EXHIBIT 4(h)
GUARANTEE
Sears, Xxxxxxx and Co., a corporation organized and existing under the
laws of the State of New York ("Sears"), under the Indenture, dated as of
October 1, 2002, between Sears Xxxxxxx Acceptance Corp., a corporation
organized and existing under the laws of the State of Delaware (the "Company")
and BNY Midwest Trust Company, an Illinois trust company (the "Trustee"), as
supplemented by the First Supplemental Indenture, dated as of November 3, 2003
(the "First Supplemental Indenture"), among the Company, Sears and the Trustee
(as so supplemented, the "Indenture"), has irrevocably and unconditionally
guaranteed that (a) the principal of (and premium, if any) and interest on the
Notes shall be paid in full when due, whether at maturity, by acceleration or
otherwise, and (b) in case of any extension of time in payment or renewal of
any Notes or pursuant to any cure period provisions of the Notes or the
Indenture, they shall be paid in full when due in accordance with the terms
of the extension, renewal or cure period (the "Guarantee"). Failing payment
when due of any amount so guaranteed, the Guarantee obligates Sears to pay
the same. In the event of a default in the payment of principal, interest
or premium (if any), the Trustee or any Holder of Notes may enforce the
Guarantee against Sears without first proceeding against the Company.
Capitalized terms used herein have the meanings assigned to them in the
Indenture unless otherwise indicated.
The obligations of Sears to the Holders of Notes and to the
Trustee pursuant to the Guarantee are expressly set forth in the
First Supplemental Indenture and reference is hereby made to such
First Supplemental Indenture for the precise terms of the Guarantee.
No stockholder, officer, director or incorporator, as such, past,
present or future of Sears shall have any liability under the Guarantee
by reason of his, her or its status as such stockholder, officer, director
or incorporator.
The Guarantee shall be applicable to all Notes outstanding on the
date hereof and any Note authenticated after the date of the Guarantee,
in accordance with the terms of the Indenture whether or not a notation
of the Guarantee is endorsed on any Note. The Guarantee is a
continuing guarantee and shall remain in full force and effect
and shall be binding upon Sears and its successors and assigns
until full and final payment of all of principal, interest and
premium (if any) under the Notes and shall inure to the benefit
of the successors and assigns of the Trustee and the Holders and,
in the event of any transfer or assignment of rights by any Holder
or the Trustee, the rights and privileges herein conferred upon
that party shall automatically extend to and be vested in such t
ransferee or assignee, all subject to the terms and conditions hereof.
The Guarantee is a guarantee of payment, not of collectibility.
Sears hereby confirms that it is its intention that this
Guarantee not constitute a fraudulent transfer or conveyance for
purposes of any Federal bankruptcy law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal, state or foreign law to the extent applicable to this
Guarantee (the "Applicable Laws"). In the event that this
Guarantee would constitute or result in a violation of any
Applicable Law, the liability of Sears under this Guarantee shall
be reduced to the maximum amount permissible under such Applicable Law.
Dated:
November 3, 2003
SEARS, XXXXXXX AND CO.
By: _/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President and Chief Financial Officer
