As filed with the Securities and Exchange Commission on May 19, 1995
Registration Statement No. 33-58139
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Sears Roebuck Acceptance Corp.
(Exact name of registrant as specified in its charter)
Delaware 51-0080535
(State of incorporation) (I.R.S. Employer Identification No.)
3711 Kennett Pike
Greenville, Delaware 19807
(302) 888-3100
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Sears, Roebuck and Co.
(Exact name of co-registrant as specified in its charter)
New York 36-1750680
(State of incorporation) (I.R.S. Employer Identification No.)
Sears Tower
Chicago, Illinois 60684
(312) 875-2500
(Address, including zip code, and telephone number,
including area code, of co-registrant's principal executive offices)
Keith E. Trost David Shute, Esq.
President Senior Vice President,
Sears Roebuck Acceptance Corp. General Counsel and Secretary
3711 Kennett Pike Sears, Roebuck and Co.
Greenville, Delaware 19807 Sears Tower
(302) 888-3100 Chicago, Illinois 60684
(312) 875-2500
(Names, addresses, including zip code, and telephone numbers,
including area code, of agents for service)
Copies to:
Richard F. Kotz, Esq. Robert J. Pence, Esq. Michael D. Levin, Esq.
Secretary Senior Counsel Latham & Watkins
Sears Roebuck Corporate Law Department Sears Tower
Acceptance Corp. Sears, Roebuck and Co. Suite 5800
3711 Kennett Pike Sears Tower Chicago, Illinois 60606
Greenville, Delaware 19807 Chicago, Illinois 60684
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as
determined by market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. X
(Cover Continued on Following Page)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Amount Offering Aggregate Amount of
Class of Securities To Be Price Per Offering Registration
To Be Registered Registered Unit(1) Price(1) Fee
Debt Securities $3,000,000,000 100% $3,000,000,000 $1,034,490(2)
(1) Estimated solely for the purpose of determining the amount of the
registration fee.
(2) A fee of $344.83 was paid with the filing of the registration
statement; an additional fee of $1,034,145.17 is being paid with the filing
of this amendment.
The registrant and co-registrant hereby amend this registration statement
on such date or dates as may be necessary to delay its effective date until
the registrant and co-registrant shall file a further amendment which
specifically states that this registration statement shall thereafter
become effective in accordance with section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on such
date as the Commission, acting pursuant to said section 8(a), may
determine.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such State.
SUBJECT TO COMPLETION
Dated May 19, 1995
Sears Roebuck Acceptance Corp.
Debt Securities
Sears Roebuck Acceptance Corp. (``SRAC'') from time to time may offer up to
$3,000,000,000 aggregate initial offering price of its debt securities
consisting of debentures, notes and/or other unsecured evidences of
indebtedness (the ``Debt Securities''). If so provided in the accompanying
Prospectus Supplement, the Debt Securities of any series may be represented
in whole or in part by one or more Global Securities (``Global
Securities'') registered in the name of a depository's nominee and, if so
represented, beneficial interests in such Global Securities will be shown
on, and transfers thereof will be effected only through, records maintained
by the depository and its participants. The Debt Securities may be offered
as separate series in amounts, at prices and on terms to be set forth in
supplements to this Prospectus. It is anticipated that SRAC will sell Debt
Securities directly to institutional investors and may sell Debt Securities
to or through underwriters, and also may sell Debt Securities directly to
other purchasers or through agents. See ``Plan of Distribution.'' The
accompanying Prospectus Supplement or Prospectus Supplements (the
``Prospectus Supplement'') sets forth the names of any underwriters or
agents involved in the sale of the Debt Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be
purchased by underwriters and the compensation, if any, of such
underwriters or agents.
The terms of the Debt Securities, including, where applicable, the specific
designation, aggregate principal amount, denominations, maturity, premium,
if any, rate (which may be fixed or variable) and time of payment of
interest, if any, terms for redemption at the option of SRAC or the Holder,
terms for sinking fund payments, the initial public offering price, the
names of, and the principal amounts, if any, to be purchased by
underwriters and the compensation of such underwriters, deferred pricing
arrangements, if any, and the other terms in connection with the offering
and sale of the Debt Securities in respect of which this Prospectus is
being delivered, are set forth in the accompanying Prospectus Supplement.
As used herein, Debt Securities shall include securities denominated in
U.S. dollars or, at the option of SRAC if so specified in the applicable
Prospectus Supplement, in any other currency or in composite currencies or
in amounts determined by reference to an index.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
May , 1995
No dealer, salesman or other person has been authorized to give any
information or to make any representation other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representation must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the registered
securities to which it relates or an offer to sell or the solicitation of
an offer to buy such securities in any jurisdiction to any person to whom
it is unlawful to make such offer or solicitation in such jurisdiction.
Neither the delivery of this Prospectus nor any sale made hereunder shall,
under any circumstances, create any implication that there has been no
change in the affairs of the Company since the date hereof or that the
information is correct as of any time subsequent to its date.
TABLE OF CONTENTS
Page
Available Information 3
Reports to Holders of Debt Securities 3
Incorporation of Certain Documents by Reference 3
Sears Roebuck Acceptance Corp. 4
Use of Proceeds 4
Summary Financial Information 5
Ratio of Earnings to Fixed Charges 6
Description of Debt Securities 6
Plan of Distribution 9
Legal Opinion 10
Experts 10
AVAILABLE INFORMATION
SRAC and Sears, Roebuck and Co. (``Sears''), SRAC's parent, are subject to
the informational requirements of the Securities Exchange Act of 1934, as
amended (the ``Exchange Act'') and in accordance therewith file reports and
other information with the Securities and Exchange Commission (the
``Commission''). Sears also files proxy statements with the Commission.
Such reports, proxy statements and other information can be inspected and
copied at the public reference facilities of the Commission in Room 1024,
450 Fifth Street N.W., Washington, D.C. 20549; 7 World Trade Center, 13th
Floor, New York, New York 10048; and Suite 1400, Northwestern Atrium
Center, 500 W. Madison Street, Chicago, Illinois 60606; and copies of such
materials can be obtained from the public reference section of the
Commission at 450 Fifth Street N.W., Washington, D.C. 20549, at prescribed
rates. Reports, proxy statements and other information concerning Sears can
also be inspected at the offices of the New York Stock Exchange, Inc., 20
Broad Street, New York, New York 10005, the Chicago Stock Exchange
Incorporated, 440 South LaSalle Street, Chicago, Illinois 60605, and the
Pacific Stock Exchange, Inc., 301 Pine Street, San Francisco, California
94104.
Additional information regarding SRAC, Sears and the Debt Securities is
contained in the Registration Statement and the exhibits relating thereto,
filed with the Commission under the Securities Act of 1933, as amended (the
``Act''). For further information pertaining to SRAC, Sears and the Debt
Securities, reference is made to the Registration Statement, and the
exhibits thereto, which may be inspected without charge at the office of
the Commission at 450 Fifth Street N.W., Washington, D.C. 20549, and copies
thereof may be obtained from the Commission at prescribed rates.
REPORTS TO HOLDERS OF DEBT SECURITIES
Holders of Debt Securities will receive annual reports containing
information, including financial information that has been audited and
reported on by independent public accountants, about SRAC.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Annual Reports on Form 10-K for the year ended December 31, 1994 and
the Quarterly Reports on Form 10-Q for the quarterly period ended March 31
and April 1, 1995, respectively, filed by SRAC and Sears, and the Current
Reports on Form 8-K for January 17, February 7, April 20, April 25 and May
15, 1995 filed by Sears, with the Commission pursuant to Section 13 of the
Exchange Act, and the proxy statement dated February 21, 1995 relating to a
Special Meeting of Shareholders, held on March 31, 1995 to consider and
vote on a proposal that provides for the distribution to the holders of
Sears common shares of all of the common stock of The Allstate Corporation
that are owned by Sears, filed by Sears with the Commission pursuant to
Section 14 of the Exchange Act, are incorporated in and made a part of this
Prospectus by reference.
All documents filed by SRAC or Sears with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the
date of this Prospectus and prior to the termination of the offering of the
Debt Securities (other than those portions of such documents described in
paragraphs (i), (k) and (l) of Item 402 of Regulation S-K promulgated by
the Commission) shall be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such
documents.
SRAC will provide without charge to each person to whom a copy of this
Prospectus is delivered, on the written or oral request of any such person,
a copy of any or all of the documents incorporated herein by reference (not
including exhibits to such documents unless such exhibits are specifically
incorporated by reference in such documents). Written or telephone requests
for such copies should be directed to Sears Roebuck Acceptance Corp., 3711
Kennett Pike, Greenville, Delaware 19807, Attention: Vice President,
Finance (302/888-3100).
SEARS ROEBUCK ACCEPTANCE CORP.
SRAC is a wholly-owned subsidiary of Sears and was incorporated in 1956
under the laws of Delaware. Its general offices are located at 3711 Kennett
Pike, Greenville Delaware 19807 (302/888-3100). SRAC raises funds primarily
from the direct placement of commercial paper with corporate and
institutional investors and through intermediate-term loans. SRAC uses
borrowing proceeds to acquire short-term notes of Sears and purchase
outstanding customer receivable balances from Sears. Sears, which is a
multi-line retailer that conducts Domestic and International merchandising
operations, uses the funds obtained from SRAC for general funding purposes.
SRAC, and not Sears, will be the sole obligor on the Debt Securities.
SRAC's income is derived primarily from the earnings on its investment in
the notes and receivable balances of Sears. The interest rate on Sears
notes is presently calculated so that SRAC maintains an earnings to fixed
charge ratio of at least 1.25 times. The yield on the investment in Sears
notes is related to SRAC's borrowing costs and, as a result, SRAC's
earnings fluctuate in response to movements in interest rates and changes
in Sears short-term borrowing requirements. Subject to the provisions of
the Indenture relating to the Debt Securities, SRAC will be required to
maintain a ratio of earnings to fixed charges (determined in accordance with
Item 503(d) of Regulation S-K promulgated by the Commission) of not less than
1.10 for any fiscal quarter and cause Sears to maintain ownership of all voting
stock of SRAC as long as any Debt Securities are outstanding, and Sears has
agreed to pay SRAC such amounts as may be necessary for such purpose and to
maintain such ownership. See ``Description of Debt Securities.''
At April 30, 1995, SRAC had eleven employees.
