performance by the Guarantor of its obligations under this
Guaranty.
SECTION 2.4. The following shall constitute events of default hereunder:
3
(a) Failure by the Guarantor to make a payment when and as due hereunder;
(b) If the Guarantor shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a
receiver, custodian, liquidator, assignee, trustee or sequestrator (or other
similar official) of itself or of all of its property, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or if the Guarantor or its directors or majority
shareholders shall take any action in furtherance of any of the forgoing (except
in connection with a consolidation or a merger of the Guarantor with or into
another corporation or transfer of all or substantially all the assets of the
Corporation not prohibited by Section 10.1 hereof); or
(c) If a court having jurisdiction in the premises shall enter a decree
or order for relief in respect of the Guarantor in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, custodian, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Guarantor or of its affairs, and
the continuance of such decree or order unstayed and in effect for a period of
one-hundred eighty (180) consecutive days.
SECTION 2.5. In the event of a default: (a) in the payment of principal
of the Bonds when and as the same shall become due, whether at the stated
maturity thereof, by acceleration, by redemption prior to maturity or otherwise;
(b) in the payment of any interest on the Bonds when and as the same shall
become due; or (c) in the payment of the redemption price upon the redemption of
any portion of the Bonds; or (d) under Section 2.4 hereof, and regardless of the
reason for any such default, the Authority, on behalf of the bondholders and all
who may become holders at any time and from time to time of the Bonds, may
proceed first and directly against the Guarantor under this Guaranty without
proceeding against or exhausting any other remedies which it may have and
without resorting to any other security held by the Authority. The Guarantor
agrees to pay all reasonable costs, expenses and fees, including all reasonable
attorneys' fees, which may be incurred by the Authority in enforcing this
Guaranty following any default on the part of the Guarantor under this Guaranty,
whether the same shall be enforced by suit or otherwise.
SECTION 2.6. Subject in all cases to the provisions of Articles III, IV,
V and VII hereof, the obligations of the Guarantor under this Guaranty shall be
satisfied in full and discharged when all monetary obligations of the Borrower
under the Loan Agreement, including, without limiting in any way the
4
generality of the foregoing, the Borrower's obligation to pay the Bonds, have
been satisfied, except as provided herein with respect to expenses incurred in
connection with the enforcement of this Guaranty.
ARTICLE III
-----------
LIMITATION ON LIABILITY OF THE GUARANTOR
----------------------------------------
Notwithstanding anything contained herein to the contrary, in no event
shall the Guarantor's liability under this guaranty at any time exceed the then
current Enhancement Amount, as the same may be reduced from time to time
pursuant to Article IV hereof. On the Date of Issuance, the Enhancement Amount
shall equal $43,473,608.75.
ARTICLE IV
----------
RELEASE OR PARTIAL RELEASE OF GUARANTY
--------------------------------------
SECTION 4.1. Following the assignment of this Guaranty to the Trustee by
the Authority, the Trustee shall hold the Guaranty as security for the payment,
at any time and from time to time, of the then current Exposure Amount (up to a
maximum equal to the then current Enhancement Amount), subject to reduction or
elimination of this Guaranty, at any time, upon receipt by the Trustee of (i)
Enhancement Amount Reduction Determinations and (ii) Enhancement Amount
Reduction Certifications. Upon delivery of the foregoing letters to the
Trustee, the Enhancement Amount shall automatically and permanently be reduced
to the new Enhancement Amount thereafter applicable.
The Borrower may cause there to be delivered to the Trustee, from time to
time, until the Enhancement Amount is reduced to zero, additional Enhancement
Amount Reduction Determinations and Enhance-ment Amount Reduction
Certifications.
SECTION 4.2. On each Principal Payment Date, if no event of default shall
then be declared and be continuing under this Guaranty or under any of the
Related Documents, the Enhancement Amount (unless a lower amount shall have been
determined as provided in Section 4.1) shall be recomputed to an amount equal to
the principal of the Bonds then outstanding, plus two hundred ten (210) days'
interest thereon at eight and one-tenth percent (8.1%) per annum, less the
Reserve Fund Amount. The Trustee shall notify the Guarantor of the then current
Enhancement Amount as so computed on each such Principal Payment Date.
