EXHIBIT 1(b)
UNDERWRITING AGREEMENT
X.X. XXXXXX SECURITIES INC.
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
00 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
April 29, 1999
Dear Sirs:
Sears Xxxxxxx Acceptance Corp., a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain
of its debt securities registered under the registration
statement referred to in Section 2(a) (the "Securities"). The
Company intends to enter into one or more Pricing Agreements
(each a "Pricing Agreement") in the form of Annex I hereto, with
such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein
and therein, to issue and sell to the firms named in Schedule I
to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of the Securities specified
in Schedule II to such Pricing Agreement (with respect to such
Pricing Agreement, the "Designated Securities"). The Designated
Securities with respect to each Pricing Agreement shall be issued
under an indenture (the "Indenture") identified in such Pricing
Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom you
will act as representatives. This Underwriting Agreement shall
not be construed as an obligation of the Company to sell any of
the Securities or as an obligation of any of the Underwriters to
purchase the Securities. The obligation of the Company to issue
and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced
by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the
aggregate principal amount of such Designated Securities, the
public offering price of such Designated Securities, the purchase
price to the Underwriters of such Designated Securities, the names
of the Underwriters of such Designated Securities, the principal
amount of such Designated Securities to be purchased by each
Underwriter and the commission payable to the Underwriters with
respect thereto and shall set forth the date, time and manner of
delivery of such Designated Securities and payment therefor. The
Pricing Agreement shall also describe, in a manner consistent with
the Indenture and the registration statement and prospectus with
respect thereto, the principal terms of such Designated
Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any
other rapid transmission device designed to produce a written
record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall
be several and not joint.
2. Each of the Company and Sears, Xxxxxxx and Co. ("Sears")
represents and warrants to, and agrees with, each of the
Underwriters that:
a) A registration statement in respect of the
Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to you and, excluding exhibits to
such registration statement, but including all documents
incorporated by reference in the prospectus included therein, to
you for each of the other Underwriters have been declared
effective by the Commission in such form (any preliminary
prospectus included in such registration statement being
hereinafter called a "Preliminary Prospectus;" the various parts
of such registration statement, including all exhibits thereto
except Form T-1, each as amended at the time such part became
effective, being hereinafter collectively called the "Registration
Statement;" the prospectus relating to the Securities, in the form
in which it has most recently been filed with the Commission on or
prior to the date of this Agreement, being hereinafter called the
"Prospectus;" any reference herein to any Preliminary Prospectus
or the Prospectus shall be deemed to include the documents, if
any, incorporated by reference therein pursuant to the applicable
form under the Securities Act of 1933, as amended (the "Act"), as
of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to
include any documents filed after the date of such Preliminary
Prospectus or Prospectus, as the case may be, under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") and so
incorporated by reference; and any reference to the Prospectus as
amended or supplemented shall be deemed to refer to the Prospectus
as amended or supplemented in relation to the applicable
Designated Securities in the form in which it is first filed with
the Commission pursuant to Rule 424(b) of Regulation C under the
Act, including any documents incorporated by reference therein as
of the date of such filing);
(b) Except for statements in such documents which do not
constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after
substituting therefor any statements modifying or superseding such
excluded statements (i) the documents incorporated by reference in
the Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects
to the requirements of the Act or the Exchange Act, as applicable,
and the rules and regulations of the Commission thereunder, and
none of such documents, when they became effective or were so
filed, as the case may be, contained, in the case of documents
which became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and, in the case of documents which were filed under
the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (ii)
any further documents so filed and incorporated by reference when
they become effective or are filed with the Commission, as the
case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will
not contain, in the case of documents which become effective under
the Act, an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, and, in the case of
documents which are filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they are
made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through you expressly for use therein; at the Time of Delivery (as
defined in Section 5 hereof), the Indenture will be duly qualified
under, and will conform in all material respects to the
requirements of, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"); and
(c) Except for statements in documents incorporated therein by
reference which do not constitute part of the Registration
Statement or the Prospectus pursuant to Rule 412 of Regulation C
under the Act and after substituting therefor any statements
modifying or superseding such excluded statements, the
Registration Statement and the Prospectus conformed, and any
amendments or supplements thereto will, when they become effective
or are filed with the Commission, as the case may be, conform, in
all material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable effective
date as to the Registration Statement and as of the applicable
filing date as to the Prospectus, contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities
through you expressly for use in the Prospectus as amended or
supplemented relating to such Securities.