USE OF PROCEEDS
The net proceeds to be received by SRAC from the sale of the Debt
Securities offered hereby will be added to its general funds and initially
used to reduce short-term indebtedness. As indicated under ``Sears Roebuck
Acceptance Corp.,'' SRAC's principal business is the purchase of short-term
notes of Sears; also, on occasion, SRAC purchases customer receivable
balances from Sears Merchandise Group's Domestic credit operations. SRAC
expects to incur additional indebtedness, but the amount and nature thereof
have not yet been determined and will depend on economic conditions and
certain capital requirements of Sears. It is anticipated that Sears and its
subsidiaries will continue their practice of short-term borrowing and will,
from time to time, incur additional long-term debt and engage in
securitization programs in which credit card receivables are sold in public
or private transactions. Sears also may, from time to time, issue equity
securities.
SUMMARY FINANCIAL INFORMATION
The following table sets forth certain summary financial information of
SRAC for the five years ended December 31, 1994. The summary information
should be read in conjunction with the financial statements of SRAC and the
notes thereto incorporated herein by reference.
1994 1993 1992 1991 1990
(dollars in millions)
Operating Results
Total revenues $282.7 $337.5 $696.5 $1,100.8 $1,347.4
Expenses
Interest and related
expenses 218.5 236.1 482.8 825.9 1,072.1
Total Expenses 220.4 276.7 532.3 894.1 1,077.2
Income taxes 22.1 21.3 56.1 70.3 91.8
Net income 40.2 39.5 108.1 136.4 178.4
Financial Position
Assets
Notes of Sears $6,842.5 $3,403.9 $10,493.6 $12,214.5 $14,578.2
Customer receivable
balances purchased
from Sears 81.5 88.0 963.4 1,042.8 -
Total assets 7,031.2 4,145.8 12,415.2 14,676.2 15,373.3
Liabilities
Debt payable within
one year
Commercial paper $4,912.9 $2,475.0 $8,515.3 $10,205.8 $10,331.0
Agreements with bank
trust departments 87.4 139.8 397.9 510.1 571.9
Debentures and notes 845.0 - - 204.0 925.0
Loan agreements with
SOFNV - 379.8 332.1 683.2 590.7
Total liabilities 5,853.5 3,008.3 9,287.0 11,656.1 12,489.6
Sears, Roebuck and Co.
investment in SRAC
Capital stock
(including capital
in excess of
par value) 35.0 35.0 365.2 365.2 365.2
Retained income 1,142.7 1,102.5 2,763.0 2,654.9 2,518.5
Debt as percentage of
equity 496% 263% 296% 384% 431%
Other Pertinent Data
Commercial paper
Average daily
outstandings 3,615 3,812 9,328 10,543 10,340
Agreements with bank
trust departments
Average daily
outstandings 124 402 747 643 848
Contractual Credit
Facilities (year-end) 5,132 4,200 10,812 11,801 10,775
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for SRAC for each of the years ended
December 31, 1994, 1993, 1992, 1991 and 1990 was 1.29, 1.26, 1.34, 1.25 and
1.25, respectively, and for the three-month period ended March 31, 1995 was
1.25. Earnings consist of net income plus fixed charges and income taxes.
Fixed charges consist of interest costs and amortization of debt discount
and expense; rental expense is insignificant with no effect on the
calculation. The interest rate paid by Sears to SRAC on its investment in
Sears notes is presently calculated to produce earnings sufficient to cover
SRAC's fixed charges at least 1.25 times.
The ratio of income to fixed charges for Sears and its consolidated
subsidiaries for each of the years ended December 31, 1994, 1993, 1991 and
1990 was 2.06, 1.66, 1.16 and 0.96, respectively, and for the three- and
twelve-month periods ended April 1, 1995 was 1.56 and 2.05, respectively.
For the year ended December 31, 1992, earnings did not cover fixed charges
by $2,869 million. In the computation of the ratio of income to fixed
charges for Sears and its consolidated subsidiaries, income consists of
income from continuing operations less undistributed net income of
unconsolidated subsidiaries plus fixed charges (excluding capitalized
interest) and federal and state income taxes. Fixed charges consist of
interest costs plus the portion of operating lease rentals which is
estimated to represent the interest element in such rentals.
DESCRIPTION OF DEBT SECURITIES
The following descriptions of the terms of the Debt Securities set forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt
Securities offered by any Prospectus Supplement (the ``Offered Debt
Securities'') and the extent, if any, to which such general provisions may
apply to the Debt Securities so offered will be described in the Prospectus
Supplement relating to such Offered Debt Securities.
The Debt Securities are to be issued under one of the Indentures (each, an
``Indenture'') referred to in the following sentence, a copy of the form of
which has been filed as an exhibit to the Registration Statement. SRAC may
enter into an Indenture with The Chase Manhattan Bank, N.A., as Trustee, or
with one or more other Trustees eligible to act as Trustee under an
Indenture pursuant to the Trust Indenture Act of 1939, as amended (each, a
``Trustee''). The particular Indenture under which any series of Debt
Securities is to be issued, and the identity of the Trustee under such
Indenture, will be identified in the Prospectus Supplement relating to such
series of Debt Securities. The following summaries of certain provisions of
the Debt Securities and the Indenture do not purport to be complete and are
subject to, and are qualified in their entirety by reference to, all the
provisions of the Indenture, including the definitions therein of certain
terms. Whenever particular provisions or defined terms in the Indenture are
referred to herein, such provisions or defined terms are incorporated by
reference.
General
The Debt Securities will be unsecured obligations of SRAC.
The Indenture does not limit the amount of Debt Securities that may be
issued thereunder and provides that Debt Securities may be issued
thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement relating to the particular
series of Offered Debt Securities offered thereby for the following terms
of the Offered Debt Securities: (i) the title of the Offered Debt
Securities; (ii) any limit on the aggregate principal amount of the Offered
Debt Securities; (iii) the date or dates on which the Offered Debt
Securities will mature; (iv) the price (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities
will be issued; (v) the rate or rates (which may be fixed or variable) per
annum at which the Offered Debt Securities will bear interest, if any; (vi)
the date from which such interest, if any, on the Offered Debt Securities
will accrue, the dates on which such interest, if any, will be payable, the
date on which payment of such interest, if any, will commence and the
Regular Record Dates for such Interest Payment Dates, if any; (vii) the
date or dates, if any, after or on which and the price or prices at which
the Offered Debt Securities may, pursuant to any optional or mandatory
redemption, conversion or exchange provisions, be redeemed, converted or
exchanged at the option of SRAC or of the Holder thereof and the other
detailed terms and provisions of such optional or mandatory redemption;
(viii) any subordination provisions; (ix) the dates, if any, on which and
the price or prices at which the Offered Debt Securities will, pursuant to
any mandatory sinking fund provisions, or may, pursuant to any optional
sinking fund provisions, be redeemed by SRAC, and the other detailed terms
and provisions of such sinking fund; (x) if other than the principal amount
thereof, the amount of Offered Debt Securities which shall be payable upon
declaration of acceleration of the Maturity thereof; (xi) the terms of any
warrants attached to the Offered Debt Securities; (xii) the currency or
currencies, including European Currency Units or other composite
currencies, in which Offered Debt Securities may be purchased and in which
principal, premium, if any, and interest, if any, on the Offered Debt
Securities will be payable; (xiii) any index used to determine the amount
of payments of principal, premium, if any, and interest, if any, on the
Offered Debt Securities; (xiv) whether the Offered Debt Securities are
issuable in whole or in part as one or more Global Securities and, in such
case, the name of the Depository for such Global Security or Global
Securities; (xv) the place or places, if other than as set forth in the
Indenture, where the principal, premium, if any, and interest, if any, on
the Offered Debt Securities will be payable; and (xvi) any other terms
relating to the Offered Debt Securities not inconsistent with the Indenture
but which may modify or delete any provision of the Indenture insofar as it
applies to such series; provided that no term thereof shall be modified or
deleted if imposed under the Trust Indenture Act and that any modification
or deletion of the rights, duties or immunities of the Trustee shall have
been consented to in writing by the Trustee.
Principal, premium, if any, and interest, if any, will be payable, and the
Debt Securities (other than Debt Securities represented by Global
Securities) will be transferable, at the office or agency of SRAC
maintained for such purposes in the Borough of Manhattan of The City of New
York, and at such other places, if any, in the city in which the principal
executive offices of SRAC or the city in which the principal corporate
trust office of the Trustee are located, as SRAC may designate, which,
except as otherwise specified in the Prospectus Supplement relating to a
particular series of Offered Debt Securities, will initially include the
principal corporate trust office of the Trustee in the Borough of Manhattan
of The City of New York and the principal executive offices of SRAC in
Greenville, Delaware. Unless other arrangements are made, interest on the
Debt Securities (other than Debt Securities represented by Global
Securities) will be paid by checks mailed to the Holders at their
registered addresses. (Sections 1.1, 2.5, 3.1, 3.2) Information with
respect to payment of principal, premium, if any, and interest, if any, on,
and transfers of beneficial interests in, Debt Securities represented by
Global Securities will be set forth in the Prospectus Supplement relating
thereto.
If the principal, premium, if any, and interest, if any, will be payable in
a currency other than U.S. dollars, including European Currency Units or
another composite currency, and such currency is not available for payment
due to the imposition of exchange controls or other circumstances beyond
the control of SRAC, SRAC shall satisfy its payment obligations in U.S.
dollars on the basis of the Market Exchange Rate for such currency on the
latest date for which such rate was established on or before the date on
which payment is due. (Section 2.12)
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 or any integral multiple thereof. No
service charge will be made for any registration of transfer or exchange of
the Offered Debt Securities, but SRAC may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. (Sections 2.2, 2.5)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a substantial discount below
their stated principal amount. Federal income tax consequences and other
special considerations applicable to any such Original Issue Discount
Securities will be described in the Prospectus Supplement relating thereto.
