Exhibit 1(d)
UNDERWRITING AGREEMENT
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
September 18, 1997
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"). 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 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
5 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, binding and enforceable obligations of the Company in
accordance with their terms, except as the same may be limited by insolvency,
bankruptcy, reorganization, moratorium, liquidation, fraudulent conveyance
and transfer or other laws similar relating to or affecting the enforcement
of creditors' rights generally or by general equity principles, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be entitled to the benefits of the
Indenture; and
(b) The issue and sale of the Securities pursuant to any
Pricing Agreement and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement 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.
4. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by you of the release of the
Designated Securities, the several Underwriters propose to offer the
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
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.
Each Underwriter represents and agrees that it will not, at any time
that such Underwriter is acting as an "underwriter" (as defined in Section
2(11) of the Act) with respect to any Designated Securities, transfer,
deposit or otherwise convey any such Designated Securities, into a trust or
other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interests in,
such Designated Securities without the prior written consent of the Company.
5. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive
certificates registered in the name of Cede & Co., as nominee for the
Depository Trust Company, New York, New York ("DTC") (unless otherwise
specified in the Pricing Supplement) 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.
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, earning 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, 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) All of the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable. 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. free and clear of any security interests, claims, liens or encumbrances,
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) 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, 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 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 securities laws of the various
states or other jurisdictions which are applicable to the issue and sale of
the Designated Securities, as to which such counsel need express no opinion;
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 has been obtained or effected
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;
(vi) The Fixed Charge Coverage and Ownership
Agreement and the Extension Agreement have been duly authorized, executed and
delivered by the parties thereto and are valid and binding instruments of the
parties thereto enforceable in accordance with their terms except as the same
may be limited by insolvency, bankruptcy, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other similar laws
relating to or affecting the enforcement of creditors' rights generally and
by general equity principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Indenture has been duly authorized,
executed and delivered on the part of the Company and, as to the Company, is
a valid, binding and enforceable instrument in accordance with its terms
except as the foregoing may be limited by insolvency, bankruptcy,
reorganization, moratorium, liquidation, fraudulent conveyance and transfer
or other similar laws relating to or affecting the enforcement of creditors'
rights generally or by general equity principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and has been qualified under the Trust
Indenture Act; the Designated 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, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws relating to or affecting the
enforcement of creditors' rights generally or by general equity principles,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(viii)Such counsel does not know of any pending
legal or governmental proceedings required to be described in the Prospectus
as amended or supplemented (including documents incorporated by reference
therein) which are not described as required;
(ix) 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 were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder;
(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 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
(xi) 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
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 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 it became effective or
was 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 LLP, certified auditors, 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; 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 none of (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, or (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 Designated 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 Designated Securities of a defaulting Underwriter or Underwriters by
you and the Company as provided in subdivision (a) above, the aggregate
principal amount of such Designated 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 Designated
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 Designated 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 Designated Securities of a defaulting Underwriter or Underwriters by
you and the Company as provided in subdivision (a) above, the aggregate
principal amount of Designated 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 Designated 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 Designated 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 Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx 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 0000 Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx Xxxx; 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: Xxxxx
X. Xxxxxx, Secretary; and if to Sears shall be sufficient in all respects if
delivered or sent by registered mail to Sears at 0000 Xxxxxxx Xxxx, Xxxxxxx
Xxxxxxx, Xxxxxxxx, Attention: Xxxxxxx X. 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:/S/Xxxxx X. Xxxxx
Sears, Xxxxxxx and Co.
By:/S/Xxxxx X. Xxxxxxxx
Accepted as of the date hereof:
XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
By:Xxxxxx Xxxx
Vice President
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
As Representatives of the several
Underwriters named in Schedule I hereto
World Financial Center
Xxxxx Xxxxx
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 LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED
By:_____________________________________
Managing Director
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . .
___________________
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:1
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,
[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
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]:1
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:
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)