SECTION 4.3. If the then current Enhancement Amount shall be reduced, the
Guaranty shall be amended (without the need of a formal written amendment to
this Guaranty) to reduce the liability of the Guarantor to the new Enhancement
Amount. If the then
5
current Enhancement Amount shall be zero or less than zero, the Trustee shall
cancel and deliver this Guaranty to the Guarantor.
SECTION 4.4. In no event will the Enhancement Amount be increased or
reinstated once reduced or eliminated.
ARTICLE V
---------
SUBSTITUTION OF GUARANTY
------------------------
Subject to the requirements of Section 4.09 of the Loan Agreement, the
Borrower may provide for the delivery to the Trustee of a new Credit Enhancement
or Cash Collateral to substitute for this Guaranty. In the event such a
substitution takes place, the Trustee shall cancel and deliver this Guaranty to
the Guarantor.
ARTICLE VI
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RIGHTS OF THE GUARANTOR
-----------------------
In the event that the Trustee shall make a claim against the Guaranty, the
Guarantor, upon the total and complete payment of the Bonds, shall be entitled
to receive from the Trustee (i) any funds or securities held by the Trustee in
any fund or account existing under the Trust Agreement, and (ii) an assignment
of all of the Trustee's interest, if any, in the Related Documents until the
Guarantor shall have been reimbursed in full for all then unreimbursed sums paid
out by the Guarantor under this Guaranty.
ARTICLE VII
-----------
SURRENDER OF GUARANTY UPON PAYMENT OF THE BONDS
-----------------------------------------------
Upon payment of the Bonds, and in the event that this Guaranty shall then
be outstanding, the Trustee shall cancel and deliver this Guaranty to the
Guarantor.
ARTICLE VIII
------------
ASSIGNMENT OF GUARANTY
----------------------
The Authority does hereby assign and convey to the Trustee, for the benefit
of the bondholders and all who may become holders at any time and from time to
time of the Bonds, the Authority's right, title and interest in and to this
Guaranty and the Guarantor does hereby consent to such assignment.
6
ARTICLE IX
----------
NOTICE AND SERVICE OF PROCESS,
------------------------------
PLEADINGS AND OTHER PAPERS
--------------------------
The Guarantor hereby irrevocably appoints, its wholly owned subsidiary,
WAL-MART PUERTO RICO, INC., a Puerto Rico corporation ("WMPR"), as its agent for
service of process in the Commonwealth. If WMPR shall cease to do business in
the Commonwealth, the Guarantor will irrevocably appoint one of its other
subsidiaries designated in writing to the Authority which shall be qualified to
do, and actively engaged in, business in the Commonwealth or the office of C.T.
Corporation System in the Commonwealth, as its agent for service of process in
the Commonwealth. If all such subsidiaries shall cease to be qualified or to do
business in the Commonwealth and the office of C. T. Corporation System in the
Commonwealth shall cease to act as such agent, the Guarantor hereby irrevocably
appoints the Secretary of State of the Commonwealth, as its agent for service of
process in the Commonwealth. The aforesaid agents shall serve as agents of the
Guarantor upon whom may be served all process, pleadings, notices or other
papers which may be served upon the Guarantor as a result of any of its
obligations under this Guaranty.
ARTICLE X
---------
MISCELLANEOUS
-------------
SECTION 10.1. The Guarantor covenants that while this Guaranty remains
outstanding, it will maintain its corporate existence, will not dissolve or
otherwise dispose of all or substantially all of its assets; except, however,
that the Guarantor may consolidate with or merge into another corporation, or
sell or otherwise transfer to another corporation all or substantially all of
its assets and thereafter dissolve, provided that the following conditions are
met:
(a) the successor formed by or resulting from such consolidation, transfer
or merger shall be a corporation organized under the laws of one of the States
of the United States of America or of the District of Columbia;
(b) the successor corporation, if other than the Guarantor, shall assume
in writing the full and faithful performance of the Guarantor's duties and
obligations under this Guaranty; and
(c) immediately after such consolidation, transfer or merger, neither the
Guarantor nor such successor corporation, if other than the Guarantor, shall be
in default in the performance or observance of any duties, obligations or
covenants under this Guaranty.