``Original Issue Discount Security'' means any security which provides for
an amount less than the principal amount thereof to be due and payable upon
the declaration of acceleration of the Maturity thereof upon the occurrence
of a default and the continuation thereof. (Sections 1.1, 6.1)
Certain Restrictions
The Indenture provides that SRAC will maintain a Fixed Charge Coverage
Ratio for any fiscal quarter of not less than 1.10 and that SRAC will cause
Sears to maintain ownership of all the voting stock of SRAC. ``Fixed Charge
Coverage Ratio'' means SRAC's ratio of earnings to fixed charges determined
in accordance with Item 503(d) of Regulation S-K promulgated by the
Commission, as in effect on the date of the Indenture. Pursuant to a letter
agreement between SRAC and Sears (the ``Fixed Charge Coverage and Ownership
Agreement''), Sears has agreed, for the benefit of holders of outstanding
Debt Securities, that, (i) as long as SRAC is so required to maintain such
Fixed Charge Coverage Ratio, Sears will pay SRAC such amounts which,
together with any other earnings available therefore, are sufficient for
SRAC to maintain such Fixed Charge Coverage Ratio and (ii) as long as SRAC
is so required to cause Sears to maintain such ownership of SRAC, Sears will
maintain such ownership. The Indenture provides that SRAC (i) will cause
Sears to observe and perform in all material respects all covenants or
agreements of Sears contained in the Fixed Charge Coverage and Ownership
Agreement and (ii) will not amend, waive, terminate or otherwise modify any
provision of the Fixed Charge Coverage and Ownership Agreement. (Sections
1.1, 3.6)
Defaults
The following are defaults with respect to any series of Debt Securities:
(a) failure to pay the principal amount (and premium, if any) on such
series when due and payable; (b) failure to pay any interest on such series
when due, continued for 30 days (unless the entire amount of such payment
is deposited by SRAC with the Trustee or with a paying agent prior to the
expiration of 30 days); (c) failure to perform any other covenant of SRAC
in the Indenture (other than a covenant included in the Indenture solely
for the benefit of any series of Debt Securities other than that series),
continued for 60 days after written notice; (d) acceleration of
$100,000,000 or more in principal amount of indebtedness for borrowed money
of SRAC (including acceleration with respect to Debt Securities other than
that series) or Sears under the terms of the instrument under which such
indebtedness is issued or secured (including the Indenture), if such
indebtedness shall not have been discharged or such acceleration is not
annulled within 30 days after written notice or prior to the time principal
owed on the outstanding Debt Securities of that series shall be declared
due and payable, except as a result of compliance with applicable laws,
orders or decrees; and (e) certain events of bankruptcy, insolvency, or
reorganization. In addition, a particular series of Debt Securities may
provide for additional events of default, as may be described in the
Prospectus Supplement. If a default shall occur and be continuing with
respect to any series of Debt Securities, the Trustee or the Holders of a
majority in principal amount of the outstanding Debt Securities of that
series may declare the principal amount of such series (or, if the Debt
Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that
series) due and payable immediately, which declaration may, in certain
instances, be annulled by the Holders of a majority of the principal amount
of outstanding Debt Securities of that series. In the case of such
declaration, there would become due and payable such principal amount plus
any accrued interest or other periodic payments. (Section 6.1)
No Holder of any Debt Security of any series will have any right to
institute any proceeding with respect to the Indenture or for any remedy
thereunder, unless such Holder previously shall have given to the Trustee
written notice of a default and unless also the Holders of a majority of
the principal amount of outstanding Debt Securities of that series shall
have made written request upon the Trustee, offering reasonable indemnity,
to institute such proceeding as Trustee, and the Trustee shall have
neglected or refused to institute such proceeding within a reasonable time.
However, the right of any Holder of any Debt Security of that series to
enforce the payment of principal and interest on such Debt Security, on or
after the due dates expressed in such Debt Security, may not be impaired or
affected. (Section 6.7)
SRAC is required to furnish annually to the Trustee statements as to the
performance or fulfillment of its covenants, agreements or conditions in
the Indenture and as to the absence of default. (Section 3.4)
Modification or Amendment of the Indenture
Modifications and alterations of the Indenture may be made by SRAC with the
consent of the Holders of a majority of the aggregate principal amount of
the outstanding Debt Securities of each series affected by the modification
or alteration, provided that no such change shall be made without the
consent of the Holders of each Debt Security then outstanding affected
thereby which will (a) permit the extension of the time of payment of any
payment on any such Debt Security, or a reduction in any such payment or
(b) reduce the above-stated percentage of Holders of any series of Debt
Securities whose consent is required to modify or alter the Indenture.
(Article XI)
Defeasance
Unless otherwise provided for in the accompanying Prospectus Supplement,
SRAC may discharge the Indenture with respect to Debt Securities of any
series (except for certain obligations to register the transfer or exchange
of Debt Securities of such series, replace mutilated, destroyed, lost and
stolen Debt Securities of such series, maintain paying agencies and hold
moneys for payment in trust) upon the deposit with the Trustee or a paying
agent, in trust, of (1) money in an amount sufficient, or (2) U.S.
Government Obligations (if the Debt Securities are denominated in U.S.
dollars) or Eligible Obligations (if the Debt Securities are denominated in
a Foreign Currency) which through the payment of interest and principal in
respect thereof in accordance with their terms will provide money in an
amount sufficient, or (3) any combination thereof in an amount sufficient,
to pay the principal, premium, if any, and each installment of interest on
the Debt Securities of such series on the dates such payments are due in
accordance with the terms of the Indenture and such Debt Securities. Such a
trust may only be established if, among other things, SRAC has received a
ruling from the Internal Revenue Service or an opinion of recognized
counsel who is not an employee of SRAC, in either case to the effect that,
among other things, the Holders of the Debt Securities of such series will
not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and defeasance of the Indenture and will be subject
to federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit and defeasance had
not occurred. Notwithstanding such deposit, the obligations of SRAC under
the Indenture to pay interest and principal shall remain in full force and
effect until the Debt Securities of such series have been paid in full.
(Section 13.4)
If and when a ruling from the Internal Revenue Service or an opinion of
recognized counsel can be provided without reliance upon the continuation
of SRAC's obligations regarding the payment of interest and principal, then
such obligations of SRAC shall cease upon delivery to the Trustee of such
ruling or opinion and compliance with the other conditions precedent
provided for in the Indenture. Under present ruling positions of the
Internal Revenue Service, such a ruling is not obtainable. (Section 13.4)
Regarding the Trustee
The Chase Manhattan Bank, N.A., which SRAC anticipates will be the Trustee
under an Indenture, performs other services for SRAC.
PLAN OF DISTRIBUTION
General. SRAC may sell Debt Securities to or through underwriters, and
also may sell Debt Securities directly to other purchasers or through
agents. It is anticipated that SRAC will offer Debt Securities directly to
brokers or dealers, investment companies, insurance companies, banks,
savings and loan associations, trust companies or similar institutions, and
trusts for which a bank, savings and loan association, trust company or
investment adviser is the trustee or authorized to make investment
decisions.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The
Prospectus Supplement will describe the method of distribution of the
Offered Debt Securities.
In connection with the sale of Debt Securities, underwriters may receive
compensation from SRAC or from purchasers of Debt Securities for whom they
may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Debt Securities to or through dealers, and such
dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers
for whom they may act as agent. Underwriters, dealers and agents that
participate in the distribution of Debt Securities may be deemed to be
underwriters, and any discounts or commissions received by them and any
profit on the resale of Debt Securities by them may be deemed to be
underwriting discounts and commissions, under the Act. Any such underwriter
or agent will be identified, and any such compensation will be described,
in the Prospectus Supplement.
Under agreements which may be entered into by SRAC, underwriters, dealers
and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by SRAC against certain liabilities, including
liabilities under the Act.
Delayed Delivery Arrangements. If so indicated in the Prospectus
Supplement, SRAC will authorize dealers or other persons acting as SRAC
agents to solicit offers by certain institutions to purchase Debt
Securities from SRAC pursuant to contracts providing for payment and
delivery on a future date. Institutions with which such contracts may be
made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and
others, but in all cases such institutions must be approved by SRAC. The
obligations of any purchaser under any such contract will not be subject to
any conditions except that (i) the purchase of the Offered Debt Securities
shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject, and (ii) if the Offered
Debt Securities are also being sold to underwriters, SRAC shall have sold
to such underwriters the Offered Debt Securities not sold for delayed
delivery. The dealers and such other persons will not have any
responsibility in respect of the validity or performance of such contracts.
Deferred Pricing Arrangements. The Prospectus Supplement relating to an
issue of Debt Securities will disclose any deferred pricing arrangement
between SRAC and any entity acting as an underwriter which would permit
SRAC to determine its ultimate cost of funds pertaining to such Debt
Securities at a later date through certain transactions indexed to U.S.
Treasury securities. Any such arrangement would be made pursuant to a
deferred pricing agreement signed simultaneously with the pricing agreement
which supplements the underwriting agreement. The deferred pricing
agreement would contain the formula used to determine any post-closing
purchase price adjustments.
LEGAL OPINION
The legality of the Debt Securities is being passed upon for SRAC by Robert
J. Pence, Senior Counsel, Corporate Law Department, of Sears. At April 15,
1995, Mr. Pence owned 411 Sears common shares, including shares credited to
his account in The Savings and Profit Sharing Fund of Sears Employees as of
March 31, 1995, and had options granted under the Plans relating to 1,980
shares.
EXPERTS
The financial statements and Summary Financial Information incorporated by
reference and included in this prospectus, respectively, have been audited
by Deloitte & Touche LLP, independent certified public accountants, as
stated in their reports incorporated by reference herein (which reports
express unqualified opinions and, with respect to Sears and consolidated
subsidiaries, includes an explanatory paragraph referring to Sears and
consolidated subsidiaries changing its method of accounting for
postretirement benefits in 1992), and with respect to the Summary Financial
Information has been included as Exhibit 99 to the Registration Statement.
Such financial statements and Summary Financial Information have been
incorporated by reference and included herein, respectively, in the
Registration Statement in reliance upon the reports of such firm and given
upon their authority as experts in accounting and auditing.
With respect to the unaudited interim financial information which is
incorporated herein by reference, Deloitte & Touche LLP have applied
limited procedures in accordance with professional standards for a review
of such information. However, as stated in their reports included in the
Quarterly Reports on Form 10-Q for the quarters ended March 31 and April 1,
1995 for SRAC and Sears, respectively and incorporated by reference herein,
they did not audit and they did not express an opinion on that interim
financial information. Accordingly, the degree of reliance on their reports
on such information should be restricted in light of the limited nature of
the review procedures applied. Deloitte & Touche LLP are not subject to the
liability provisions of Section 11 of the Securities Act of 1933 for their
reports on the unaudited interim financial information because those
reports are not ``reports'' or a ``part'' of the registration statement
prepared or certified by an accountant within the meaning of Sections 7 and
11 of the Act.
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
S.E.C. Registration Fee $1,034,482.76
Rating Agency Fee 333,000.00*
State Qualification Expense (including legal fees) 40,000.00*
Trustee's Fees 9,000.00*
Printing and Engraving 90,000.00*
Legal Fees 80,000.00*
Auditors' Fees 50,000.00*
Miscellaneous 13,517.24*
Total $1,650,000.00*
* Estimated
Item 15. Indemnification of Officers and Directors.