3. The Company represents and warrants to, and agrees with each
of the Underwriters that:
(a) Upon payment therefor as provided herein, the Securities
will have been duly and validly authorized and (assuming their due
authentication by the Trustee) will have been duly and validly
issued and will be valid, binding and enforceable obligations of
the Company in accordance with their terms, except as the same may
be limited by insolvency, bankruptcy, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other laws
similar relating to or affecting the enforcement of creditors'
rights generally or by general equity principles, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and will be
entitled to the benefits of the Indenture; and
(b) The issue and sale of the Securities pursuant to any
Pricing Agreement and the compliance by the Company with all of
the provisions of the Securities, the Indenture and this Agreement
will not conflict with or result in any breach which would
constitute a material default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company material to the Company pursuant
to the terms of any indenture, loan agreement or other agreement
or instrument for borrowed money to which the Company is a party
or by which the Company may be bound or to which any of the
property or assets of the Company, material to the Company, is
subject, nor will such action result in any material violation of
the provisions of the Certificate of Incorporation, as amended or
the By-Laws of the Company or, to the best of its knowledge, any
statute or any order, rule or regulation applicable to the Company
of any court or any federal, state or other regulatory authority
or other governmental body having jurisdiction over the Company,
and no consent, approval, authorization or other order of, or
filing with, any court or any such regulatory authority or other
governmental body is required for the issue and sale of the
Designated Securities except as may be required under the Act, the
Exchange Act, the Trust Indenture Act and securities laws of the
various states and other jurisdictions in which the Underwriters
will offer and sell the Designated Securities.
4. Upon the execution of the Pricing Agreement applicable
to any Designated Securities and authorization by you of the
release of the Designated Securities, the several Underwriters
propose to offer the Designated Securities for sale upon the
terms and conditions set forth in the Prospectus as amended or
supplemented.
The Pricing Agreement applicable to any Designated
Securities may provide that the Company and any entity acting as
an underwriter with respect to such Designated Securities may
enter into a deferred pricing agreement in the form set forth in
a schedule attached to such Pricing Agreement.
Each Underwriter represents and agrees that it will not, at
any time that such Underwriter is acting as an "underwriter" (as
defined in Section 2(11) of the Act) with respect to any
Designated Securities, transfer, deposit or otherwise convey any
such Designated Securities, into a trust or other type of special
purpose vehicle that issues securities or other instruments
backed in whole or in part by, or that represents interests in,
such Designated Securities without the prior written consent of
the Company.
5. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive
certificates registered in the name of Cede & Co., as nominee for
the Depository Trust Company, New York, New York ("DTC") (unless
otherwise specified in the Pricing Supplement) shall be delivered
by or on behalf of the Company to you for the account of such
Underwriter, against payment by such Underwriter or on its behalf
of the purchase price therefor, by certified or official bank
check or checks or wire transfer, as specified in such Pricing
Agreement, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time
and date specified in such Pricing Agreement or at such other
place and time and date as you and the Company may agree upon in
writing, such time and date being herein called the "Time of
Delivery" for such Securities.
6. Each of the Company and Sears agrees with each of the
Underwriters of Designated Securities:
(a) To make no further amendment or any supplement to the
Registration Statement or the Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to
such Securities and prior to the Time of Delivery for such
Securities without first having furnished you with a copy of the
proposed form thereof and given you a reasonable opportunity to
review the same; to advise you promptly of any such amendment or
supplement after such Time of Delivery and furnish you with
copies thereof and to file promptly all reports and any
definitive proxy or information statements required to be filed
by the Company or Sears, respectively, with the Commission
pursuant to Section 13 or 14 of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Securities, and during such same period
to advise you, promptly after the Company or Sears receives
notice thereof, of the time when the Registration Statement, or
any amendment thereto, or any amended Registration Statement has
become effective or any supplement to the Prospectus or any
amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any Prospectus, or the suspension of the
qualification of such Securities for offering or sale in any
jurisdiction, or the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amending or supplementing of the Registration Statement or
Prospectus or for additional information; and in the event of the
issuance of any such stop order or of any such order preventing
or suspending the use of any such Prospectus or suspending any
such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) Promptly from time to time to take such action as you
may reasonably request to qualify such Securities for offering
and sale under the securities laws of such jurisdictions as you
may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions
for as long as may be necessary to complete the distribution of
such Securities, provided that in connection therewith neither
the Company nor Sears shall be required to qualify as a foreign
corporation or to file a general consent to service of process in
any jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as you
may from time to time reasonably request, and, if the delivery of
a prospectus is required at any time in connection with the
offering or sale of such Securities and if at such time any event
shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is
delivered, not misleading, or, if for any other reason it shall
be necessary during such same period to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to
notify you and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and
(d) To make generally available to its security holders, in
accordance with the provisions of Rule 158 under the Act or
otherwise, as soon as practicable, but in any event not later
than forty-five days after the end of the fourth full fiscal
quarter (ninety days in the case of the last fiscal quarter in
any fiscal year) following the fiscal quarter ending after the
latest of (x) the effective date of the Registration Statement,
(y) the effective date of the post-effective amendment thereto
hereinafter referred to, and (z) the date of the filing of the
report hereinafter referred to, earning statements of the Company
and Sears and its consolidated subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and covering a
period of at least twelve consecutive months beginning after the
latest of (i) the effective date of such Registration Statement,
(ii) the effective date of the post-effective amendment, if any,
to such Registration Statement (within the meaning of Rule 158)
next preceding the date of the Pricing Agreement relating to the
Designated Securities and (iii) the date of filing of the last
report of the Company or Sears incorporated by reference into the
Prospectus (within the meaning of Rule 158) next preceding the
date of the Pricing Agreement relating to the Designated
Securities.