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SECTION 10.2. No remedy herein conferred upon or reserved to the Authority
is intended to be exclusive of any other available remedy, all such remedies
being cumulative and in addition to every other remedy given under this Guaranty
or now or hereafter existing at law or in equity. No delay or omission to
exercise any right or power accruing upon any default, omission or failure of
performance under the Guaranty shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In the event any
provision contained in this Guaranty should be breached by the Guarantor and
thereafter duly waived by the Authority, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
under this Guaranty. No waiver, amendment, release or modification of this
Guaranty shall be established by conduct, custom or course of dealing.
SECTION 10.3. The invalidity or unenforceability of any one or more
provisions in this Guaranty shall not affect the validity or enforceability of
the remaining portions of this Guaranty, or any part thereof.
SECTION 10.4. This Guaranty may be amended, to the extent and upon the
same conditions as are provided herein and in the Trust Agreement with regard to
the amendment of the Guaranty, by the parties hereto in writing.
SECTION 10.5. This Guaranty shall be governed by and construed in
accordance with the laws of the Commonwealth. The Guarantor hereby submits to
the jurisdiction of the local and federal courts in the Commonwealth for
purposes of any action arising from or growing out of this Guaranty.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered to the Authority in its name and behalf by its duly authorized
officer as of the date first above written.
WAL-MART STORES, INC.
By:________________________
Name:
Title:
ACCEPTED the ______ day of February, 1995.
PUERTO RICO INDUSTRIAL, TOURIST,
EDUCATIONAL, MEDICAL AND ENVIRONMENTAL
CONTROL FACILITIES FINANCING AUTHORITY
By:_____________________________
Gregory Kaufman
Executive Director
9
EXHIBIT "A"
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GUARANTY DRAW REQUEST
---------------------
DRAW AMOUNT: $__________________
ENHANCEMENT AMOUNT
ON THE DATE HEREOF: $__________________
BORROWER: PALMA REAL ASSOCIATES, S.E.
TRUSTEE: BANCO POPULAR DE PUERTO RICO
GUARANTOR: WAL-MART STORES, INC.
LENDER: PUERTO RICO INDUSTRIAL, TOURIST, EDUCATIONAL, MEDICAL AND
ENVIRONMENTAL CONTROL FACILITIES FINANCING AUTHORITY
PROJECT: PLAZA PALMA REAL, Humacao, Puerto Rico
1. I, _________________________, the ______________________ of the
Trustee, am duly authorized to make this Guaranty Draw Request on behalf of the
Trustee.
2. I am familiar with the terms and conditions of the Guaranty issued by
the Guarantor in favor of the Authority dated as of February __, 1995 and with
the terms of the Trust Agreement and Related Documents executed in connection
with the bonds issued by the Authority to finance the Project.
3. The Borrower is in default under the terms of the Loan Agreement
and/or the Related Documents, as follows:
________________________________________________________________________________
________________________________________________________________________________
4. The Guaranty, and the obligations of the Guarantor thereunder, are on
the date hereof outstanding and remain in full force and effect.
5. The amount drawn pursuant to this draw does not exceed the Enhancement
Amount applicable on the date hereof.
6. As a result of such default, Trustee, as assignee of the Authority
under the Guaranty, hereby makes a draw under the Guaranty for the Draw Amount
first above stated.
BANCO POPULAR DE PUERTO RICO
By: ________________________
Name:
Title:
10
Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-3/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 2/21/95 | | | | | | | None on these Dates |
| | 2/1/95 | | 1 |
| List all Filings |
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