SRAC is a Delaware corporation. Section 145 of the General Corporation Law
of the State of Delaware (``GCL'') provides that a Delaware corporation has
the power to indemnify its officers and directors in certain circumstances.
Subsection (a) of Section 145 of the GCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the corporation), against expenses (including attorney's fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred in
connection with such action, suit or proceeding provided that such director
or officer acted in good faith in a manner reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, provided that such director or officer
had no cause to believe his or her conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment
in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses actually and reasonably
incurred in connection with the defense or settlement of such action or
suit provided that such director or officer acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of
the corporation, except that no indemnification may be made in respect of
any claim, issue or matter as to which such director or officer shall have
been adjudged to be liable for negligence or misconduct in the performance
of his or her duty to the corporation unless and only to the extent that
the Court of Chancery or the court in which such action was brought shall
determine that despite the adjudication of liability such director or
officer is fairly and reasonably entitled to indemnity for such expenses
which the court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith; that indemnification provided for by
Section 145 shall not be deemed exclusive of any other rights to which the
indemnified party may be entitled; and empowers the corporation to purchase
and maintain insurance on behalf of a director or officer of the
corporation against any liability asserted against him or her or incurred
by him or her in any such capacity or arising out of his or her status as
such whether or not the corporation would have the power to indemnify him
or her against such liabilities under Section 145.
Article 11 of SRAC's Certificate of Incorporation provides for
indemnification of SRAC's officers and directors to the fullest extent
permitted by applicable law.
Certain directors of SRAC are also officers of Sears, a New York
corporation. Sections 721 through 724 of the New York Business Corporation
Law (``BCL'') provide that in certain circumstances a corporation may
indemnify directors and officers against judgments, fines, amounts paid in
settlement and reasonable expenses, including attorneys' fees, actually and
necessarily incurred as a result of any action or proceeding by it or in
the right of any other corporation which such directors or officers served
in any capacity at the request of Sears, if such director or officer acted,
in good faith, for a purpose which he or she reasonably believed not to be
opposed to, the best interests of SRAC and, in criminal actions or
proceedings, had no reasonable cause to believe that his conduct was
unlawful; provided, however, that no indemnification may be provided where
a person had been adjudged to have acted in bad faith or to have engaged in
active and deliberate dishonesty and were material to the cause of action
adjudicated, or to have gained a financial profit or other advantage to
which he or she was not legally entitled. A corporation is required to
indemnify against reasonable expenses (including attorneys' fees) any
director or officer who successfully defends any such actions. The
foregoing statements are subject to the detailed provisions of the BCL.
Article V of the by-laws of Sears provides that Sears shall indemnify to
the full extent permitted by law, any person made, or threatened to be
made, a party to, or who is otherwise involved in, any action, suit or
proceeding whether civil, criminal, administrative or investigative, by
reason of the fact that such person or his testator or intestate, while a
director or officer of Sears and at the request of Sears, is or was serving
another corporation in any capacity, against judgments, fines, amounts paid
in settlement and all expenses, including attorneys' fees, actually
incurred as a result of such action. Article V states that the
indemnification benefits provided thereby are contract rights, enforceable
as if set forth in a written contract.
Sears has in effect insurance policies in the amount of $100 million
covering all of Sears and SRAC's directors and officers in certain
instances where by law they may not be indemnified by Sears or SRAC.
The form of Underwriting Agreement and the form of Distribution Agreement,
filed as Exhibits 1(a) and 1(b) hereto, respectively, and incorporated
herein by reference, contain certain provisions relating to
indemnification.
Item 16. Exhibits.
1(a) Form of Underwriting Agreement.*
1(b) Form of Distribution Agreement.*
4(a) Form of Indenture.**
4(b) Fixed Charge Coverage and Ownership Agreement dated as of May 15,
1995 between Sears Roebuck Acceptance Corp. and Sears, Roebuck
and Co.**
5 Opinion of Robert J. Pence.**
12(a) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31, 1994
(incorporated by reference to Exhibit 12 to registrant's Annual
Report on Form 10-K for the year ended December 31, 1994, File
No. 1-4040).
12(b) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31, 1993
(incorporated by reference to Exhibit 12 to registrant's Annual
Report on Form 10-K for the year ended December 31, 1993, File
No. 1-4040).
12(c) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31, 1992
(incorporated by reference to Exhibit 12 to registrant's Annual
Report on Form 10-K for the year ended December 31, 1992, File
No. 1-4040).
12(d) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31, 1991
(incorporated by reference to Exhibit 12 to registrant's Annual
Report on Form 10-K for the year ended December 31, 1991, File
No. 1-4040).
12(e) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31, 1990
(incorporated by reference to Exhibit 12 to registrant's Annual
Report on Form 10-K for the year ended December 31, 1990, File
No. 1-4040).
12(f) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the three-month period ended March
31, 1995 (incorporated by reference to Exhibit 12 to registrant's
Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1995, File No. 1-4040).
12(g) Calculation of Ratio of Income to Fixed Charges for Sears,
Roebuck and Co. and consolidated subsidiaries for each of the
five years ended December 31, 1994, and for the twelve- and
three-month periods ended April 1, 1995 (incorporated by
reference to Exhibit 12 to Sears Quarterly Report on Form 10-Q
for the quarterly period ended April 1, 1995, File No. 1-416).
15(a) Acknowledgement of awareness from Deloitte & Touche LLP
concerning unaudited interim financial information (Sears Roebuck
Acceptance Corp.) (incorporated by reference to Exhibit 15 to
registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1995, File No. 1-4040).
15(b) Acknowledgement of awareness from Deloitte & Touche LLP
concerning unaudited interim financial information (Sears,
Roebuck and Co.).**
23(a) Consent of Deloitte & Touche LLP (Sears Roebuck Acceptance
Corp.).**
23(b) Consent of Deloitte & Touche LLP (Sears, Roebuck and Co.).**
23(c) Consent of Robert J. Pence (included in Exhibit 5).
24(a) Power of Attorney of certain officers and directors of the
Registrant.*
24(b) Power of Attorney of certain officers and directors of the
Co-Registrant.*
26 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939, as amended.**
99 Report of Independent Certified Public Accountants.**
* Previously filed.
** Filed herewith.
Item 17. Undertakings
The undersigned registrant and co-registrant hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (i) and (ii) shall not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant or co-registrant pursuant to section 13 or section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant and co-registrant hereby undertake that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's or co-registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant or co-registrant pursuant to the provisions described in
this registration statement above, or otherwise, the registrant and the
co-registrant have been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant or co-registrant in the successful
defense of any action, suit or proceeding) is asserted against the
registrant or co-registrant by such director, officer or controlling person
in connection with the securities being registered, the registrant or
co-registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
and co-registrant certify that they have reasonable grounds to believe that
they meet all of the requirements for filing on Form S-3 and have duly
caused this amendment to the registration statement to be signed on their
behalf by the undersigned, thereunto duly authorized, in Greenville, State
of Delaware, and the City of Chicago, State of Illinois, respectively, on
the 19th day of May, 1995.
SEARS ROEBUCK ACCEPTANCE CORP.
By KEITH E. TROST*
Keith E. Trost
President
SEARS, ROEBUCK AND CO.
By ALICE M. PETERSON**
Alice M. Peterson
Vice President and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this amendment
to the registration statement has been signed below by the following
persons in the capacities and on the date indicated.
Signature Title Date
KEITH E. TROST* Director and President
of Sears Roebuck Acceptance
Corp. (Principal
Executive Officer)
/s/ STEPHEN D. CARP Vice President, Finance and
Assistant Secretary of
Sears Roebuck Acceptance
Corp. (Principal Financial
and Accounting Officer)
JAMES A. BLANDA* Director of Sears Roebuck
Acceptance Corp.
JAMES D. CONSTANTINE* Director of Sears Roebuck
Acceptance Corp.
ALICE M. PETERSON** Director of Sears Roebuck
Acceptance Corp.
LARRY R. RAYMOND* Director of Sears Roebuck
Acceptance Corp.
GEORGE F. SLOOK* Director of Sears Roebuck
Acceptance Corp.
EDWARD A. BRENNAN** Director, Chairman of the
Board of Directors,
President and Chief
Executive Officer
of Sears, Roebuck and
Co. (Principal Executive
Officer)
[RIGHT BRACE]
May 19, 1995
JAMES M. DENNY** Vice Chairman and Acting
Chief Financial Officer of
Sears, Roebuck and Co.
(Principal Financial
Officer)
JAMES A. BLANDA** Vice President and Controller
of Sears, Roebuck and Co.
(Principal Accounting
Officer)
HALL ADAMS, JR.** Director of Sears, Roebuck
and Co.
WARREN L. BATTS** Director of Sears, Roebuck
and Co.
JAMES W. COZAD ** Director of Sears, Roebuck
and Co.
WILLIAM E. LAMOTHE** Director of Sears, Roebuck
and Co.
ARTHUR C. MARTINEZ** Director of Sears, Roebuck
and Co.
MICHAEL A. MILES** Director of Sears, Roebuck
and Co.
SYBIL C. MOBLEY** Director of Sears, Roebuck
and Co.
NANCY C. REYNOLDS** Director of Sears, Roebuck
and Co.
CLARENCE B. ROGERS, JR.** Director of Sears, Roebuck
and Co.
DONALD H. RUMSFELD** Director of Sears, Roebuck
and Co.
*By /s/ KEITH E. TROST Individually and as Attorney-in-fact
Keith E. Trost
**By /s/ ALICE M. PETERSON Individually and as Attorney-in-fact
Alice M. Peterson
Registration No. 33-58139
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
to
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
SEARS ROEBUCK ACCEPTANCE CORP.
EXHIBIT INDEX
Exhibit Description
1(a) Form of Underwriting Agreement.*
1(b) Form of Distribution Agreement.*
4(a) Form of Indenture.**
4(b) Fixed Charge Coverage and Ownership Agreement dated as of
May 15, 1995 between Sears Roebuck Acceptance Corp. and
Sears, Roebuck and Co.**
5 Opinion of Robert J. Pence.**
12(a) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31,
1994 (incorporated by reference to Exhibit 12 to
registrant's Annual Report on Form 10-K for the year ended
December 31, 1994, File No. 1-4040).
12(b) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31,
1993 (incorporated by reference to Exhibit 12 to
registrant's Annual Report on Form 10-K for the year ended
December 31, 1993, File No. 1-4040).
12(c) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31,
1992 (incorporated by reference to Exhibit 12 to
registrant's Annual Report on Form 10-K for the year ended
December 31, 1992, File No. 1-4040).