7. The Company agrees with each of the Underwriters of
Designated Securities:
(a) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing
to and including the earlier of (i) the termination of trading
restrictions for such Designated Securities, of which termination
you agree to give the Company prompt notice confirmed in writing,
and (ii) the Time of Delivery for such Designated Securities, not
to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after
such Time of Delivery and which are substantially similar to such
Designated Securities, without your prior written consent, which
consent shall not be unreasonably withheld, except pursuant to
arrangements of which you have been advised by the Company prior
to the time of execution of such Pricing Agreement, which advice
is confirmed in writing to you by the end of the business day
following the date of such Pricing Agreement; and
(b) To pay or cause to be paid all expenses, preapproved
by the Company, incident to the performance of its obligations
hereunder and under any Pricing Agreement, including the cost of
all qualifications of the Securities under state securities laws
(including reasonable fees of counsel to the Underwriters in
connection with such qualifications and in connection with legal
investment surveys) and the cost of printing this Agreement, any
Pricing Agreement, and any blue sky and legal investment
memoranda.
8. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such
Designated Securities shall be subject, in their discretion, to
the condition that all representations and warranties and other
statements of the Company or Sears herein are, at and as of the
Time of Delivery for such Designated Securities, true and
correct, the condition that each of the Company and Sears shall
have performed all of its obligations hereunder theretofore to be
performed, and the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your
reasonable satisfaction.
(b) All corporate proceedings and related matters in
connection with the organization of the Company, the validity of
the Indenture and the registration, authorization, issue, sale
and delivery of the Designated Securities shall have been
satisfactory to counsel to the Underwriters, and such counsel
shall have been furnished with such papers and information as
they may reasonably have requested to enable them to pass upon
the matters referred to in this subdivision (b).
(c) Counsel to the Company and Sears shall have furnished
to you such counsel's written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance
satisfactory to you in your reasonable judgment, to the effect
that:
(i) Each of the Company and Sears has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its respective state of incorporation;
(ii) All of the outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and
are fully paid and non-assessable. The authorized capital stock
of the Company consists of 500,000 shares of common stock, par
value $100.00 per share, all of the issued and outstanding shares
of which are owned by Sears, Xxxxxxx and Co. free and clear of
any security interests, claims, liens or encumbrances, and the
authorized capital stock of Sears is as set forth or incorporated
by reference in the Registration Statement;
(iii) SRAC is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly authorized,
executed and delivered on the part of the Company and Sears;
(v) The issue and sale of the Designated Securities
and the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, this Agreement and the
Pricing Agreement with respect to the Designated Securities will
not (a) conflict with or result in any breach which would
constitute a material default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the Company material to the Company,
pursuant to the terms of any indenture, loan agreement or other
agreement or instrument for borrowed money known to such counsel
to which the Company is a party or by which the Company may be
bound or to which any of the property or assets of the Company
material to the Company is subject, (b) result in any violation
of the provisions of the Certificate of Incorporation, as amended
or the By-Laws of the Company or (c) to the best of the knowledge
of such counsel, result in any material violation of any statute
or any order, rule or regulation applicable to the Company of any
court or any federal, state or other regulatory authority or
other governmental body having jurisdiction over the Company,
other than the securities laws of the various states or other
jurisdictions which are applicable to the issue and sale of the
Designated Securities, as to which such counsel need express no
opinion; and, to the best knowledge of such counsel, no consent,
approval, authorization or other order of, or filing with, any
court or any such regulatory authority or other governmental body
is required for the issue and sale of the Designated Securities
except as has been obtained or effected under the Act, the
Exchange Act, the Trust Indenture Act and securities laws of the
various states or other jurisdictions which are applicable to the
issue and sale of the Designated Securities;
(vi) The Fixed Charge Coverage and Ownership
Agreement and the Extension Agreement have been duly authorized,
executed and delivered by the parties thereto and are valid and
binding instruments of the parties thereto enforceable in
accordance with their terms except as the same may be limited by
insolvency, bankruptcy, reorganization, moratorium, liquidation,
fraudulent conveyance and transfer or other similar laws relating
to or affecting the enforcement of creditors' rights generally
and by general equity principles, including, without limitation,
concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered
in a proceeding in equity or at law);
(vii) The Indenture has been duly authorized,
executed and delivered on the part of the Company and, as to the
Company, is a valid, binding and enforceable instrument in
accordance with its terms except as the foregoing may be limited
