EXHIBIT 4(d)
FORM OF NOTE
[FORM OF FACE OF NOTE]
THIS NOTE IS A "GLOBAL SECURITY" WITHIN THE MEANING OF THE INDENTURE DATED AS OF
____________ BETWEEN SEARS XXXXXXX ACCEPTANCE CORP. AND ________________________
(THE "INDENTURE"), AND IS REGISTERED IN THE NAME OF CEDE & CO. AS THE NOMINEE
FOR THE DEPOSITORY TRUST COMPANY ("DTC"). UNLESS AND UNTIL IT IS EXCHANGED FOR
SECURITIES THAT ARE NOT GLOBAL SECURITIES, THIS NOTE MAY BE TRANSFERRED, IN
WHOLE BUT NOT IN PART, ONLY TO ANOTHER NOMINEE OF DTC OR TO A SUCCESSOR
DEPOSITORY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Number _____ $___________
CUSIP NO.___________
SEARS XXXXXXX ACCEPTANCE CORP.
[__%] Note due ______________
Original Issue Date: ___________
Interest Payment Dates: ___________
Maturity Date: _______________
Interest Rate: ________ per annum
Sears Xxxxxxx Acceptance Corp., a corporation organized and existing under the
laws of the State of Delaware (the "Company"), for value received, hereby
promises to pay to CEDE & CO., or registered assigns, the principal sum of
_______________ (the "Principal Amount") upon presentation and surrender of this
Note on the Maturity Date shown above at the office or agency of the Company in
the Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, any office or agency maintained by the Company in the city in which the
principal executive office of the Company is located or the city in which the
principal corporate trust office of the Trustee is located [or the City of
Luxembourg] (collectively, the "Payment Locations"), in such coin or currency of
the [United States of America] as at the time of payment is legal tender for
public and private debts, and to pay interest thereon at the Interest Rate shown
above. The Company will pay interest [semi-annually] [quarterly] [in arrears] on
the Interest Payment Dates shown above, commencing with ____________, until
payment of the Principal Amount of (plus the premium, if any, on) this Note has
been made or duly provided for. Interest on this Note will accrue from the most
recent
date to which interest has been paid, or if no interest has been paid, from the
Original Issue Date shown above.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date shall, subject to certain exceptions provided in the
Indenture, be paid to the Person in whose name this Note is registered on the
close of business on the 15th calendar day (whether or not a Business Day)
preceding each Interest Payment Date, either, at the option of the Company, by
check mailed to the address of the person entitled thereto as such address shall
appear on the Security Register, or at any of the Payment Locations. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holder on such Interest Payment Date, and may be paid
to the Person in whose name this Note is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Holders not less than 10 days
prior to such Special Record Date, or may be paid, at any time in any other
lawful manner, all as more fully set forth in the Indenture.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the interest or principal (or premium, if any) payment
shall be made on the next day that is a Business Day, and no interest on such
payments shall accrue for the period from and after the Interest Payment Date or
the Maturity Date to such next Business Day. [Interest on the Note will be
computed on the basis of a 360-day year of twelve 30-day months.]
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and such further provisions shall for all purposes
have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof or any indenture supplemental thereto, or
become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by or on behalf of the Trustee
under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
------------
Sears Xxxxxxx Acceptance Corp.
By
-----------------------------
President
By
-----------------------------
Vice President
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to
in the within-mentioned Indenture.
---------------------,
as Trustee
By:
-----------------------------------
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS XXXXXXX ACCEPTANCE CORP.
[____%] Note due _____________
1. This Note is one of a duly authorized issue of debentures, notes, bonds
or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an indenture
dated as of ____________, executed between the Company and _______________, as
Trustee; to which indenture and all indentures supplemental thereto (herein
collectively called the "Indenture") reference is hereby made for a
specification of the rights and limitation of rights thereunder of the Holders
of the Securities, the rights and obligations thereunder of the Company and the
rights, duties and immunities thereunder of the Trustee. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any), may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as the "[___%] Notes due ____________" of the Company (hereinafter
referred to as the "Notes"). All terms used in this Note which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
2. In case a default, as defined in the Indenture, shall occur and be
continuing with respect to the Notes, the principal amount of all Notes then
outstanding under the Indenture may be declared or may become due and payable
upon the conditions and in the manner and with the effect provided in the
Indenture. The Indenture provides that such declaration may in certain events be
annulled by the Holders of a majority in principal amount of the Notes
outstanding.
3. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture) of
each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and premium,
if any, on), or the interest on, any Security, or reduce the principal amount of
(and premium, if any, on), or the rate of interest on any Security, or change
the Currency in which the principal of (and premium, if any) or interest on such
Securities is denominated or payable, or reduce the amount of the principal of
an Original Issue Discount Security that would be payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.1 of the Indenture
without the consent of the Holder of each outstanding Security so affected, or
(ii) reduce the aforesaid percentage of Securities of any series the Holders of
which are required to consent to any such supplemental indenture, without the
consent of the Holders of each outstanding Security affected thereby.
4. The Indenture also provides that the Holders of a majority in principal
amount of the Securities of any series then outstanding may waive any past
default under the Indenture and its consequences, except a default in the
payment of the principal of or interest or premium, if any, on any of the
Securities.
5. No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay
the principal of and interest and premium, if any, on this Note at the place,
at the respective times, at the rate, and in the Currency, herein prescribed.
6. This Note is transferable by the registered Holder hereof or by his
attorney duly authorized in writing at the office or agency of the Company in
the Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, any Payment Locations, without charge except for any tax or other
governmental charge imposed in relation thereto, but only in the manner and
subject to the limitations provided in the Indenture and upon surrender of this
Note. Upon any such transfer a Note or Notes of authorized denominations for a
like aggregate principal amount and bearing a number not contemporaneously
outstanding will be issued in exchange herefor.
7. The Notes are issuable only as registered Notes without coupons, in
denominations of $[1,000] and any integral multiple of $[1,000]. In the manner
and subject to the limitations provided in the Indenture, Notes are
exchangeable, without charge except for any tax or other governmental charge
imposed in relation thereto, for other Notes of authorized denominations for a
like aggregate principal amount, at the office or agency of the Company in the
Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, any Payment Locations.
8. The Company, the Trustee, any Authenticating Agent, any paying agent and
any Security registrar may deem and treat the registered Holder hereof as the
absolute owner hereof (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon by anyone
other than the Company or any Security registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest and the premium,
if any, hereon and for all other purposes, and neither the Company, the
Trustee, an Authenticating Agent, a paying agent nor a Security registrar shall
be affected by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Note to the extent of
the sum or sums so paid.
9. No recourse shall be had for the payment of the principal of or the
interest or premium, if any, on this Note or for any claim based hereon or
otherwise in any manner in respect hereof, or in respect of the Indenture,
against any incorporator, shareholder, officer or director, past, present or
future, of the Company or of any predecessor or successor corporation, whether
by virtue of any constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof. In the event of any sale or
transfer of its assets and liabilities substantially as an entirety to a
successor corporation, the predecessor corporation may be dissolved and
liquidated as more fully set forth in the Indenture.