12(d) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31,
1991 (incorporated by reference to Exhibit 12 to
registrant's Annual Report on Form 10-K for the year ended
December 31, 1991, File No. 1-4040).
12(e) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the year ended December 31,
1990 (incorporated by reference to Exhibit 12 to
registrant's Annual Report on Form 10-K for the year ended
December 31, 1990, File No. 1-4040).
12(f) Calculation of Ratio of Earnings to Fixed Charges for Sears
Roebuck Acceptance Corp. for the three-month period ended
March 31, 1995 (incorporated by reference to Exhibit 12 to
registrant's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1995, File No. 1-4040).
12(g) Calculation of Ratio of Income to Fixed Charges for Sears,
Roebuck and Co. and consolidated subsidiaries for each of
the five years ended December 31, 1994, and for the twelve-
and three-month periods ended April 1, 1995 (incorporated by
reference to Exhibit 12 to Sears Quarterly Report on Form
10-Q for the quarterly period ended April 1, 1995, File No.
1-416).
15(a) Acknowledgement of awareness from Deloitte & Touche LLP
concerning unaudited interim financial information (Sears
Roebuck Acceptance Corp.) (incorporated by reference to
Exhibit 15 to registrant's Quarterly Report on Form 10-Q for
the quarterly period ended March 31, 1995, File No. 1-4040).
15(b) Acknowledgement of awareness from Deloitte & Touche LLP
concerning unaudited interim financial information (Sears,
Roebuck and Co.).**
23(a) Consent of Deloitte & Touche LLP (Sears Roebuck Acceptance
Corp.).**
23(b) Consent of Deloitte & Touche LLP (Sears, Roebuck and Co.).**
23(c) Consent of Robert J. Pence (included in Exhibit 5).
24(a) Power of Attorney of certain officers and directors of the
Registrant.*
24(b) Power of Attorney of certain officers and directors of the
Co-Registrant.*
26 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended.**
99 Report of Independent Certified Public Accountants.**
* Previously filed.
** Filed herewith.
SEARS ROEBUCK ACCEPTANCE CORP.
AND
Trustee
Indenture
Dated as of
SEARS ROEBUCK ACCEPTANCE CORP.
INDENTURE
dated as of
TABLE OF CONTENTS*
*This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
PAGE
PARTIES 1
RECITALS 1
ARTICLE I
DEFINITIONS OF CERTAIN TERMS
SECTION 1.1. Definitions I-1
Affiliate I-1
Authenticating Agent I-1
Board I-1
Business Day I-1
Certified Resolution I-1
Commission I-1
Company I-1
Currency I-1
Defaulted Interest I-1
Depository I-1
Dollar I-2
ECU I-2
Eligible Obligations I-2
European Communities I-2
Fixed Charge Coverage and Ownership Agreement I-2
Fixed Charge Coverage Ratio I-2
Foreign Currency I-2
Global Security I-2
Holder I-2
Indenture I-3
Interest I-3
Market Exchange Rate I-3
Maturity I-3
{New York Location I-3}
Officers' Certificate I-3
Opinion of Counsel I-4
Original Issue Discount Security I-4
Outstanding I-4
Person I-4
Redemption Date I-4
Redemption Price I-4
Regular Record Date I-4
Responsible Officer I-5
Sears I-5
Securities I-5
Security Register I-5
Special Record Date I-5
Stated Maturity I-5
Subsidiary; Voting Stock I-5
Trustee I-5
U.S. Government Obligations I-6
SECTION 1.2. Trust Indenture Act definitions controlling I-6
ARTICLE II
THE SECURITIES
SECTION 2.1. Amount Unlimited; Issuable in Series; Forms
Generally; Form of Trustee's Certificate of
Authentication II-1
SECTION 2.2. Denominations II-3
SECTION 2.3. Execution, Authentication, Delivery and Dating II-3
SECTION 2.4. Temporary Securities II-4
SECTION 2.5. Registration, Registration of Transfer and Exchange II-4
SECTION 2.6. Mutilated, Destroyed, Lost and Stolen Securities II-5
SECTION 2.7. Payment of Interest; Interest Rights Preserved II-5
SECTION 2.8. Persons Deemed Owners II-6
SECTION 2.9. Cancellation II-7
SECTION 2.10. Securities Issuable as a Global Security II-7
SECTION 2.11. Currency of Payments in Respect of Securities II-7
SECTION 2.12. Availability of Currency of Payment in Respect
of Securities II-8
ARTICLE III
COVENANTS OF THE COMPANY
SECTION 3.1. Payment of principal and interest III-1
SECTION 3.2. Maintenance of office or agency for notices and
demands III-1
SECTION 3.3. File certain reports and information with the
Trustee and the Securities and Exchange Commission III-1
Transmit to Holders summaries of certain documents
filed with the Trustee III-2
Furnish list of Holders to the Trustee III-2
SECTION 3.4. File statement by officers annually with the
Trustee III-2
SECTION 3.5. Duties of paying agent III-2
SECTION 3.6. Certain restrictions III-3
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 4.1. Applicability of Article IV-1
SECTION 4.2. Election to Redeem; Notice to Trustee IV-1
SECTION 4.3. Selection by Trustee of Securities to Be Redeemed IV-1
SECTION 4.4. Notice of Redemption IV-1
SECTION 4.5. Deposit of Redemption Price IV-2
SECTION 4.6. Securities Payable on Redemption Date IV-2
SECTION 4.7. Securities Redeemed in Part IV-2
ARTICLE V
SINKING FUNDS
SECTION 5.1. Applicability of Article V-1
SECTION 5.2. Satisfaction of Sinking Fund Payments with
Securities V-1
SECTION 5.3. Redemption of Securities for Sinking Fund V-1
ARTICLE VI
REMEDIES UPON DEFAULT
SECTION 6.1. Defaults defined-acceleration of maturity upon
default-waiver of default VI-1
SECTION 6.2. Covenant of Company to pay to Trustee whole amount
due on default in payment of principal or interest-
Trustee may recover judgment for whole amount
due-application of moneys received by the Trustee VI-2
SECTION 6.3. Trustee may enforce rights of action without
possession of Securities VI-4
SECTION 6.4. Delays or omissions not to impair any rights or
powers accruing upon default VI-4
SECTION 6.5. In event of default Trustee may protect and enforce
its rights by appropriate proceedings-holders of a
majority in principal amount of Securities of a
particular series may waive default VI-4
SECTION 6.6. Holders of a majority in principal amount of
Securities of a particular series may direct
exercise of remedies VI-5
SECTION 6.7. Limitation on suits by Holders VI-5
SECTION 6.8. No Securities owned or held by or for the account
of the Company to be deemed outstanding for
purpose of payment or distribution VI-5
SECTION 6.9. Company and Trustee restored to former position on
discontinuance or abandonment of proceedings VI-6
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.1. Evidence of action by Holders VII-1
SECTION 7.2. Proof of execution of instruments and holding of
Securities VII-1
SECTION 7.3. Who may be deemed owners of Securities VII-1
SECTION 7.4. Securities owned by Company or its affiliates
disregarded for certain purposes VII-2
SECTION 7.5. Action by Holders binds future Holders VII-2
ARTICLE VIII
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 8.1. No recourse against incorporators or others VIII-1
ARTICLE IX
MERGER, CONSOLIDATION OR SALE
SECTION 9.1. Merger, consolidation, sale or conveyance of
property not prohibited except under certain
conditions-execution of supplemental indenture IX-1
SECTION 9.2. Rights and duties of successor corporation IX-1
Issuance of Securities by successor corporation IX-1
SECTION 9.3. Opinion of Counsel to Trustee IX-1
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.1. Acceptance of Trust X-1
Trustee not relieved from liability for negligence
or misconduct X-1
Trustee not responsible for validity or execution
of Indenture or of Securities or for recitals in
Indenture or Securities X-1
Trustee may rely upon documents believed genuine-may
consult with counsel-may accept officers'
certificates-may require indemnity-not to be liable
for action taken in good faith X-2
Prior to default and after curing of defaults
Trustee not bound to investigate unless requested
by Holders of majority in principal amount of
Securities of a series-may require indemnification X-2
Trustee may execute trusts or powers directly or by
attorneys X-2
SECTION 10.2. Trustee to be entitled to compensation-Trustee not
to be accountable for application of proceeds-
moneys held by Trustee to be trust funds X-2
SECTION 10.3. Trustee to give Holders notice of default X-3
SECTION 10.4. Trustee acquiring conflicting interest must
eliminate it or resign; Definition of conflicting
interest; Definition of certain terms X-3
Calculation of percentages of securities X-6
SECTION 10.5. Eligibility of Trustee X-7
SECTION 10.6. Resignation or removal of Trustee X-8
SECTION 10.7. Acceptance by successor Trustee X-8
SECTION 10.8. Successor to Trustee by merger or consolidation X-9
SECTION 10.9. Limitations on right of Trustee as a creditor to
obtain payment of certain claims X-9
SECTION 10.10. Trustee to make annual report to Holders X-12
Trustee to make other reports to Holders X-13
Holders to whom reports to be transmitted X-13
SECTION 10.11. Preservation of information by Trustee X-13
Trustee to give certain information to Holders
upon application X-13
SECTION 10.12. Trustee or an Authenticating Agent may hold
Securities and otherwise deal with Company X-14
SECTION 10.13. Trustee may comply with any rule, regulation or
order of the Securities and Exchange Commission X-14
SECTION 10.14. Authenticating Agent X-15
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1. Purposes for which supplemental indentures may be
entered into without consent of Holders XI-1
SECTION 11.2. Modification of Indenture with consent of Holders
of a majority in principal amount of Securities
of any series XI-1
SECTION 11.3. Effect of supplemental indentures XI-2
SECTION 11.4. Securities may bear notation of changes XI-2
SECTION 11.5. Trustee may rely upon Opinion of Counsel XI-3
SECTION 11.6. Instruments of further assurance XI-3
ARTICLE XII
MEETINGS OF HOLDERS
SECTION 12.1. Purposes for which meetings may be called XII-1
SECTION 12.2. Manner of calling meetings XII-1
SECTION 12.3. Call of meetings by Company or Holders XII-1
SECTION 12.4. Who may attend and vote at meetings XII-1
SECTION 12.5. Regulations may be made by Trustee-conduct of the
meeting-voting rights-adjournment XII-2
SECTION 12.6. Manner of voting at meetings and record to be kept XII-2
SECTION 12.7. Exercise of rights of Trustee or Holders may not
be hindered or delayed by call of meeting of
Holders XII-3
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
OR CERTAIN OBLIGATIONS
SECTION 13.1. Satisfaction and discharge of Indenture XIII-1
SECTION 13.2. Deposits for payment or redemption of Securities
to be held in trust XIII-1
SECTION 13.3. Repayment of moneys held by Trustee; Repayment of
moneys held by paying agent XIII-2
SECTION 13.4. Defeasance of Securities of any series XIII-2
SECTION 13.5. Application of Trust Money XIII-3
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Rights under Indenture limited to the parties
and Holders of Securities XIV-1
SECTION 14.2. Certificate of independent accountants conclusive XIV-1
SECTION 14.3. Remaining provisions not affected by invalidity of
any other provisions-required provisions of Trust
Indenture Act of 1939, as amended, to control XIV-1
SECTION 14.4. Company released from Indenture requirements if
entitled to have Indenture cancelled XIV-1
SECTION 14.5. Date of execution XIV-1
SECTION 14.6. Officers' certificates and Opinions of Counsel to
be furnished Trustee XIV-1
SECTION 14.7. Payments and deposits due other than on a
Business Day XIV-2
SECTION 14.8. Presentation of notices and demands XIV-2
SECTION 14.9. Successors and assigns bound by Indenture XIV-2
SECTION 14.10. Descriptive headings for convenience only XIV-2
SECTION 14.11. Indenture may be executed in counterparts XIV-2
SECTION 14.12. Controlling law XIV-2
TESTIMONIUM XIV-3
SIGNATURES AND SEALS XIV-3
ACKNOWLEDGMENTS XIV-4
SEARS ROEBUCK ACCEPTANCE CORP.