by insolvency, bankruptcy, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other similar
laws relating to or affecting the enforcement of creditors'
rights generally or by general equity principles, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability
is considered in a proceeding in equity or at law) and has been
qualified under the Trust Indenture Act; the Designated
Securities have been duly authorized and (assuming their due
authentication by the Trustee) have been duly executed, issued
and delivered on the part of the Company and constitute valid and
binding obligations of the Company in accordance with their
terms, entitled to the benefits of the Indenture, except as the
same may be limited by insolvency, bankruptcy, reorganization,
moratorium, liquidation, fraudulent conveyance and transfer or
other similar laws relating to or affecting the enforcement of
creditors' rights generally or by general equity principles,
including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(viii) Such counsel does not know of any pending
legal or governmental proceedings required to be described in the
Prospectus as amended or supplemented (including documents
incorporated by reference therein) which are not described as
required;
(ix) Except for statements in such documents which do
not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 of Regulation C under the Act and
after substituting therefor any statements modifying or
superseding such excluded statements, the documents incorporated
by reference in the Prospectus as amended or supplemented (other
than the financial statements and related schedules, the analyses
of operations and financial condition and other financial,
statistical and accounting data therein, as to which such counsel
need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act, and the rules and regulations
of the Commission thereunder;
(x) Except for statements in such documents which do
not constitute part of the Registration Statement or the
Prospectus pursuant to Rule 412 of Regulation C under the Act and
after substituting therefor any statements modifying or
superseding such excluded statements, the Registration Statement
and the Prospectus as amended or supplemented (excluding the
documents incorporated by reference therein) (other than the
financial statements and related schedules, the analyses of
operations and financial condition and other financial,
statistical and accounting data therein as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; the answers in the Registration Statement
to Items 9 and 10 (insofar as it relates to such counsel) of Form
S-3 are to the best of such counsel's knowledge accurate
statements or summaries of the matters therein set forth and
fairly present the information called for with respect to those
matters by the Act and the rules and regulations thereunder; and
(xi) Such counsel does not know of any contract or
other document to which the Company or Sears or any subsidiary
thereof is a party required to be filed as an exhibit to the
Registration Statement or required to be incorporated by
reference into the Prospectus as amended or supplemented or
required to be described in the Prospectus as amended or
supplemented which has not been so filed, incorporated by
reference or described.
In rendering such opinion, such counsel may rely to the
extent such counsel deems appropriate upon certificates of
officers or other executives of the Company, Sears and its
business groups and subsidiaries and of public officials as to
factual matters and upon opinions of other counsel. Such counsel
shall also state that: (a) nothing has come to such counsel's
attention which has caused such counsel to believe that any of
the documents referred to in subdivision (ix) above (other than
the financial statements and related schedules, the analyses of
operations and financial condition and other financial,
statistical and accounting data therein, as to which such counsel
need express no belief), in each case after excluding any
statement in any such document which does not constitute part of
the Registration Statement or the Prospectus as amended or
supplemented pursuant to Rule 412 of Regulation C under the Act
and after substituting therefor any statement modifying or
superseding such excluded statement, when it became effective or
was filed, as the case may be, contained, in the case of
documents which became effective under the Act, an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and, in the case of documents which were
filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
and (b) nothing has come to such counsel's attention which has
caused such counsel to believe that the Registration Statement or
the Prospectus as amended or supplemented (other than the
financial statements, the analyses of operations and financial
condition and other financial, statistical and accounting data
therein, as to which such counsel need express no belief)
contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(d) At the Time of Delivery for such Designated Securities,
Deloitte & Touche LLP, certified auditors, shall have furnished
you a letter or letters, dated the date of delivery thereof in
form and substance satisfactory to you as to such matters as you
may reasonably request.
(e) (i) The Company shall not have sustained, since the
date of the latest audited financial statements included or
incorporated by reference in the Prospectus as amended or
supplemented, any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree and (ii) since the respective
dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any material
change in the capital stock accounts or long-term debt of the
Company or any material adverse change in the general affairs,
financial position, stockholders' equity or results of operations
of the Company, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which in any
such case described in clause (i) or (ii), in your judgment makes
it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities on the terms
and in the manner contemplated in the Prospectus as amended or
supplemented.