10. The Company will, subject to the exceptions and limitations set forth
below, pay such additional amounts (the "Additional Amounts") to any Holder of a
Note who is a United States Alien (as defined below) as may be necessary in
order that every net payment of the principal of or interest or premium, if any,
on such Note after deduction or withholding for or on account of any present or
future tax, assessment or governmental charge imposed by the United States (as
defined below) (or any political subdivision or taxing authority thereof or
therein) upon, or as a result of, such payment, will not be less than the amount
provided for in such Note to be then due and payable. However, the Company will
not be required to make any payment of Additional Amounts to any such Holder for
or on account of:
(a) any such tax, assessment or other governmental charge imposed
because of the
existence of any present or former connection between such Holder (or between a
fiduciary, settlor or beneficiary of, or a person holding a power over, such
Holder, if such Holder is an estate or trust, or a partner or shareholder of
such Holder, if such Holder is a partnership or corporation) and the United
States, including, without limitation, such Holder (or such fiduciary, settlor,
beneficiary, person holding a power, partner or shareholder) being or having
been a citizen or resident thereof or being, or having been, present in the
United States for 183 days or more in a taxable year or being, or having been,
engaged in a trade or business or present therein or having, or having had, a
permanent establishment therein;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason
of such Xxxxxx's past or present status as a personal holding company, foreign
personal holding company, controlled foreign corporation, passive foreign
investment company; private foundation or other tax exempt organization, in each
case with respect to the United States, or as a corporation which accumulates
earnings to avoid United States federal income tax;
(d) any tax, assessment or other governmental charge which is payable
otherwise than by withholding from payments on or in respect of any Note;
(e) any tax, assessment or other governmental charge that a paying
agent must withhold from any payment of principal of or interest or premium, if
any, on any Note, if another paying agent can make such payment without
withholding;
(f) any tax, assessment or other governmental charge imposed because
of the failure to comply with certification, identification, documentation,
information or other reporting requirement concerning the nationality,
residence, identity or connection with the United States of the Holder or
beneficial owner of such Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or taxing
authority thereof or therein as a precondition to relief or exemption from such
tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed because
such Xxxxxx (or a partnership of which such Holder is a member) is or was the
actual or constructive owner of 10% or more of the total combined voting power
of all classes of stock of the Company entitled to vote;
(h) any tax, assessment or other governmental charge imposed on any
Holder who is a fiduciary or partnership or other than the sole beneficial owner
of the Note, but only to the extent that a beneficiary or settlor with respect
to such fiduciary or a member of such partnership or a beneficial owner of the
Note would not have been entitled to the payment of an Additional Amount had
such beneficiary, settlor, member or beneficial owner been the Holder of such
Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) or (h).
The term "United States" means the United States of America, the
Commonwealth of Puerto Rico and each territory and possession of the United
States of America and the area subject to its jurisdiction. The term "United
States Alien" means any person who, for United States federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which, as to the United States, is a
foreign corporation, a non-resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
For the purposes of this Note, the definition of "Additional Amounts"
shall include any additional amounts payable under this Paragraph and Paragraph
11(a) and all references herein to principal of and interest and premium, if
any, on the Notes shall include such Additional Amounts.
11. (a) The Company may redeem this Note at any time, in whole or in part,
by paying the Holder hereof the greater of:
- 100% of the principal amount of (plus the premium, if any, on) the portion
of this Note that the Company redeems, plus any interest that has accrued,
but that the Company has not previously paid to the Holder hereof, up to
but not including the date that the Company redeems that portion of this
Note; and
- the sum of the present values of the remaining scheduled payments of
principal of and interest and premium, if any, on the portion of this Note
that the Company redeems (excluding the portion of any payment of interest
that has accrued thereon as of the date the Company redeems that portion of
this Note), plus any interest that has accrued, but that the Company has
not previously paid to the Holder hereof, up to but not including the date
that the Company redeems that portion of this Note. The Company will
appoint a Reference Treasury Dealer (as defined below) to determine the
present values. The Reference Treasury Dealer will determine the present
values by discounting each of the remaining scheduled payments. Each of the
remaining scheduled payments will be discounted on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined below) from the date the payment is
scheduled to be made up to but not including the date the Company redeems
that portion of this Note.
The Company must give the Holder hereof at least 30, but not more than
60, days notice that it will redeem any portion of this Note. Interest will
cease to accrue on that portion of this Note that the Company calls for
redemption when the redemption price is paid. Each notice shall be given in the
manner described in Paragraph 11(c).
"Adjusted Treasury Rate" means, for any redemption date, the rate per
year equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming that the price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) was equal to the Comparable
Treasury Price for that redemption date, plus ____%.
"Comparable Treasury Issue" means the United States Treasury security
selected by a Reference Treasury Dealer appointed by the Company:
- that has a maturity comparable to the remaining term of this Note; and
- that would be used, at the time of selection and in accordance with
customary financial practice, to price new issues of corporate debt
securities of comparable maturity to the remaining term of this Note.
"Comparable Treasury Price" means, for any redemption date:
- the average of the Reference Treasury Dealer Quotations for that redemption
date, after
excluding the highest and lowest of those quotations (if any); or
- if the Trustee obtains fewer than three Reference Treasury Dealer
Quotations, the average of all the quotations.