Reconciliation and Tie between Indenture
dated as of
and
Trust Indenture Act of 1939, as amended
Trust Indenture Act Section Indenture Section
310(a)(1) 10.5
(a)(2) 10.5
(a)(3) Not applicable
(a)(4) Not applicable
(a)(5) 10.5
(b) 10.4, 10.5
(c) Not applicable
311(a) 10.9 (a), (c)
(b) 10.9 (b)
(c) Not applicable
312(a) 3.3 (d), 10.11
(b) 10.11
(c) 10.11
313(a) 10.10 (a)
(b)(1) Not applicable
(b)(2) 10.10 (b)
(c) 10.10 (c)
(d) 10.10 (c)
314(a)(1) 3.3 (a)
(a)(2) 3.3 (b)
(a)(3) 3.3 (c)
(a)(4) 3.4
(b) Not applicable
(c) 14.6
(d) Not applicable
(e) 14.6
(f) Not required
315(a)(1) 10.1 (a), (b)
(a)(2) 10.1 (a), (b), (d)
(b) 10.3
(c) 10.1 (a)
(d) 10.1 (a), (b)
(e) 6.7
316(a)(1A) 6.6
(a)(1B) 6.5
(a)(2) Not required
(b) 6.7
(c) 7.1
317(a)(1) 6.2
(a)(2) 6.2
(b) 3.5
318(a) 14.3
Note: This reconciliation and tie shall not, for any purpose,
be deemed to be a part of the Indenture.
INDENTURE, dated as of the day of , between SEARS
ROEBUCK ACCEPTANCE CORP. (hereinafter called the ``Company''), a
corporation organized and existing under the laws of the State of Delaware,
and (hereinafter called the ``Trustee''), a
organized and existing under the laws of
, as Trustee:
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
``Securities''), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal
and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE I
DEFINITIONS OF CERTAIN TERMS
SECTION 1.1. Unless the context otherwise requires, the terms defined in
this Article I shall for all purposes of this Indenture and of any
indenture supplemental hereto have the meaning herein specified, the
following definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
Affiliate
An ``Affiliate'' of a specified Person shall mean another Person directly
or indirectly controlling or controlled by or under direct or indirect
common control with such first Person.
Authenticating Agent
The term ``Authenticating Agent'' shall mean any Authenticating Agent
appointed by the Trustee pursuant to Section 10.14.
Board
The term ``Board'' or ``Board of Directors'' shall mean the Board of
Directors of the Company or the Executive Committee of such Board.
Business Day
The term ``Business Day'' shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a legal holiday for banking institutions
in any of the City of Wilmington, the City of Chicago, The City of New York
or the city in which the principal corporate trust office of the Trustee is
located.
Certified Resolution
The term ``Certified Resolution'' shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification.
Commission
The term ``Commission'' shall mean the Securities and Exchange Commission.
Company
The term ``Company'' shall mean Sears Roebuck Acceptance Corp. and, subject
to the provisions of Article IX, shall also include its successors and
assigns.
Currency
The term ``Currency'' shall mean Dollars or Foreign Currency.
Defaulted Interest
The term ``Defaulted Interest'' shall have the meaning specified in Section
2.7.
Depository
The term ``Depository'' shall mean, with respect to Securities of any
series for which the Company shall determine that such Securities will be
issued in whole or in part as one or more Global Securities, The Depository
Trust Company, New York, New York, another clearing agency or any successor
registered under the Securities Exchange Act of 1934, as amended, or other
applicable statute or regulation, which, in each case, shall be designated
by the Company pursuant to either Section 2.1 or 2.10.
Dollar
The term ``Dollar'' shall mean the currency issued by the government of the
United States.
ECU
The term ``ECU'' shall mean the European Currency Unit as defined and
revised from time to time by the Council of the European Communities.
Eligible Obligations
The term ``Eligible Obligations'' shall mean obligations as a result of the
deposit of which (along with the simultaneous deposit, if any, of money or
U.S. Government Obligations or both) the relevant series of Securities will
be rated in the highest generic long term debt rating category assigned by
one or more nationally recognized rating agencies to debt with respect to
which the issuer thereof has been released from its obligations to the same
extent that the Company has been released from its obligations under this
Indenture pursuant to Section 13.4 hereof.
European Communities
The term ``European Communities'' shall mean the European Economic
Community, the European Coal and Steel Community and the European Atomic
Energy Community.
Fixed Charge Coverage and Ownership Agreement
The term ``Fixed Charge Coverage and Ownership Agreement'' shall mean the
letter agreement between the Company and Sears dated May 15, 1995.
Fixed Charge Coverage Ratio
The term ``Fixed Charge Coverage Ratio'' shall mean, for any period, the
Company's ratio of earnings to fixed charges, determined for such period in
accordance with Item 503(d) of Regulation S-K promulgated by the
Commission, as in effect on the date hereof.
Foreign Currency
The term ``Foreign Currency'' shall mean either (i) a currency issued by
the government of any country other than the United States or (ii) ECU's or
another composite currency the value of which is determined by reference to
the values of the currencies of any group of countries.
Global Security
The term ``Global Security'' shall mean, with respect to any series of
Securities, a Security executed by the Company and authenticated and held
by the Trustee as agent for the Depository or delivered pursuant to the
Depository's instruction, all in accordance with this Indenture and
pursuant to a Company order, which (i) shall be registered in the name of
the Depository or its nominee and (ii) shall constitute, and shall be
denominated in an amount equal to the aggregate principal amount of, all or
part of the Outstanding Securities of such series.
Holder
The terms ``Holder'', ``Holder of Securities'' or other similar terms,
shall mean the person in whose name a particular Security shall be
registered on the books of the Company kept for that purpose in accordance
with the terms hereof, and the word ``majority'', used in connection with
the terms ``Holder'', ``Holder of Securities'', or other similar terms,
shall signify the ``majority in principal amount'' whether or not so
expressed.
Indenture
The term ``Indenture'' shall mean this instrument as originally executed
or, if amended or supplemented as herein provided, as so amended or
supplemented, and shall include the terms of particular series of
Securities established as contemplated by Section 2.1.
Interest
The term ``Interest'', when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity.
Interest Payment Date
The term ``Interest Payment Date'', when used with respect to any Security,
shall mean the Stated Maturity of any installment of interest on the
Security.
Market Exchange Rate
The ``Market Exchange Rate'' on a given date for a given foreign currency
shall mean the noon buying rate in New York City for cable transfers in
such currency as certified for customs purposes by the Federal Reserve Bank
of New York on such date; provided, however, that in the case of European
Currency Units, Market Exchange Rate shall mean the rate of exchange
determined by the Council of European Communities (or any successor
thereto) as published on such date or the most recently available date in
the Official Journal of the European Communities (or any successor
publication).
Maturity
The term ``Maturity'', when used with respect to any Security, shall mean
the date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided, whether at
Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
{New York Location
The Term ``New York Location'' shall mean the location in the Borough of
Manhattan of The City of New York at which at any particular time the
Trustee receives and redelivers securities pursuant to applicable
securities exchange rules, which location at the date of execution of this
Indenture is .}
Officers' Certificate
The term ``Officers' Certificate'' shall mean a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President or any
Vice President and by the Vice President, Finance, Treasurer or any
Assistant Treasurer or the Secretary or any Assistant Secretary of the
Company.
Opinion of Counsel
The term ``Opinion of Counsel'' shall mean an opinion in writing signed by
legal counsel (who may be counsel to the Company) acceptable to the
Trustee.
Original Issue Discount Security
The term ``Original Issue Discount Security'' shall mean any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 6.1.
Outstanding
The term ``outstanding'' or ``principal amount outstanding'', when used
with respect to the Securities, shall not, except as otherwise provided
herein, include (i) Securities held by the Company in its treasury, or (ii)
Securities for the payment or redemption of which moneys in the necessary
amount shall have been deposited in trust with the Trustee, provided that
if such Securities are to be redeemed prior to the Maturity thereof, notice
of such redemption shall have been duly given or provision satisfactory to
the Trustee shall have been made for giving such notice, or (iii)
Securities in lieu of or in substitution for which other Securities shall
have been authenticated and delivered pursuant to the terms of Section 2.3,
or (iv) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation. The term ``outstanding'' or ``principal amount
outstanding'', when used with respect to indebtedness other than the
Securities, shall not include any such indebtedness held by the Company in
its treasury or for the payment or redemption of which moneys in the
necessary amount shall have been deposited in trust or set aside and
segregated in trust by the Company, provided that, if such other
indebtedness is to be redeemed prior to the maturity thereof, any notice of
such redemption required by the terms thereof shall have been duly given or
provision satisfactory to the trustee shall have been made for giving such
notice.
Person
The term ``Person'' shall mean an individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
Redemption Date
The term ``Redemption Date'', when used with respect to any Security to be
redeemed, shall mean the date fixed for such redemption by or pursuant to
this Indenture.
Redemption Price
The term ``Redemption Price'' shall mean the amount payable for the
redemption of any Security on the Redemption Date, and shall always include
interest accrued and unpaid to the Redemption Date, unless otherwise
specifically provided.
