Exhibit 99(ii)
FIRST AMENDMENT TO THE
SEARS 401(k) PROFIT SHARING TRUST
WHEREAS, Sears, Xxxxxxx and Co. (the "Company") and State Street Bank and
Trust Company (the "Trustee") executed a trust agreement known as the Sears
401(k) Profit Sharing Trust Agreement (As Amended and Restated effective as
of January 1, 1998) (the "Trust").
WHEREAS, pursuant to subsection 13.1 of the Trust, the Company reserved the
right to amend the Trust, provided that any amendment changing the rights,
duties and liabilities of the Trustee may be made with its consent;
WHEREAS, the Trustee has consented to the assignment of determining in its
sole discretion whether a proposed refinancing of an ESOP Loan is in
accordance with the requirements of ERISA;
NOW, THEREFORE, pursuant to the amending power reserved to the Company by
subsection 13.1 of the Trust, the Trust be, and hereby is, amended by adding
the following new Section 4.5A to the Trust effective as of January 1, 1998:
"4.5A. Refinancing of ESOP Loans. With respect to the refinancing of any
ESOP Loan, the Trustee shall be an independent fiduciary and assume the
exclusive responsibility for determining whether the terms and conditions of
any refinancing satisfy the trustee's duties and responsibilities under
XXXXX, and the Company and Trustee may separately agree to the terms and
conditions of such engagement. Notwithstanding any provision to the
contrary, the Trustee is limited in its ability to refinance an ESOP Loan to
those refinancing proposals presented to it by the Company. In effectuating
the refinancing of an ESOP Loan, the Trustee shall have the power to take all
actions necessary to refinance all or a portion of such ESOP Loans, either by
extending or shortening the maturities of existing ESOP Loans or by allowing
the Company to loan an amount to the trust which is used to repay an existing
loan, and for any sum so borrowed, to issue its promissory note as trustee,
to pledge any securities or other property of the fund for the repayment of
such loan, to repay from time to time the principal and interest on such loan
with any such borrowing or refinancing and to execute any documents,
instruments or certificates to effectuate such borrowing or refinancing; and
provided further that if any ESOP Loan is from, or guaranteed by, a "party in
interest" within the meaning of Section 3(14) of ERISA, the requirements of
Section 6.2(a)-(i) shall be satisfied."
FURTHER, the officers of the Company be, and hereby are, authorized to take
whatever actions are necessary to carry out the intent and purpose of the
foregoing amendments.
SEARS, XXXXXXX AND CO.
By: /s/ Xxxxx Xxxxxxxxxxx
Xxxxx Xxxxxxxxxxx
Its: pursuant to Power of Attorney
for Xxxxx X. Xxxxxxxx,
Vice President and Treasurer
Date: June 26, 1998
AGREED AND CONSENTED TO BY
STATE STREET BANK AND TRUST COMPANY
By: /s/Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Its: Executive Vice President
Date: June 26, 1998
