EXHIBIT 5.1
March 25, 2002
Costco Wholesale Corporation
999 Lake Drive
Issaquah, Washington 98027
Re: Costco Wholesale Corporation - Public Offering of 5 1/2% Senior Notes
Due March 15, 2007
Ladies and Gentlemen:
We have acted as counsel to Costco Wholesale Corporation, a Washington
corporation (the "Company"), in connection with the filing by the Company with
the Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-3 (File No. 333-01127) and a Registration Statement on Form
S-3 (File No. 333-72122) (together, the "Registration Statement") pursuant to
the Securities Act of 1933, as amended (the "Securities Act"), as declared
effective under the Securities Act, and the related prospectus dated March 20,
2002, as supplemented by a prospectus supplement dated March 20, 2002 (the final
prospectus, in the form filed with the Commission pursuant to Rule 424(b) of the
rules and regulations under the Act, the "Prospectus"), relating to the offering
by the Company of $300,000,000 aggregate principal amount of its 5 1/2% Senior
Notes Due March 15, 2007 (the "Securities"). The Securities will be issued
pursuant to a Senior Debt Securities Indenture dated October 26, 2001 and the
First Supplemental Indenture dated March 20, 2002, each between U.S. Bank
National Association, as Trustee, and the Company (collectively, the
"Indenture").
I.
We have assumed the authenticity of all records, documents and instruments
submitted to us as originals, the genuineness of all signatures, the legal
capacity of natural persons and the conformity to the originals of all records,
documents and instruments submitted to us as copies. We have based our opinion
upon our review of the following records, documents, instruments and
certificates and such additional certificates relating to factual matters as we
have deemed necessary or appropriate for our opinion:
(a) The Registration Statement;
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March 25, 2002
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(b) The Indenture;
(c) The Prospectus;
(d) The Securities;
(e) The Amended and Restated Articles of Incorporation (including all
amendments thereto) of the Company certified by the Washington
Secretary of State as of March 21, 2002, and certified to us by an
officer of the Company as being complete and in full force and effect
as of the date of this opinion;
(f) A Certificate of Existence relating to the Company issued by the
Washington Secretary of State, dated March 21, 2002;
(g) The Bylaws of the Company (and all amendments thereto) certified to us
by an officer of the Company as being complete and in full force and
effect as of the date of this opinion;
(h) Records certified to us by an officer of the Company as constituting
all records of proceedings and actions of the board of directors of
the Company relating to the issuance of the Securities by the Company;
and
(i) A certificate (the "Officer's Certificate") of an officer of the
Company as to certain factual matters.
II.
This opinion is limited to the federal laws of the United States of
America, the laws of the State of Washington, and the laws of the State of New
York, and we disclaim any opinion as to the laws of any other jurisdiction. We
express no opinion as to the applicable choice of law rules that may affect the
interpretation or enforcement of the Securities. We further disclaim any opinion
as to any statute, rule, regulation, ordinance, order or other promulgation of
any regional or local governmental body or as to any related judicial or
administrative opinion.
III.
Based upon the foregoing and our examination of such questions of law as we
have deemed necessary or appropriate for the purpose of our opinion, and subject
to the limitations and qualifications expressed herein, it is our opinion that
the Securities, when
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March 25, 2002
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sold and after receipt of payment therefor, will be legally issued, fully paid
and non-assessable and will constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
subject, as to enforcement, (i) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to or
affecting creditors' rights and (ii) to general principles of equity, whether
such enforceability is considered in a proceeding in equity or at law.
IV.
We further advise you that:
A. As noted, the enforceability of the Securities is subject to the
effect of general principles of equity. These principles include,
without limitation, concepts of commercial reasonableness, materiality
and good faith and fair dealing. As applied to the Securities, these
principles will require the parties thereto to act reasonably, in good
faith and in a manner that is not arbitrary or capricious in the
administration and enforcement of the Securities and will preclude the
parties thereto from invoking penalties for defaults that bear no
reasonable relation to the damage suffered or that would otherwise
work a forfeiture.
B. The enforceability of the Securities is subject to the effects of (i)
Section 1-102 of the New York Uniform Commercial Code (the "New York
UCC"), which provides that obligations of good faith, diligence,
reasonableness and care prescribed by the New York UCC may not be
disclaimed by agreement, although the parties may by agreement
determine the standards by which the performance of such obligations
is to be measured if those standards are not manifestly unreasonable,
(ii) Section 1-203 of the New York UCC, which imposes an obligation of
good faith in the performance or enforcement of a contract and (iii)
legal principles under which a court may refuse to enforce, or may
limit the enforcement of, a contract or any clause of a contract that
a court finds as a matter of law to have been unconscionable at the
time it was made.
C. The effectiveness of indemnities, rights of contribution, exculpatory
provisions and waivers of the benefits of statutory provisions may be
limited on public policy grounds.
D. Provisions of the Securities requiring that waivers must be in writing
may not be binding or enforceable if a non-executory oral agreement
has been created
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modifying any such provision or an implied agreement by trade practice
or course of conduct has given rise to a waiver.
V.
We hereby consent to the filing of this opinion as an exhibit to the
Current Report of the Company on Form 8-K and to the Registration Statement and
to the reference to this firm under the heading "Legal Opinions" in the
Prospectus or any supplement thereto constituting a part of the Registration
Statement.
This opinion is rendered to you in connection with the filing of the
Current Report of the Company on Form 8-K and is solely for your benefit and the
benefit of the purchasers of the Securities. This opinion may not be relied upon
by any other person, firm, corporation or other entity without our prior written
consent. We disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we become aware, after the date of this opinion.
Very truly yours,
Heller Ehrman White & McAuliffe LLP
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