Regular Record Date
The term ``Regular Record Date'' for the interest payable on any Interest
Payment Date on the Securities of any series shall mean the date specified
for that purpose as contemplated by Section 2.1.
Responsible Officer
The term ``Responsible Officer'', when used with respect to the Trustee,
shall mean the chairman of the board of directors, the president, every
vice president (whether or not designated by a number or a word or words
added before or after the title ``vice president''), the secretary, every
trust officer, every assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, or to whom
any corporate trust matter is referred because of his knowledge of and
familiarity with the particular subject.
Sears
The term ``Sears'' shall mean Sears, Roebuck and Co.
Securities
The term ``Securities'' shall mean any Securities authenticated and
delivered under this Indenture.
Security Register
The term ``Security Register'' shall have the meaning specified in Section
2.5.
Special Record Date
The term ``Special Record Date'' for the payment of any Defaulted Interest
shall mean a date fixed by the Trustee pursuant to Section 2.7.
Stated Maturity
The term ``Stated Maturity'', when used with respect to any Security or any
installment of interest thereon, shall mean the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
Subsidiary; Voting Stock
The term ``Subsidiary'' shall mean any corporation of which shares of
Voting Stock entitled to elect a majority of the directors are at the time
owned directly or indirectly by the Company and its other Subsidiaries. The
term ``Voting Stock'' shall mean outstanding shares of stock having voting
power for the election of directors, whether at all times or only so long
as no senior class of stock has such voting power because of default in
dividends or some other default.
Trustee
The term ``Trustee'' shall mean the party named as such above until a
successor becomes such pursuant hereto and thereafter shall mean or include
each party who is then a trustee hereunder, and if at any time there is
more than one such party, ``Trustee'' as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities
of that series. If Trustees with respect to different series of Securities
are trustees hereunder, nothing herein shall constitute the Trustees as
co-trustees of the same trust, and each Trustee shall be the trustee of a
trust separate and apart from any trust administered by any other Trustee
with respect to a different series of Securities.
U.S. Government Obligations
The term ``U.S. Government Obligations'' shall mean securities which are
(i) direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligations or a specific payment of interest on or
principal of any such U.S. Government Obligations held by such custodian
for the account of the holder of a depository receipt; provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of interest on or principal of the U.S.
Government Obligations evidenced by such depository receipt.
SECTION 1.2. All terms used in this Indenture which are defined in the
Trust Indenture Act of 1939, as amended, or which are by reference therein
defined in the Securities Act of 1933, as amended (except as herein
otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust Indenture Act
of 1939, as amended, and the Securities Act of 1933, as amended, as they
were respectively in force at the date of this Indenture.
ARTICLE II
THE SECURITIES
SECTION 2.1. (a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a resolution of the Board and set forth in an
Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.4, 2.5, 2.6, 4.7 or
11.4);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the
date or dates from which such interest shall accrue, the date or dates
on which payment of such interest shall commence, the Interest Payment
Dates on which such interest shall be payable and the Regular Record
Date for the interest payable on any Interest Payment Date;
(5) if other than as set forth in Section 3.2, the place or places
where the principal of (and premium, if any, on) and interest, if any,
on Securities of the series shall be payable;
(6) the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the series may
be redeemed, in whole or in part, at the option, or as an obligation,
of the Company;
(7) the obligation or right, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation or right;
(8) the terms, if applicable, of conversion or exchange for other
securities, at the option of the Company or the Holder, of Securities
of the series;
(9) any subordination provisions;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(11) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 6.1;
(12) the terms of any warrants attached to the Securities of the
series;
(13) the currency or currencies, including ECU or other composite
currencies, in which the Securities may be purchased and in which
principal of (and premium, if any) and interest, if any, on the
Securities of the series shall be payable (if other than Dollars);
(14) if the amount of payments of principal of (and premium, if any)
or interest, if any, on the Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(15) provisions, if any, for the defeasance of Securities of a
particular series (including provisions permitting defeasance of less
than all Securities of a particular series), which provisions may be
in addition to, in substitution for, in subtraction from, or in
modification of (or any combination of the foregoing) the provisions
of Article Thirteen;
(16) whether the Securities of the series are issuable in whole or in
part as one or more Global Securities and, in such case, the identity
of the Depository for such Global Security or Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture but which may
modify or delete any such provision of this Indenture insofar as it
applies to such series; provided that no term thereof shall be
modified or deleted if imposed by operation of subsection (c) of
Section 318 of the Trust Indenture Act of 1939, as amended, and
provided further that any modification or deletion of the rights,
duties or immunities of the Trustee shall have been consented to in
writing by the Trustee).
If any of the foregoing terms are not available at the time such
resolutions are adopted, or such Officers' Certificate or any supplemental
indenture is executed, such resolutions, Officers' Certificate or
supplemental indenture may reference the document or documents to be
created in which such terms will be set forth prior to the issuance of such
Securities.
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in or pursuant to
such resolution of the Board and set forth in such Officers' Certificate or
in any such indenture supplemental hereto.
If any of the terms of the series are established by action taken pursuant
to a resolution of the Board, a copy of an appropriate record of such
action shall be included in the Officers' Certificate setting forth the
terms of the series.
(b) The Securities of each series shall be in substantially the form as
shall be established by or pursuant to a resolution of the Board or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other
marks of identification and such legends or endorsements placed thereon as
may be required to comply with any law or with any rules made pursuant
thereto or with any rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
(c) The Trustee's certificate of authentication on all Securities shall be
in substantially the following form:
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
,
as Trustee
By
Authorized Officer
SECTION 2.2. The Securities of each series shall be issuable in registered
form without coupons in such denominations as shall be specified as
contemplated by Section 2.1. In the absence of any contrary provisions with
respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple
thereof and shall be payable only in Dollars.
SECTION 2.3. The Securities shall be executed on behalf of the Company by
any two of its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, under its corporate seal
reproduced thereon. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold
such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a written order of
the Company signed by its Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents for the authentication
and delivery of such Securities, and the Trustee in accordance with such
order shall authenticate and deliver such Securities. If the form or terms
of the Securities of the series have been established in or pursuant to one
or more resolutions of the Board as permitted by Section 2.1, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive, and (subject to Section 10.1) shall
be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form and terms of such Securities have been established by
or pursuant to a resolution of the Board as permitted by Section 2.1,
that such form and terms have been established in conformity with the
provisions of this Indenture; and
(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and binding obligations of the Company in accordance with their terms,
subject to insolvency, bankruptcy, reorganization and other laws
relating to or affecting the enforcement of creditors' rights or by
general equity principles.
The Trustee shall have the right to decline to authenticate and deliver any
Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken or if the Trustee in
good faith by its board of directors or trustees, executive committee, or a
trust committee of directors or trustees and/or responsible officers shall
determine (i) that such action would expose the Trustee to liability to
existing Holders, or (ii) in the case of Securities designated pursuant to
one or more resolutions of the Board as permitted by Section 2.1, that such
action would affect the Trustees' own rights, duties or immunities under
this Indenture or otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
SECTION 2.4. Pending the preparation of definitive Securities of any
series, the Company may execute, and upon a written order of the Company
signed by its Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents, the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which
they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series, without charge to the Holder, upon surrender of
the temporary Securities of such series at the office or agency of the
Company for that series to be maintained in accordance with the provisions
of Section 3.2. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized
denominations. Until so exchanged the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture
as definitive Securities of such series.
SECTION 2.5. The Company shall keep or cause to be kept a register for
each series of Securities issued hereunder (herein called a ``Security
Register'') at any office or agency of the Company to be maintained in
accordance with the provisions of Section 3.2 in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for
the registration of Securities and of transfers of Securities. The Security
Register shall be in written form or capable of being converted into
written form within a reasonable time. Unless otherwise specifically
designated by the Company in a written notice to the Trustee, the Security
Register shall be maintained at the principal corporate trust office of the
Trustee.
Upon surrender for registration of transfer of any Security of any series
at the office or agency for that series to be maintained in accordance with
the provisions of Section 3.2, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and Stated Maturity
and bearing a number not contemporaneously outstanding.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and Stated Maturity and bearing a number
not contemporaneously outstanding upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Sections 2.4, 4.7 or 11.4, not
involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Securities of that series selected for redemption under Section 4.3 and
ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security theretofore designated
for redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
SECTION 2.6. If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a Security of the same series and principal amount and
Stated Maturity and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired
by a bona fide purchaser, the Company shall execute and upon its request
the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a Security of the same series and principal amount
and Stated Maturity and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a Security in substitution of such Security, pay such
Security, provided the conditions set forth in the next preceding paragraph
are satisfied.
Upon the issuance of any Security pursuant to this Section, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses, including counsel fees, of the Company and the Trustee, any
Authenticating Agent, and any paying agent or Security registrar connected
therewith and in addition a further sum not exceeding two dollars for each
Security so issued in substitution.
Every Security of any series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost
or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen securities.
SECTION 2.7. Each installment of interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid only to or upon the written order of the Person
in whose name that Security is registered at the close of business on the
Regular Record Date for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called ``Defaulted Interest'') shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) the Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner: (a) the Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each
Security of such series and the date of the proposed payment which
shall be at least 20 days from the date of such notice, and at the
same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause
provided; (b) thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment; and (c) the Trustee
shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities of such series at his address as it appears in
the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series are registered at the close of business on
such Special Record Date; or
(2) the Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 2.8. Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered upon
the Security Register as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any, on) and (subject to
Section 2.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee, or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depository or its nominee, or impair, as between the Depository and holders
of beneficial interests in any Global Security, the operation of customary
practices governing the exercise of the rights of the Depository as holder
of such Global Security, including without limitation the granting of
proxies or other authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under this Indenture.
SECTION 2.9. All Securities surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall be delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall
be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of as
directed by a written order of the Company signed by its Chairman of the
Board, its President or one of its Vice Presidents.
SECTION 2.10. (a) If the Company shall establish pursuant to Section 2.1
that the Securities of a particular series are to be issued in whole or in
part as one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with Section 2.3 and the order of the
Company delivered to the Trustee thereunder, authenticate and deliver, one
or more Global Securities which (i) shall constitute, and shall be
denominated in an amount equal to the aggregate principal amount of, all or
part of the outstanding Securities of such series, (ii) shall be registered
in the name of the Depository or its nominee, (iii) shall be held by the
Trustee as agent for the Depository or delivered pursuant to the
Depository's instruction and (iv) shall bear a legend substantially to the
following effect: ``Except as otherwise provided in Section 2.10 of the
Indenture, this Security may be transferred, in whole but not in part, only
to another nominee of the Depository or to a successor Depository or to a
nominee of such successor Depository.''
