EXHIBIT 4(f)
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 3, 2003
(this "First Supplemental Indenture"), is by and among SEARS XXXXXXX
ACCEPTANCE CORP., a corporation organized and existing under the laws
of the State of Delaware (the "Company"), SEARS, XXXXXXX AND CO., a
corporation organized and existing under the laws of the State of New
York ("Sears") and JPMORGAN CHASE BANK (successor to THE CHASE MANHATTAN
BANK, N.A.), a state banking corporation (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee have entered into an Indenture,
dated as of May 15, 1995 (the "Indenture"). Capitalized terms used
herein have the meanings assigned to them in the Indenture unless otherwise
indicated.
In Section 11.1 of Article XI of the Indenture it is provided that,
among other things, the Company, when authorized by resolution of its Board,
and the Trustee, subject to the conditions and restrictions in the Indenture
contained, may from time to time and at any time enter into an indenture or
indentures supplemental thereto for the following purposes among others: to
add to the covenants and agreements of the Company for the benefit of the
Holders of all or any series of Securities.
The Company created and issued under and in accordance with the
provisions of the Indenture, the Securities identified on Annex A hereto
(collectively, the "Notes").
Sears now desires to guarantee payment of principal, interest and
premium (if any) on the Notes irrevocably and unconditionally and to enter
into this First Supplemental Indenture to evidence this guarantee of the
Notes.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
1. The following shall be added as additional definitions in Section 1.1
of Article I of the Indenture:
Benefitted Party
The term "Benefitted Party" shall have the meaning specified in Section 14.13.
First Supplemental Indenture
The term "First Supplemental Indenture" shall mean the First Supplemental
Indenture, dated November 3, 2003, by and among the Company, Sears and the
Trustee.
Notes
The term "Notes" shall have the meaning specified in the Preliminary
Statement of the First Supplemental Indenture and shall include all
Securities outstanding under the Indenture on the date hereof and any
Security issued upon registration of transfer or exchange of any such
Security or upon replacement of a lost, stolen, mutilated or destroyed
such Security, but shall not mean any Securities authorized and issued
after the date hereof.
Guarantee
The term "Guarantee" shall mean the guarantee of Sears set forth in
Section 14.13.
2. The following shall be added as new Section 14.13 of Article XIV
of the Indenture:
Section 14.13. Guarantee. Subject to the provisions of this Indenture
and any supplemental indenture hereto, Sears hereby irrevocably and
unconditionally guarantees to each Holder of a Note outstanding on
the date of the First Supplemental Indenture or any Note
thereafter authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, that: (i) the principal
of (and premium, if any) and interest on the Notes shall be paid in
full when due, whether at maturity, by acceleration or otherwise,
and (ii) in case of any extension of time in payment or renewal
of any Notes or pursuant to any cure period provisions of the
Notes or the Indenture, they shall be paid in full when due in
accordance with the terms of the extension or renewal or cure
period. Failing payment when due of any amount so guaranteed,
Sears shall be obligated to pay the same. Sears agrees that
this is a guarantee of payment and not a guarantee of collection.
For the avoidance of doubt, the Guarantee does not extend to nor shall
it benefit the Holder of any Security issued under the Indenture
other than the Notes, including any Security authorized and issued
after the date hereof, unless the terms of such Security
specifically make this Guarantee applicable thereto and Sears
consents to such application.
Sears hereby agrees that its obligations with regard
to the Guarantee shall be unconditional, irrespective of
any circumstances which might otherwise constitute a legal or
equitable defense of a guarantor. In the event of a default
in the payment of principal, interest or premium (if any) the
Trustee or any Holder of Notes may seek to enforce the Guarantee
against Sears without first proceeding against the Company.
