Exhibit 1(a)
UNDERWRITING AGREEMENT
, 199
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 4 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 outstanding obligations of the
Company in accordance with their terms, except as the same may
be limited by insolvency, bankruptcy, reorganization, or other
laws relating to or affecting the enforcement of creditors'
rights or by general equity principles, 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, 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 Underwriters' Securities, the several Underwriters propose
to offer the Underwriters' Securities for sale upon the terms
and conditions set forth in the Prospectus as amended or
supplemented.
The principal amount of Contract Securities to be deducted from
the principal amount of Designated Securities to be purchased by
each Underwriter as set forth in Schedule I to the Pricing
Agreement applicable to such Designated Securities shall be, in
each case, the principal amount of Contract Securities which the
Company has been advised by you have been attributed to such
Underwriter, provided that, if the Company has not been so
advised, the amount of Contract Securities to be so deducted
shall be, in each case, that proportion of Contract Securities
which the principal amount of Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears
to the total principal amount of the Designated Securities
(rounded as you may determine to the nearest $1,000 principal
amount). The total principal amount of Underwriters' Securities
to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the total principal amount of Designated
Securities set forth in Schedule I to such Pricing Agreement
less the principal amount of the Contract Securities. The
Company will deliver to you not later than 3:30 p.m., New York
time, on the third business day preceding the Time of Delivery
specified in the applicable Pricing Agreement (or such other
time and date as you and the Company may agree upon in writing)
a written notice setting forth the principal amount of Contract
Securities.
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.
5. Underwriters' Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in
definitive form to the extent practicable, and in such
authorized denominations and registered in such names as you may
request upon at least two business days prior notice to the
Company, 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, earnings 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) 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., 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 material
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 Act, the Exchange
Act, the Trust Indenture Act and the rules and regulations
pursuant to each such act, and other than the securities laws of
the various states or other jurisdictions which are applicable
to the issue and sale of the Designated Securities; 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 may be required 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 has
been duly authorized, executed and delivered by the parties
thereto and is a valid and binding instrument in accordance with
its terms except as the same may be limited by insolvency,
bankruptcy, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
equity principles;
(vii) The Indenture has been duly authorized, executed and
delivered on the part of the Company and, as to the Company, is
a valid and binding instrument in accordance with its terms
except as the foregoing may be limited by insolvency,
bankruptcy, reorganization or other laws relating to or
affecting the enforcement of creditors' rights or by general
equity principles, and has been qualified under the Trust
Indenture Act; the Underwriters' 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 or other laws relating to
or affecting the enforcement of creditors' rights or by general
equity principles; the Contract Securities, if any, when
executed, authenticated, issued and delivered pursuant to the
Indenture, will constitute valid and binding obligations of the
Company in accordance with their terms, entitled to the benefits
of the Indenture, except as the foregoing may be limited by
insolvency, bankruptcy, reorganization or other laws relating to
or affecting the enforcement of creditors' rights or by general
equity principles;
(viii) Such counsel does not know of any pending legal or
governmental proceedings required to be described in the
Prospectus as amended or supplemented 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 became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, 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 (viii) above (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), 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 they became effective or were 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 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 Corporation; 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 neither (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, nor (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.
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 Underwriters' 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 Underwriters' Securities of a defaulting
Underwriter or Underwriters by you and the Company as provided
in subdivision (a) above, the aggregate principal amount of such
Underwriters' 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 Underwriters' 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 Underwriters' 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 Underwriters' Securities of a defaulting
Underwriter or Underwriters by you and the Company as provided
in subdivision (a) above, the aggregate principal amount of
Underwriters' 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
Underwriters' 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 Underwriters' 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 or by ,
representing 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
; 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. Xxxx, 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, Attention: Xxxxxxx X. Xxxxx, Senior Vice President and
General Counsel.
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:
Sears, Xxxxxxx and Co.
By:
Accepted as of the date hereof:
On behalf of each of the Underwritiers
ANNEX I
PRICING AGREEMENT
As Representatives of the several
Underwriters named in Schedule I hereto
,199
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
, 199 (the "Underwriting Agreement"), executed between the
Company and Sears, Xxxxxxx and Co. ("Sears"), on the one hand,
and
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.
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:
On behalf of each of the Underwriters
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
_____________
Total . . . . . . . . . . . . . $
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of
the Designated Securities, plus accrued
interest from to the Time of
Delivery [and accrued amortization,
if any, 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 [and accrued amortization,
if any, from to the Time
of Delivery]
Indenture:
Indenture, dated , between
the Company and , as Trustee
Form of Designated Securities:
[Certificated form only][Global form only]
Maturity:1
Interest Rate:*
[ %] [Zero Coupon]
Interest Payment dates:*
[months and dates]
Redemption Provisions:*
[No provision for redemption]
[The Designated Securities may be redeemed,
otherwise than through the sinking fund,
in whole or in part at the option of the
Company, in the amount of $ or an
integral multiple thereof,
[on or after , at the following redemption
prices (expressed in percentages of
principal amount). If [redeemed on or before ,
%, and if] redeemed during the
12-month period beginning ,
Year Redemption Price
and thereafter at 100% of their principal amount, together in
each case with accrued interest to the redemption date.]
[on any interest payment date falling on or after ,
, at the election of the Company, at a redemption price equal
to the principal amount thereof, plus accrued interest to the
date of redemption.]
[Other possible redemption provisions, such as mandatory
redemption upon occurrence of certain events or redemption for
changes in tax law]
[Restriction of refunding]
Sinking Fund Provisions:2
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a
sinking fund to retire $ principal amount of
Designated Securities on in each of the years
through at 100% of their principal amount plus accrued
interest] [, together with (cumulative) (non-cumulative)
redemptions at the option of the Company to retire an additional
$ principal amount of Designated Securities in the years
through at 100% of their principal amount plus
accrued interest].
Time of Delivery:
[ ] A.M., New York time, [ ] ,19
Funds in which payment by Underwriters to Company to be made:
[ ] Clearing House Funds
[ ] Same day funds
Method of Payment:
[Certified or official bank check or checks]
[Wire transfer to ]
Closing Location:
Counsel:
To the Company, [ ]
To Sears, [ ]
To the Underwriters, [ ]
[Other Terms]:3
1 The terms of an attached form of security may be incorporated
by reference.
2 The terms of an attached form of security may be incorporated
by reference.
3 The terms of an attached form of security may be incorporated
by reference.
