EXHIBIT 1(a)
[FORM OF]
UNDERWRITING AGREEMENT
[Underwriters]
As Representatives of and on behalf of
the several Underwriters
_______, 20__
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, 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, or, 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
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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, as of the
date hereof, 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 to, 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
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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 Agreement) 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, 14 or 15(d) 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
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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.
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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, and to indemnify and hold harmless the Underwriters from any
documentary stamp or similar issue tax and any related interest or
penalties (except to the extent that any such interest or penalties result
from the failure of the Underwriters to timely pay any such tax of which
they had knowledge) on the issue, sale or delivery of the Designated
Securities to the Underwriters (it being understood that, except as
otherwise expressly provided in this Agreement, the Underwriters will pay
all of their own costs and expenses, including the cost of printing any
Agreement among Underwriters, the fees of their counsel, transfer taxes on
resale of any of such Designated Securities by them and any advertising
expenses connected with any offers that they may make).
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).
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(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 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) The Company 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
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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
8
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 (ix) 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
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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 Ratings Services; 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) Since the time of execution of the Pricing Agreement applicable to
the Designated Securities, none of the following events shall have
occurred: (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 Luxembourg
(if the Designated Securities have been approved for listing on the
Luxembourg Stock Exchange) or United States Federal or New York State
authorities or a material disruption in securities settlement or clearance
services in the United States shall have occurred, (iii) trading in
securities generally on the Luxembourg Stock Exchange (if the Designated
Securities have been approved for listing on the Luxembourg Stock Exchange)
or the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established by such Exchange, any of which
events, in your judgment, renders it impractical or inadvisable to proceed
with the public offering or the delivery of the Designated Securities, or
(iv) there shall have been any change in national or international
political, legal, tax or regulatory conditions, any of which events, in
your judgment, causes a substantial deterioration in the price and/or value
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.
(i) Counsel to the Underwriters shall have furnished you with 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) The Company is validly existing as a corporation in good
standing under the laws of the State of Delaware.
10
(ii) Sears is validly existing as a corporation in good standing
under the laws of the State of New York.
(iii) The execution and delivery of the Indenture have been duly
authorized by all necessary corporate action of the Company, and the
Indenture has been duly executed and delivered by the Company, and
qualified under the Trust Indenture Act of 1939, as amended, and is a
valid, binding and enforceable agreement of the Company.
(iv) The execution and delivery of the Designated Securities have
been duly authorized by all necessary corporate action of the Company,
and the Designated Securities have been duly executed and delivered by
the Company and are the valid, binding and enforceable obligations of
the Company, entitled to the benefits of the Indenture.
(v) The execution and delivery of this Underwriting Agreement
have been duly authorized by all necessary corporate action of the
Company and Sears, and this Underwriting Agreement has been duly
executed and delivered by the Company and Sears.
(vi) The execution and delivery of the Pricing Agreement with
respect to the Designated Securities have been duly authorized by all
necessary corporate action of the Company and Sears, and the Pricing
Agreement has been duly executed and delivered by the Company and
Sears.
Such counsel shall also state that: (a) no information has come to
such counsel's attention that causes such counsel to believe that the
Registration Statement, as amended or supplemented, including the documents
incorporated by reference therein (except the financial statements and
schedules and other financial, statistical and accounting data included
therein, as to which such counsel need express no view), at the time it
became effective, contained 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 (b) no information has
come to such counsel's attention that causes such counsel to believe that
the Prospectus, as amended or supplemented, including the documents
incorporated by reference therein (except the financial statements and
schedules and other financial, statistical and accounting data included
therein, as to which such counsel need express no view) contains an untrue
statement of a material fact or omitted or omits 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.
(j) Mayer, Brown, Xxxx & Maw, special tax counsel for the Company,
shall have furnished to you their written opinion, dated the Time of
Delivery for such Designated Securities, in form satisfactory to you in
your reasonable judgment, as to matters set forth under "United States Tax
Considerations" in the Prospectus as amended or supplemented.