Sears further, to the extent permitted by law, hereby waives
(a) any defense that may arise by reason of the incapacity,
lack of authority, death or disability of any other person
or the failure of the Trustee, the Holders or the Company
(each a "Benefitted Party") to file or enforce a claim
against the estate (in administration, bankruptcy or any
other proceeding) of any other person, (b) notice of the
existence, creation or incurring of any new or additional
indebtedness or obligation, (c) any defense based upon an
election of remedies by a Benefitted Party, including but
not limited to an election law which provides that the
obligation of a surety must be neither larger in amount
nor in other respects more burdensome than that of the
principal, (d) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under
Federal bankruptcy law, of the application of
11 U.S.C. Section 1111(b)(2) or (e) any defense based on
any borrowing or grant of a security interest under
11 U.S.C. Section 364. Sears hereby covenants that
the Guarantee shall not be discharged except by
complete payment of principal, interest and premium
(if any) in accordance with the provisions contained
in the Notes, the Guarantee, this Indenture and any supplemental
indenture hereto.
If any Holder or the Trustee is required by any
court or otherwise to return to either the Company
or Sears, or any custodian acting in relation to either
the Company or Sears, any amount paid by the Company or
Sears to the Trustee or such Holder, the Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect. Sears agrees that it shall not be entitled to any
right of subrogation in relation to the Holders or the Trustee
in respect of any obligations guaranteed hereby until payment
in full of all obligations guaranteed hereby.
The Guarantee is a continuing guarantee and shall remain
in full force and effect and shall be binding upon Sears
and its successors and assigns until full and final payment
of all of principal, interest and premium (if any) under
the Notes and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders
and, in the event of any transfer or assignment of rights
by any Holder or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and
be vested in such transferee or assignee, all subject to the
terms and conditions hereof.
Sears acknowledges that it will receive direct and
indirect benefits from the financing arrangements
contemplated by this First Supplemental Indenture.
Sears, and by its acceptance hereof, each beneficiary
hereof, hereby confirms that it is its intention that the
Guarantee not constitute a fraudulent transfer or conveyance
for purposes of any Federal bankruptcy law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar Federal, state or foreign law to the extent
applicable to the Guarantee. To effectuate the foregoing
intention, each such person hereby irrevocably agrees that
the obligation of Sears under the Guarantee shall be
limited to the maximum amount as will, after giving effect
to such maximum amount and all other (contingent or otherwise)
liabilities of Sears that are relevant under such laws,
result in the obligations of Sears in respect of such
maximum amount not constituting a fraudulent transfer or
conveyance.
3. Effect of First Supplemental Indenture
Sears hereby agrees that by virtue of its execution and
delivery of this First Supplemental Indenture, it shall be
deemed to have signed on each Note issued under the Indenture
the notation of the Guarantee and accordingly, the Guarantee
shall be deemed to be a part of each Note.
4. Miscellaneous
Ratification of Indenture; First Supplemental Indenture;
Part of Indenture. Except as expressly amended hereby,
the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall
remain in full force and effect. This First Supplemental
Indenture shall form a part of the Indenture for all purposes,
and every Holder of a Note heretofore or hereafter
authenticated and delivered shall be bound hereby.
Governing Law. This First Supplemental Indenture shall
be governed in accordance with the internal laws of the
State of Delaware.
Trustee Makes No Representations. The Trustee makes no
representation as to the validity or sufficiency of this
First Supplemental Indenture.
Counterparts. This First Supplemental Indenture
may be simultaneously executed in any number
of counterparts, each of which when so executed and
delivered shall be an original; but such counterparts
shall together constitute but one and the same instrument
Effect of Headings. All descriptive headings of this First
Supplemental Indenture are inserted for convenience only
and shall not control or affect the meaning or construction of
any of the provisions hereof.
IN WITNESS HEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and the corporate
seal of the Trustee to be hereunto affixed and attested, all
as of the day and year first above written.
SEARS XXXXXXX ACCEPTANCE CORP.