(f) Subsequent to the date of the Pricing Agreement relating
to the Designated Securities, no downgrading shall have occurred
in the rating accorded to the Company's or Sears senior debt
securities by Xxxxx'x Investors Service, Inc. or Standard &
Poor's; provided, however, that this subdivision (f) shall not
apply to any such rating agency which shall have notified you of
the rating of the Designated Securities prior to the execution of
the Pricing Agreement.
(g) Subsequent to the date of the Pricing Agreement relating
to the Designated Securities none of (i) the United States shall
have become engaged in the outbreak or escalation of hostilities
involving the United States or there has been a declaration by the
United States of a national emergency or a declaration of war,
(ii) a banking moratorium shall have been declared by either
Federal or New York State authorities, or (iii) trading in
securities generally on the New York Stock Exchange shall have
been suspended nor limited or minimum prices shall have been
established by such Exchange, any of which events, in your
judgment, renders it inadvisable to proceed with the public
offering or the delivery of the Designated Securities.
(h) Each of the Company and Sears shall have furnished or
caused to be furnished to you at the Time of Delivery for the
Designated Securities certificates satisfactory to you as to the
accuracy at and as of such Time of Delivery of the
representations, warranties and agreements of the Company and
Sears, respectively, herein and as to the performance by each of
the Company and Sears of all its obligations hereunder to be
performed at or prior to such Time of Delivery and the Company
shall have also furnished you similar certificates satisfactory to
you as to the matters set forth in subdivision (a) of this Section
8.
(i) Counsel to the Underwriters shall have furnished you
with such counsel's written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory
to you in your reasonable judgment, to the effect that:
(i) The Company is validly existing as a corporation in
good standing under the laws of the State of Delaware.
(ii) Sears is validly existing as a corporation in good
standing under the laws of the State of New York.
(iii) The execution and delivery of the Indenture have been
duly authorized by all necessary corporate action of the Company,
and the Indenture has been duly executed and delivered by the
Company, and qualified under the Trust Indenture Act of 1939, as
amended, and is a valid, binding and enforceable agreement of the
Company.
(iv) The execution and delivery of the Designated Securities
have been duly authorized by all necessary corporate action of the
Company, and the Designated Securities have been duly executed and
delivered by the Company and are the valid, binding and
enforceable obligations of the Company, entitled to the benefits
of the Indenture.
(v) The execution and delivery of this Underwriting
Agreement have been duly authorized by all necessary corporate
action of the Company and Sears, and this Underwriting Agreement
has been duly executed and delivered by the Company and Sears.
(vi) The execution and delivery of the Pricing Agreement
with respect to the Designated Securities have been duly
authorized by all necessary corporate action of the Company and
Sears, and the Pricing Agreement has been duly executed and
delivered by the Company and Sears.
9. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, any prospectus relating to
the Securities or the Prospectus as amended or supplemented, or
any amendment or supplement thereto furnished by the Company or
Sears, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or (in the case of the Registration Statement or the
Prospectus as amended or supplemented, or any amendment or
supplement thereto) necessary to make the statements therein not
misleading or (in the case of any Preliminary Prospectus)
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and will
reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim; provided,
however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented or any such amendment or
supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter of
Designated Securities through you expressly for use in the
Prospectus as amended or supplemented relating to such Securities;
and provided, further, that the Company shall not be liable to any
Underwriter or any person controlling such Underwriter under the
indemnity agreement in this subdivision (a) with respect to the
Preliminary Prospectus or the Prospectus or the Prospectus as
amended or supplemented, as the case may be, to the extent that
any such loss, claim, damage or liability of such Underwriter or
controlling person results solely from the fact that such
Underwriter sold Designated Securities to a person to whom there
was not sent or given, at or prior to the written confirmation of
such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) if
the Company has previously furnished copies thereof to such
Underwriter.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, or any
amendment or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact
required to be stated therein or (in the case of the Registration
Statement or the Prospectus or the Prospectus as amended or
supplemented, or any amendment or supplement thereto) necessary to
make the statements therein not misleading or (in the case of any
Preliminary Prospectus) necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Prospectus as
amended or supplemented, or any such amendment or supplement in
reliance upon and in conformity with written information furnished
to the Company by such Underwriter through you expressly for use
therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
(c) Within a reasonable period after receipt by an indemnified
party under subdivision (a) or (b) above of notice of the
commencement of any action with respect to which indemnification
is sought under such subdivision or contribution may be sought
under subdivision (d) below, such indemnified party shall notify
the indemnifying party in writing of the commencement thereof. In
case any such action shall be brought against any indemnified
party, the indemnifying party shall be entitled to participate in,
and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs
of investigation.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subdivision (a) or (b)
above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters of
the Designated Securities on the other from the offering of the
Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates and also the
relative fault of the Company and Sears on the one hand and the
Underwriters of the Designated Securities on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and
such Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such
Underwriters, in each case as set forth on the cover page of the
Prospectus as amended or supplemented. The relative fault shall
be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information supplied by the Company or Sears on the one hand or
the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission of the Company or Sears on the
one hand and the Underwriters, directly or through you, on the
other hand. With respect to any Underwriter, such relative fault
shall also be determined by reference to the extent (if any) to
which such losses, claims, damages or liabilities (or actions in
respect thereof) with respect to any Preliminary Prospectus result
from the fact that such Underwriter sold Designated Securities to
a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus
(excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents
incorporated by reference) if the Company has previously furnished
copies thereof to such Underwriter. The Company and the
Underwriters agree that it would not be just and equitable if
contribution pursuant to this subdivision (d) were determined by
per capita allocation among the indemnifying parties (even if the
Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the
equitable considerations referred to above in this subdivision
(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions
in respect thereof) referred to above in this subdivision (d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the applicable
Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of
the Underwriters of Designated Securities in this subdivision (d)
to contribute are several in proportion to their respective
underwriting obligations with respect to such securities and not
joint.
(e) The obligations of the Company under this Section 9 shall
be in addition to any liability which the Company may otherwise
have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of
the Act; and the obligations of the Underwriters under this
Section 9 shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director of the
Company or Sears and to each person, if any, who controls the
Company within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Securities, you may
in your discretion arrange for yourselves or another party or
other parties to purchase such Designated Securities on the terms
contained herein. If within thirty-six hours after such default
by any Underwriter you do not arrange for the purchase of such
Designated Securities, then the Company shall be entitled to a
further period of thirty-six hours within which to procure another
party or other parties to purchase such Designated Securities on
such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the
purchase of such Designated Securities, or the Company notifies
you that it has so arranged for the purchase of such Designated
Securities, you or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period
of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the
Prospectus as amended or supplemented, or in any other documents
or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the
Prospectus which may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person
had originally been a party to the Pricing Agreement with respect
to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by you and the Company as provided in subdivision
(a) above, the aggregate principal amount of such Designated
Securities which remains unpurchased does not exceed one-eleventh
of the aggregate principal amount of the Designated Securities,
then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of
Designated Securities which such Underwriter agreed to purchase
under the Pricing Agreement relating to such Designated Securities
and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Designated Securities which such Underwriter agreed to purchase
under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter
or Underwriters by you and the Company as provided in subdivision
(a) above, the aggregate principal amount of Designated Securities
which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of the Designated Securities, as referred to in
subdivision (b) above, or if the Company shall not exercise the
right described in subdivision (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting
Underwriter or Underwriters, then the Pricing Agreement relating
to such Designated Securities shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and
the Underwriters as provided in Section 7(b) hereof and the
indemnity and contribution agreements in Section 9 hereof; but
nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities, agreements, representations,
warranties and other statements of the Company, Sears and the
several Underwriters, as set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement, shall
remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter,
the Company, Sears or any officer or director or controlling
person of the Company or Sears, and shall survive delivery of and
payment for the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subdivisions (a) and (e) of Section 9
hereof, the representations and warranties in subdivisions (b) and
(c) of Section 2 hereof and any representation or warranty as to
the accuracy of the Registration Statement or the Prospectus as
amended or supplemented contained in any certificate furnished by
the Company or Sears pursuant to subdivision (h) of Section 8
hereof, insofar as they may constitute a basis for indemnification
for liabilities (other than payment by the Company of expenses
incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Act, shall not extend to the extent
of any interest therein of an Underwriter or a controlling person
of an Underwriter if a director, officer or controlling person of
the Company or Sears when the Registration Statement becomes
effective or a person who, with his consent, is named in the
Registration Statement as being about to become a director of the
Company or Sears, is a controlling person of such Underwriter,
except in each case to the extent that an interest of such
character shall have been determined by a court of appropriate
jurisdiction as not against public policy as expressed in the Act.
