UNDERWRITING AGREEMENT
XXXXXXX, XXXXX & CO.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 7, 1995
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"), less the principal amount of Designated
Securities covered by Delayed Delivery Contracts, if any, as provided in
Section 4 hereof and as may be specified in Schedule II to such Pricing
Agreement (with respect to such Pricing Agreement, any Designated
Securities to be covered by Delayed Delivery Contracts being herein
sometimes referred to as "Contract Securities" and the Designated
Securities to be purchased by the Underwriters (after giving effect to
the deduction, if any, for Contract Securities) being herein sometimes
referred to as "Underwriters' 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 whether any of such Designated Securities shall be
covered by Delayed Delivery Contracts (as defined in Section 4 hereof)
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;
(b) The issue and sale of the Securities pursuant to any Pricing
Agreement and under any Delayed Delivery Contract and the compliance by
the Company with all of the provisions of the Securities, the Indenture,
this Agreement and any Delayed Delivery Contract 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; and
(c) In the event any of the Securities are purchased pursuant to
Delayed Delivery Contracts, each of such Delayed Delivery Contracts has
been duly authorized by the Company and, when duly executed and
delivered by the Company and the institutional purchaser named therein,
will constitute a valid and legally binding agreement of the Company
enforceable 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.
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 Company may specify in Schedule II to the Pricing Agreement
applicable to any Designated Securities that the Underwriters are
authorized to solicit offers to purchase Designated Securities from the
Company pursuant to delayed delivery contracts (herein called "Delayed
Delivery Contracts"), substantially in the form of Annex II attached
hereto but with such changes therein as you and the Company may
authorize or approve. If so specified, the Underwriters will endeavor
to make such arrangements, and as compensation therefor the Company will
pay to you, for the accounts of the Underwriters, at the Time of
Delivery (as defined in Section 5 hereof), such commission, if any, as
may be set forth in such Pricing Agreement. Delayed Delivery Contracts,
if any, are to be with institutional investors of the types mentioned
under the subcaption "Delayed Delivery Arrangements" in the Prospectus
and subject to other conditions therein set forth. The Underwriters
will not have any responsibility in respect of the validity or
performance of any Delayed Delivery Contracts.
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.
Concurrently with the delivery of and payment for the
Underwriters' Securities, the Company will deliver to you for the
accounts of the Underwriters payment, by certified or official bank
check or checks or wire transfer, as specified in such Pricing
Agreement, payable to the order of the party designated in the Pricing
Agreement relating to such Securities in the amount of any compensation
payable by the Company to the Underwriters in respect of any Delayed
Delivery Contracts as provided in Section 3 hereof and in the Pricing
Agreement relating to 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 or any Delayed Delivery Contract, 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) In the event any of the Designated Securities are to
be purchased pursuant to Delayed Delivery Contracts, each of such
Delayed Delivery Contracts has been duly authorized, executed and
delivered on the part of the Company and, assuming such Contracts have
been duly executed and delivered by the institutional purchasers named
therein, constitutes a valid and legally binding agreement of the
Company 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;
(vi) 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, each of the Delayed Delivery
Contracts, if any, 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;
(vii) 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;
(viii) 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
and Delayed Delivery Contracts, 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;
(ix) 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;
(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 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;
(xi) 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
(xii) 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 Xxxxxx
Xxxxxxx & Co. Incorporated, 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 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: New Issues, 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. Xxxx, Secretary; and
if to Sears shall be sufficient in all respects if delivered or sent by
registered mail to Sears at Xxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxx Xxxxx, Senior 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: Xxxxx X. Xxxxx
SEARS, XXXXXXX AND CO.
By: Xxxxx X. Xxxxxxx
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
(Xxxxxxx, Sachs & Co.)
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
By: W. Xxxx Xxxxxxxx
Managing Director
X.X. XXXXXX SECURITIES INC.
By: X. Xxxxxx Xxxxxx
XXXXXX XXXXXXX & CO. INCORPORATED
By: Xxxxxx X. Xxxxxxxxxx III
Principal
SALOMON BROTHERS INC
By: Xxxx Xxxxxx Xxxxx
Vice President
ANNEX I
PRICING AGREEMENT
XXXXXXX, SACHS & CO.
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX & CO. INCORPORATED
SALOMON BROTHERS INC
As [Representatives of] the several
Underwriters named in Schedule I hereto
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
,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, 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:
(Xxxxxxx, Sachs & Co.)
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
By:
Managing Director
X.X. XXXXXX SECURITIES INC.
By:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
Principal
SALOMON BROTHERS INC
By:
Vice President
On behalf of each of the Underwriters
SCHEDULE I
Principal
Amount of
Designated
Securities
to
Underwriter be purchased
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Salomon Brothers Inc
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:*
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,
[FN]
* The terms of an attached form of security may be incorporated by
reference.
[/FN]
[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:1
[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
[FN]
1 The terms of an attached form of security may be incorporated by
reference.
[/FN]
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:
Delayed Delivery:
[None] [Underwriters are authorized to solicit Delayed Delivery
Contracts relating to a maximum of $ in aggregate principal
amount of the Designated Securities. Underwriters' commission shall be
% of the principal amount of Designated Securities for which Delayed
Delivery Contracts have been entered into. Such commission shall be
payable to the order of .]
[Certified or official bank check or checks]
[Wire transfer to ]
Counsel:
To the Company, [ ]
To Sears, [ ]
To the Underwriters, [ ]
[Other Terms]:2
[FN]
2. The terms of an attached form of security may be incorporated by
reference.
[/FN]
ANNEX II
DELAYED DELIVERY CONTRACT
SEARS XXXXXXX ACCEPTANCE CORP.,
x/x
Xxxxxxxxx:
,000
Xxxxxxxxx:
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 , 199 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 , 199 (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from , 199 .]
[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:
Delivery Date Principal Date from Which
Amount Interest Accrues
, 199 $ , 199
, 199 $ , 199
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 , 199 , shall
have sold to the several Underwriters, pursuant to the Pricing Agreement
dated , 199 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,
By
(Signature)
(Name and
Title)
(Address)
Accepted, ,199
in Greenville, Delaware
SEARS XXXXXXX ACCEPTANCE CORP.
By
(Title)