"Reference Treasury Dealer" means each of [underwriters], and their
respective successors; provided, however, that if any of them ceases to be a
primary U.S. Government securities dealer in The City of New York, the Company
may replace that entity with another primary U.S. Government securities dealer
in The City of New York.
"Reference Treasury Dealer Quotation" means, for each of at least four
Reference Treasury Dealers selected by the Company and any redemption date, the
average of the bid and asked prices for the Comparable Treasury Issue (expressed
in each case as a percentage of its principal amount) quoted in writing to the
Trustee by that Reference Treasury Dealer at 5:00 p.m. (New York City time) on
the third business day before that redemption date. The Trustee will determine
this average.
(b) The Notes may also be redeemed prior to maturity as provided under
this Paragraph 11(b).
The Notes may be redeemed at the option of the Company, as a whole but
not in part, at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount of (plus the premium, if any, on) the Notes together with
accrued interest up to but not including the date fixed for redemption (the
"Redemption Amount") if the Company determines that, as a result of (A) any
change in or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein, or any change in the application, official
interpretation or enforcement of such laws, regulations or rulings, including a
decision rendered by a court of competent jurisdiction in the United States or
any political subdivision thereof, whether or not such decision was rendered
with respect to the Company; or (B) the issuance of a technical advice
memorandum, letter ruling or administrative pronouncement issued by the United
States Internal Revenue Service based on a fact pattern substantially similar to
that of the Company becoming effective or being issued on or after [Original
Issue Date], there is a substantial probability that the Company has or will
become obligated to pay Additional Amounts with respect to the Notes in
accordance with Paragraph 10 hereof, and the Company cannot avoid such
obligation by taking reasonable measures available to it. Prior to the
publication of any notice of redemption of the Notes pursuant to the foregoing,
the Company shall deliver to the Trustee an opinion of legal counsel to the
Company stating that the Company is entitled to effect such redemption and a
certificate setting forth facts showing that the conditions precedent to the
right of the Company to so redeem have occurred.
Notice of redemption will be given by the Company not less than 30 nor
more than 60 days prior to the date fixed for redemption, which date and the
redemption price will be specified in the notice. Each notice shall be given in
the manner described in Paragraph 11(c).
(c) (i) Any redemption notice given under this Paragraph 11 shall
state the date fixed for redemption and the Redemption Amount. On the redemption
date, the Company shall be bound to redeem the Notes to which such notice
relates at their Redemption Amount upon presentment thereof. Notices to Holders
shall be mailed by the Trustee, first class postage prepaid, at their last
addresses as they appear in the Security Register. If applicable, notice of
intention to redeem the Notes also shall be given in the manner described in
subparagraph (ii) below. Such notice by publication shall be published at least
once a week for two successive
weeks prior to the date fixed for redemption, the first such publication to be
not less than 30 days nor more than 60 days prior to the date fixed for
redemption.
(ii) If and so long as the Notes are listed on the Luxembourg Stock
Exchange and such Exchange shall so require, notices to Holders of the Notes
will be given in a daily newspaper of general circulation in Luxembourg. If
publication in Luxembourg is not practical, such publication shall be made
elsewhere in Europe. The term "daily newspaper" shall mean a newspaper
customarily published on each Business Day in morning editions, whether or not
it shall be published in Saturday, Sunday or holiday editions. Such publication
is expected to be made in the Luxemburger Wort. Such notices will be deemed to
have been given on the date of such publication. If by reason of the temporary
or permanent suspension of publication of any newspaper or by reason of any
other cause, it shall be impossible to make publication of such notice in a
daily newspaper as herein provided, then such publication or other notice in
lieu thereof, as shall be made by the Trustee, shall constitute sufficient
publication of such notice, if such publication or other notice shall, so far as
may be possible, approximate the terms and conditions of the publication in lieu
of which it is given. The Trustee shall promptly furnish to the Company and each
other paying agency a copy of each such notice so published.
12. Notwithstanding anything to the contrary in the Indenture, the term
"Business Day" shall mean, for all purposes with respect to the Notes, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a legal holiday for
banking institutions in any of the City of Wilmington, Delaware, the City of
Chicago, The City of New York, [the City of Luxembourg,] or the city in which
the principal corporate trust office of the Trustee is located.
13. This Note shall be governed by the laws of the State of Delaware.