Unless in the opinion of counsel for the Company or Sears the
matter has been settled by controlling precedent, the Company or
Sears will, if a claim for such indemnification is asserted,
submit to a court of appropriate jurisdiction the question whether
such interest is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
12. If any Pricing Agreement shall be terminated pursuant to
Section 10 hereof, the Company shall not then be under any
liability to any Underwriter with respect to the Designated
Securities covered by such Pricing Agreement except as provided in
Section 7(b) and Section 9 hereof; but, if for any other reason
Designated Securities are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for
the purchase, sale and delivery of such Designated Securities, but
the Company shall then be under no further liability to any
Underwriter with respect to such Designated Securities except as
provided in Section 7(b) and Section 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each
of the Underwriters of Designated Securities, and the parties
hereto shall be entitled to act and rely upon any statement,
request, notice or agreement on behalf of any Underwriter made or
given by you.
All statements, requests, notices and agreements hereunder shall
be in writing or by telegram if promptly confirmed in writing and
if to the Underwriters shall be sufficient in all respects, if
delivered or sent by registered mail to you as the Representatives
at 00 Xxxx Xxxxxx, Xxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Desk; and if to the Company shall be
sufficient in all respects if delivered or sent by registered mail
to the Company at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. XxXxxxxx, Secretary; and if to Sears shall
be sufficient in all respects if delivered or sent by registered
mail to Sears at 0000 Xxxxxxx Xxxx, Xxxxxxx Xxxxxxx, Xxxxxxxx
00000, Attention: Xxxxxxxxx X. Xxxxx, Executive Vice President,
General Counsel and Secretary.
14. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the
Company, Sears and, to the extent provided in Section 9 and
Section 11 hereof, the officers and directors of the Company and
Sears and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely
of such purchase.
15. Time shall be of the essence of each Pricing Agreement.
16. This Agreement and each Pricing Agreement shall be governed
by, and construed in accordance with, the internal laws of the
State of New York.
17. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number
of counterparts, each of which shall be deemed to be an original,
but all such respective counterparts shall together constitute one
and the same instrument.
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Very truly yours,
SEARS XXXXXXX ACCEPTANCE CORP.
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Accepted as of the date hereof:
X.X. Xxxxxx Securities Inc.
By: /s/ Xxxxxxx Xxxxx Xxxx
Name: Xxxxxxx Xxxxx Xxxx
Title:
ANNEX I
PRICING AGREEMENT
X.X. XXXXXX SECURITIES INC.
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
00 Xxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
__________, 1999
Dear Sirs:
Sears Xxxxxxx Acceptance Corp., a Delaware corporation (the
"Company"), proposes subject to the terms and conditions stated
herein and in the Underwriting Agreement, dated _____________,
1999 (the "Underwriting Agreement"), executed between the Company
and Sears, Xxxxxxx and Co. ("Sears"), on the one hand, and X.X.
Xxxxxx Securities Inc., as representatives of and on behalf of the
several Underwriters named in Schedule I hereto, on the other
hand, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule
II hereto (the "Designated Securities"). Each of the provisions
of the Underwriting Agreement is incorporated herein by reference
in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and
warranties set forth therein shall be deemed to have been made at
and, except where otherwise specified, as of the date of this
Pricing Agreement, except that each representation and warranty
with respect to the Prospectus in Sections 2 and 3 of the
Underwriting Agreement shall be deemed to be a representation and
warranty as of the date of the Underwriting Agreement in relation
to the Prospectus (as therein defined) and also a representation
and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are
used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated
Securities, in the form heretofore delivered to you is now
proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the
Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to
purchase from the Company, at the time and place and at a purchase
price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto, less the principal
amount of Designated Securities covered by Delayed Delivery
Contracts, if any, as may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon acceptance
hereof by you on behalf of each of the Underwriters, this letter
and such acceptance hereof, including the provisions of the
Underwriting Agreement incorporated herein by reference, shall
constitute a binding agreement between the Company, Sears and each
of the Underwriters. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters,
the form of which shall be supplied to the Company upon request.
You represent that you are authorized on behalf of yourselves and
on behalf of each of the other Underwriters named in Schedule I
hereto to enter into this Agreement.
Very truly yours,
SEARS XXXXXXX ACCEPTANCE CORP.
By: ________________________________
SEARS, XXXXXXX AND CO.
By: ________________________________
Accepted as of the date hereof:
________________________________
X.X. Xxxxxx Securities Inc.