By: /s/ Xxxxx X. Xxxxx
---------------------
Name: Xxxxx X. Xxxxx
Title: President
Attest:
/s/ Xxxxxxx X. Xxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxx X. Xxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Chief Financial Officer
Attest:
/s/ Xxxxx Xxxxx-Xxxx
---------------------
Name: Xxxxx Xxxxx-Xxxx
Title: Secretary
JPMORGAN CHASE BANK,
As Trustee
By: /s/ Xxxxxxxx Xxxxxxxx
------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Trust Officer
Attest:
/s/Xxxxxx Xxxxxx
---------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
ANNEX A
MATURITY
SERIES DATE COUPON CUSIP# PRINCIPAL
---------------- -------- ------ ------ --------------
Discrete 9/15/05 6.750% 000000XX0 $ 250,000,000
Discrete 1/17/06 6.125% 000000XX0 $ 250,000,000
Discrete 11/15/06 6.700% 000000XX0 $ 300,000,000
Discrete 6/15/07 7.000% 000000XX0 $ 500,000,000
Discrete 9/18/07 6.700% 000000XX0 $ 150,000,000
Discrete 10/15/27 7.500% 000000XX0 $ 250,000,000
Discrete 10/15/17 6.875% 000000XX0 $ 300,000,000
Discrete 1/18/28 6.750% 000000XX0 $ 200,000,000
Discrete 12/1/28 6.500% 000000XX0 $ 300,000,000
Discrete 5/1/09 6.250% 000000XX0 $ 750,000,000
Discrete 2/1/11 7.000% 000000XX0 $ 800,000,000
Discrete 8/15/11 6.750% 000000XX0 $ 750,000,000
Discrete 2/1/11 7.000% 000000XX0 $ 200,000,000
Discrete 4/16/12 6.700% 000000XX0 $ 600,000,000
Discrete 6/1/32 7.000% 000000XX0 $ 1,000,000,000
Medium Term Notes Series I 11/15/05 6.130% 00000XXX0 $ 575,000
Medium Term Notes Series I 11/15/05 6.150% 00000XXX0 $ 4,402,000
Medium Term Notes Series I 11/15/05 6.110% 00000XXX0 $ 100,000
Medium Term Notes Series I 12/12/05 6.330% 00000XXX0 $ 1,250,000
Medium Term Notes Series I 12/13/05 6.380% 00000XXX0 $ 5,000,000
Medium Term Notes Series I 1/3/06 6.360% 00000XXX0 $ 4,000,000
Medium Term Notes Series I 1/9/06 6.300% 00000XXX0 $ 5,000,000
Medium Term Notes Series I 1/9/06 6.310% 00000XXX0 $ 1,000,000
Medium Term Notes Series III 11/4/03 6.700% 00000XXX0 $ 2,250,000
Medium Term Notes Series III 11/4/03 6.690% 00000XXX0 $ 10,000,000
Medium Term Notes Series III 11/5/03 6.720% 00000XXX0 $ 30,000,000
Medium Term Notes Series III 11/5/03 6.710% 00000XXX0 $ 27,000,000
Medium Term Notes Series III 11/5/03 6.720% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 11/6/03 6.680% 00000XXX0 $ 1,000,000
Medium Term Notes Series III 11/20/03 6.560% 00000XXX0 $ 155,000,000
Medium Term Notes Series III 11/20/03 6.580% 00000XXX0 $ 2,000,000
Medium Term Notes Series III 12/15/03 7.130% 00000XXX0 $ 32,000,000
Medium Term Notes Series III 10/10/06 7.060% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 5/9/07 7.200% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 5/21/07 7.150% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 6/4/04 7.120% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 6/4/04 7.110% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 6/4/04 7.100% 00000XXX0 $ 1,500,000
Medium Term Notes Series III 6/4/04 7.100% 00000XXX0 $ 5,000,000
Medium Term Notes Series III 6/17/04 6.930% 00000XXX0 $ 10,000,000
Medium Term Notes Series III 6/17/04 6.940% 00000XXX0 $ 2,000,000
Medium Term Notes Series III 6/17/04 6.950% 00000XXX0 $ 22,000,000
Medium Term Notes Series III 6/17/04 6.920% 00000XXX0 $ 10,000,000
Medium Term Notes Series III 6/17/04 6.950% 00000XXX0 $ 4,000,000
Medium Term Notes Series III 6/17/04 6.920% 00000XXX0 $ 25,000,000
Medium Term Notes Series III 6/17/04 6.930% 00000XXX0 $ 8,000,000