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
11
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
12
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
13
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
14
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.
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,
15
_________________________________________________________________________, and
if to the Company shall be sufficient in all respects if delivered or sent by
registered mail to the Company at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Xxxxxxx X. Xxxxxx, Assistant 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 00000, Attention: Xxxxxxxxx X.
Xxxxx, Senior Vice President and General Counsel.
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.
16
If the foregoing is in accordance with your understanding, please sign and
return two counterparts hereof.
Very truly yours,
SEARS XXXXXXX ACCEPTANCE CORP.
By: ____________________________
[Name]
[Title]
SEARS, XXXXXXX AND CO.
By: ____________________________
[Name]
[Title]
Accepted as of the date hereof:
______________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
As Representatives of and on behalf of
the several Underwriters
17
ANNEX I
PRICING AGREEMENT
[Underwriters]
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
__________, 200_
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 ________, 20___ (the "Underwriting Agreement"),
executed between the Company and Sears, Xxxxxxx and Co. ("Sears"), on the one
hand, and ______________________________________ as representatives of and on
behalf of the several Underwriters named in Schedule I hereto, 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 and the Time of Delivery,
except that (i) each representation and warranty with respect to the
Registration Statement 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 and the Time of Delivery, and (ii) 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 (a) the date of the
Underwriting Agreement and as of the Time of Delivery in relation to the
Prospectus (as therein defined) and (b) the date of this Pricing Agreement and
as of the Time of Delivery 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.
18
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:
______________________________________
By: __________________________________
Name: ________________________________
Title: _______________________________
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
19
SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED
UNDERWRITER SECURITIES TO BE PURCHASED
$
---------------------
TOTAL $
=====================
20
SCHEDULE II
Title of Designated Securities:
___% Notes due ______________
Principal Amount of Designated Securities Offered:
$
-----------
Denominations:
US$1,000 (see "Other Terms")
Price to Public:
______% of the principal amount of
the Designated Securities, plus accrued
interest 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
Indenture:
Indenture, dated as of May 15, 1995,
between the Company and
JPMorgan Chase Bank, as Trustee
Form of Designated Securities:
[Global form only]
Maturity:
--------------
Interest Rate:
%
----
Interest Payment Dates:
_________ and __________
21
Redemption Provisions:
Incorporated by reference to the attached Form of Note
Sinking Fund Provisions:
None
Time of Delivery:
_______ A.M., Chicago time, ______________
Funds in which payment by Underwriters to Company to be made:
Immediately available funds
Method of Payment:
Wire transfer to JPMorgan Chase Bank, ABA No. [000-000-000], for the
Account of Sears Xxxxxxx Acceptance Corp., Account No. [910-0000000]
Closing Location:
Hoffman Estates, Illinois
Delayed Delivery:
None
Counsel:
To the Company and Sears:
- Xxxxxxxxx X. Xxxxx, Senior Vice President and General Counsel, Sears,
Xxxxxxx and Co.
- Mayer, Brown, Xxxx & Maw, special counsel to the Company and Sears
To the Underwriters:
- Cleary, Gottlieb, Xxxxx & Xxxxxxxx
22
ANNEX II
DELAYED DELIVERY CONTRACT
SEARS XXXXXXX ACCEPTANCE CORP.,
c/o
Attention:
[Date]
Attention:
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
_______, ____ 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 _______, ____ (the "Delivery Date") and interest on the Designated Securities
so purchased will accrue from __________, ____.]
[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 __________, ____, shall have sold to the several Underwriters,
pursuant to the Pricing Agreement dated ___________, ____ with the Company and
Sears, Xxxxxxx and Co. ("Sears"), an aggregate principal amount of Designated
Securities equal to $ , minus the
23
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, [Date]
in Greenville, Delaware
SEARS XXXXXXX ACCEPTANCE CORP.
By
(Title)
24