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
SCHEDULE I
Principal amount of Designated
Underwriter Securities to be purchased
X.X. Xxxxxx Securities Inc. $
________________________
TOTAL $ ________________________
SCHEDULE II
Title of Designated Securities:
___% Notes due ______________
Aggregate principal amount:
$____________
Denominations:
US$1,000 (see "Other Terms")
Price to Public:
_____% of the principal amount of
the Designated Securities, plus accrued
interest from ______________ to the Time of
Delivery
Purchase Price by Underwriters:
_____% of the principal amount of the
Designated Securities, plus accrued
interest from ______________ to the Time of
Delivery
Indenture:
Indenture, dated as of May 15, 1995,between the
Company and The Chase Manhattan Bank, N.A., as Trustee
Form of Designated Securities:
Global form only
Maturity:
______________
Interest Rate:
____%
Interest Payment dates:
_________ and __________
Redemption Provisions:
Incorporated by reference to the attached Form of Note
Sinking Fund Provisions:
None
Time of Delivery:
_______ A.M., Chicago time, ______________
Funds in which payment by Underwriters to Company to be made:
Immediately available funds
Method of Payment:
Wire transfer to The Chase Manhattan Bank, ABA No. 021-000-
021, for the Account of Sears Xxxxxxx Acceptance Corp.,
Account No. 910-0000000
Closing Location:
Chicago, Illinois
Delayed Delivery:
None
Counsel:
To the Company and Sears:
Xxxxxx X. Xxxx, Vice President-Law, Sears, Xxxxxxx and Co.
Xxxxxx & Xxxxxxx
To the Underwriters:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
ANNEX II
DELAYED DELIVERY CONTRACT
SEARS XXXXXXX ACCEPTANCE CORP.,
c/o
Attention:
[Date]
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Sears Xxxxxxx
Acceptance Corp. (hereinafter called the "Company"), and the
Company agrees to sell to the undersigned,
$
principal amount of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the
Company's Prospectus dated _______, ____ as amended or
supplemented, receipt of a copy of which is hereby acknowledged,
at a purchase price of % of the principal amount thereof, plus
accrued interest from the date from which interest accrues as set
forth below, and on the further terms and conditions set forth in
this contract.
[The undersigned will purchase the Designated Securities from
the Company on _______, ____ (the "Delivery Date") and interest on
the Designated Securities so purchased will accrue from
__________, ____.]
[The undersigned will purchase the Designated Securities from
the Company on the delivery date or dates and in the principal
amount or amounts set forth below:
Each such date on which Designated Securities are to be
purchased hereunder is hereinafter referred to as a "Delivery
Date".]
Payment for the Designated Securities which the undersigned
has agreed to purchase on [the] [each] Delivery Date shall be
made to the Company or its order by [certified or official bank
check] [in New York Clearing House funds at the office of Sears
Xxxxxxx Acceptance Corp., Greenville, Delaware] [or] [by wire
transfer, in immediately available funds, to a bank account
specified by the Company], on [the] [such] Delivery Date upon
delivery to the undersigned of the Designated Securities then to
be purchased by the undersigned in definitive fully registered
form and in such denominations and registered in such names as
the undersigned may designate by written or telegraphic
communication addressed to the Company not less than five full
business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and
make payment for Designated Securities on [the] [each] Delivery
Date shall be subject to the conditions that (a) the purchase of
Designated Securities to be made by the undersigned shall not on
[the] [such] Delivery Date be prohibited under the laws of the
jurisdiction to which the undersigned is subject and (b) the
Company, on or before __________, ____, shall have sold to the
several Underwriters, pursuant to the Pricing Agreement dated
___________, ____ with the Company and Sears, Xxxxxxx and Co.
("Sears"), an aggregate principal amount of Designated Securities
equal to $ , minus the aggregate principal amount of
Designated Securities covered by this contract and other
contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Designated
Securities shall not be affected by the failure of any purchaser
to take delivery of and make payment for Designated Securities
pursuant to other contracts similar to this contract.
Promptly after completion of the sale to the Underwriters the
Company will mail or deliver to the undersigned at its address set
forth below notice to such effect, accompanied by a copy of the
Opinion of Counsel for the Company and Sears delivered to the
Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date
of this contract, the undersigned is not prohibited from
purchasing the Designated Securities hereby agreed to be purchased
by it under the laws of the jurisdiction to which the undersigned
is subject.
This contract will inure to the benefit of and be binding
upon the parties hereto and their respective successors, but will
not be assignable by either party hereto without written consent
of the other.
This contract may be executed by either of the parties hereto
in any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together constitute
one and the same instrument.
This contract shall be governed by, and construed in
accordance with, the internal laws of the State of New York.
It is understood that the acceptance by the Company of any
Delayed Delivery Contract (including this contract) is in the
Company's sole discretion and that, without limiting the
foregoing, acceptances of such contracts need not be on a first-
come, first-served basis. If this contract is acceptable to the
Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This
will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered by the
Company.
Yours very truly,
(Signature)
(Name and Title)
(Address)
Accepted, [Date]
in Greenville, Delaware
SEARS XXXXXXX ACCEPTANCE CORP.
By
(Title)