Medium Term Notes Series III 6/19/07 7.040% 00000XXX0 $ 10,000,000
Medium Term Notes Series III 6/17/04 6.940% 81240QGQ8 $ 1,000,000
Medium Term Notes Series III 6/17/04 6.920% 00000XXX0 $ 15,000,000
Medium Term Notes Series III 6/24/04 6.850% 00000XXX0 $ 13,700,000
Medium Term Notes Series III 6/24/04 6.860% 00000XXX0 $ 1,000,000
Medium Term Notes Series IV 8/13/07 6.470% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 9/22/04 6.600% 00000XXX0 $ 3,500,000
Medium Term Notes Series IV 10/18/04 6.270% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 11/5/07 6.600% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 11/22/04 6.375% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 12/6/04 6.300% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 11/29/04 6.530% 00000XXX0 $ 12,000,000
Medium Term Notes Series IV 12/5/07 6.560% 00000XXX0 $ 7,000,000
Medium Term Notes Series IV 12/5/07 6.560% 00000XXX0 $ 4,000,000
Medium Term Notes Series IV 12/18/07 6.340% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 1/18/05 6.000% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 2/7/05 6.000% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 2/25/05 6.100% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 2/18/04 6.060% 00000XXX0 $ 2,600,000
Medium Term Notes Series IV 2/24/04 6.100% 00000XXX0 $ 10,200,000
Medium Term Notes Series IV 2/24/04 6.100% 00000XXX0 $ 10,000,000
Medium Term Notes Series IV 2/24/04 6.120% 00000XXX0 $ 10,000,000
Medium Term Notes Series IV 2/24/04 6.120% 00000XXX0 $ 10,000,000
Medium Term Notes Series IV 3/18/08 6.300% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 4/8/08 6.280% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 4/17/09 6.490% 00000XXX0 $ 15,000,000
Medium Term Notes Series IV 5/1/08 6.240% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 5/29/08 6.300% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 5/18/12 6.635% 00000XXX0 $ 10,000,000
Medium Term Notes Series IV 6/2/08 6.250% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 6/19/08 6.190% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 7/14/08 6.170% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 7/15/08 6.200% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 7/21/08 6.100% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 8/9/10 6.200% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 8/15/13 6.510% 00000XXX0 $ 15,000,000
Medium Term Notes Series IV 8/15/08 6.125% 00000XXX0 $ 5,000,000
Medium Term Notes Series IV 9/10/08 6.100% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 12/15/03 5.530% 00000XXX0 $ 10,000,000
Medium Term Notes Series V 11/20/08 6.000% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 11/24/08 6.000% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 12/14/05 5.660% 00000XXX0 $ 10,000,000
Medium Term Notes Series V 1/20/09 5.750% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 2/12/09 5.700% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 3/5/09 5.875% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 3/16/09 6.125% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 3/30/09 6.050% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 4/15/09 6.000% 00000XXX0 $ 5,000,000
Medium Term Notes Series V 2/3/06 0.000% 00000XXX0 $ 25,000,000
Medium Term Notes Series V 10/13/04 Variable 00000XXX0 $ 100,000,000
Medium Term Notes Series V 9/22/04 4.500% 00000XXX0 $ 15,000,000
Retail 7/15/42 7.000% 812404408 $ 250,000,000