(b) Notwithstanding any other provision (other than Section 2.10(c)) of
this Section 2.10 or of Section 2.5, the Global Securities of a series may
be transferred, in whole but not in part and in the manner provided in
Section 2.5, only to another nominee of the Depository for such series, or
to a successor Depository for such series selected or approved by the
Company or to a nominee of such successor Depository.
(c) If (i) the Company advises the Trustee in writing that the Depository
is no longer willing or able to discharge properly its responsibilities
with respect to any Securities of any series represented by one or more
Global Securities, and the Trustee or the Company is unable to locate a
qualified successor, or (ii) the Company, at its option, advises the
Trustee in writing that it has determined that any Securities of any series
represented by one or more Global Securities shall no longer be represented
by one or more Global Securities, then in either event the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate
evidencing such determination by the Company, will authenticate and
deliver, Securities of such series in definitive registered form without
coupons, in authorized denominations, and in an aggregate principal amount
equal to the principal amount of such Global Securities in exchange for
such Global Securities. Upon the exchange of Global Securities for such
Securities in definitive registered form without coupons, in authorized
denominations, the Global Securities shall be cancelled by the Trustee and
the provisions of this Section 2.10 shall no longer be applicable to such
Securities. Such Securities in definitive registered form issued in
exchange for Global Securities pursuant to this Section 2.10(c) shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the Persons in whose names such Securities are
so registered.
SECTION 2.11. (a) Except as otherwise specified pursuant to Section 2.1,
payment of the principal of (and premium, if any) and interest on
Securities of any series will be made in Dollars.
(b) For purposes of any provision of this Indenture where the Holders of
outstanding Securities of a series may perform an act which requires that a
specified percentage of the outstanding Securities of such series perform
such act and for purposes of any decision or determination by the Trustee
of amounts due and unpaid for the principal (and premium, if any) and
interest on the outstanding Securities of such series in respect of which
moneys are to be disbursed ratably, the principal of (and premium, if any)
and interest on the outstanding Securities of such series denominated in a
Foreign Currency will be the amount in Dollars based upon the Market
Exchange Rate for such Foreign Currency on the latest date for which such
rate was established on or before the date for determining the Holders
entitled to perform such act, or the date of such decision or determination
by the Trustee, as the case may be.
SECTION 2.12. If the principal of (and premium, if any) and interest on
any Securities is payable in a Foreign Currency and such Foreign Currency
is not available for payment due to the imposition of exchange controls or
other circumstances beyond the control of the Company, then the Company
shall be entitled to satisfy its obligations to Holders under this
Indenture by making such payment in Dollars on the basis of the Market
Exchange Rate for such Foreign Currency on the latest date for which such
rate was established on or before the date on which payment is due. Any
payment made pursuant to this Section 2.12 in Dollars where the required
payment is in a Foreign Currency shall not constitute a default under this
Indenture.
ARTICLE III
COVENANTS OF THE COMPANY
Subject to the provisions of Section 13.4, so long as Securities are
outstanding hereunder, the Company covenants for the benefit of each series
of Securities that:
SECTION 3.1. The Company will punctually pay the principal (premium, if
any) and interest, if any, to become due in respect of all the Securities
of that series according to the terms of the Securities of that series and
this Indenture. Such interest on Securities shall be payable without
presentation of such Securities and (subject to the provisions of Section
2.7) only to or upon the written order of the Holders of such Securities.
Except as otherwise specified as contemplated by Section 2.1 for Securities
of any series, payments of interest shall be made either, at the option of
the Company, by check mailed to the address of the person entitled thereto
as such address shall appear on the Security Register for that series, or
at any one or more of the offices or agencies of the Company maintained in
accordance with Section 3.2.
SECTION 3.2. The Company will maintain in the Borough of Manhattan of The
City of New York, and may maintain in the city in which the principal
executive offices of the Company are located or the city in which the
principal corporate trust office of the Trustee is located, an office or
agency where, except as otherwise provided herein, the Securities of that
series may be presented for payment, an office or agency where the
Securities of that series may be presented for registration of transfer and
for exchange as provided in this Indenture and an office or agency where
notices and demands to or upon the Company in respect of such Securities or
of this Indenture may be served. Until otherwise designated by the Company
in a written notice to the Trustee, such office or agency in the Borough of
Manhattan of The City of New York for all of the above purposes shall be
.
SECTION 3.3. The Company will
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended (or copies of such portions thereof as may be prescribed by
the Commission under the provisions of the Trust Indenture Act of
1939, as amended); or, if the Company is not required to file with the
Commission information, documents or reports pursuant to either
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended, then the Company will file with the Trustee and will file
with the Commission, in accordance with rules and regulations
prescribed by the Commission, such of the supplementary and periodic
information, documents and reports required pursuant to Section 13 of
the Securities Exchange Act of 1934, as amended, in respect of a
security listed and registered on a national securities exchange as
may be prescribed in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required by such rules and
regulations, including, in the case of annual reports, if required by
such rules and regulations, certificates or opinions of independent
public accountants, conforming to the requirements of Section 14.6, as
to compliance with conditions or covenants, compliance with which is
subject to verification by accountants;
(c) transmit to the Holders of that series of Securities, in the
manner and to the extent provided in Subdivision (c) of Section 10.10
hereof, such summaries of any information, documents and reports
required to be filed with the Trustee pursuant to the provisions of
Subdivisions (a) and (b) of this Section 3.3 as may be required by the
rules and regulations of the Commission under the provisions of the
Trust Indenture Act of 1939, as amended; and
(d) furnish or cause to be furnished to the Trustee semi-annually not
later than each Interest Payment Date for each series of Securities,
provided that interest on such Securities is payable at least
semi-annually, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such
request, a list in such form as the Trustee may reasonably require
containing all information in the possession or control of the Company
or of any paying agent, other than the Trustee, as to the names and
addresses of the Holders of such series of Securities obtained since
the date as of which the next previous list, if any, was furnished.
Any such list may be dated as of a date not more than 15 days prior to
the time such information is furnished or caused to be furnished, and
need not include information received after such date.
SECTION 3.4. Within 120 days after the close of each fiscal year of the
Company ending after the date hereof, the Company will file with the
Trustee a statement signed by the Chairman of the Board, the Chief
Executive Officer or its President or any Vice President and by the
Treasurer or any Assistant Treasurer or the Secretary or any Assistant
Secretary of the Company (provided, that one of such signatories shall be
the Company's principal executive officer, principal financial officer or
principal accounting officer), stating that in the course of the
performance by the signers of their duties as officers of the Company they
would normally obtain knowledge of any default by the Company in the
performance or fulfillment of any covenant, agreement or condition
contained in this Indenture, and stating whether or not they have obtained
knowledge of any such default, and, if so, specifying each such default of
which the signers have knowledge and the nature thereof. For purposes of
this Section 3.4, ``default'' shall mean any default defined in Section 6.1
hereof, irrespective of the giving of any specified notice and excluding
any periods of grace provided for therein.
SECTION 3.5. The Company will cause any paying agent which it may appoint,
other than the Trustee, to execute and deliver to the Trustee an instrument
in which such agent shall agree with the Trustee,
(a) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest on the
Securities of that series (whether such sums have been paid to it by
the Company or by any other obligor on such Securities) in trust for
the benefit of the Holders of such Securities or of the Trustee, as
the case may be,
(b) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on such Securities) to make any payment of
the principal (and premium, if any, on) or interest on such Securities
when the same shall be due and payable, and
(c) that in the case of a default by the Company hereunder, that it
will deliver to the Trustee any sums then held by it in respect of the
Securities.
If the Company acts as its own paying agent, it will, on or before each due
date of principal (and premium, if any) or of any installment of interest
on such Securities, set aside and segregate and hold in trust for the
benefit of the Holders of such Securities or the Trustee a sum sufficient
to pay such principal (and premium, if any) or interest and will notify the
Trustee of such action.
SECTION 3.6. The Company will:
(a) maintain a Fixed Charge Coverage Ratio for any fiscal quarter of
not less than 1.10;
(b) cause Sears to continue to own and to hold all legal title to and
beneficial interest in all of the outstanding voting stock of the
Company;
(c) cause Sears to observe and perform in all material respects all
covenants or agreements of Sears contained in the Fixed Charge
Coverage and Ownership Agreement; and
(d) not amend, waive, terminate or otherwise modify any provision of
the Fixed Charge Coverage and Ownership Agreement.
ARTICLE IV
REDEMPTION OF SECURITIES
SECTION 4.1. Securities of any series which are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 2.1 for
Securities of any series) in accordance with this Article.
SECTION 4.2. The election of the Company to redeem any Securities shall be
evidenced by an Officers' Certificate. In case of any redemption at the
election of the Company of less than all the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities which is subject to any restriction on such redemption provided
in the terms of such Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 4.3. If less than all the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected from
the outstanding Securities of such series not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof, if less than all the Securities of that series
are to be redeemed on the applicable Redemption Date) of the principal
amount of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of the Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in
the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to
be redeemed.
SECTION 4.4. Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Securities to be
redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price; and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Any notice which is mailed in the manner herein provided shall be
conclusively presumed to be duly given, whether or not the Holder receives
such notice; any failure to give such notice by mail or any defect in such
notice to the Holder of a particular Security designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security.
SECTION 4.5. On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a paying agent (or, if the Company is acting as
its own paying agent, segregate and hold in trust as provided in Section
3.5) an amount of money sufficient to pay the Redemption Price of, and
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 4.6. Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such
date (unless the Company shall default on the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however,
that installments of interest whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities,
registered as such at the close of business on the relevant Regular or
Special Record Dates according to their terms and the provisions of Section
2.7.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until
paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 4.7. Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company to be maintained
pursuant to Section 3.2 (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and to the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a Security or Securities of the same
series and Stated Maturity of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered and
bearing a number not contemporaneously outstanding. If a Global Security is
so surrendered such new Security or Securities so issued shall be a Global
Security or Global Securities.
ARTICLE V
SINKING FUNDS
SECTION 5.1. The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by Section 2.1 for Securities of such
series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a ``mandatory sinking
fund payment'', and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
``optional sinking fund payment''. Unless otherwise provided for by the
terms of Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 5.2. Each
sinking fund payment shall be applied to the redemption of Securities of
any series as provided for by the terms of Securities of such series.
SECTION 5.2. The Company (1) may deliver outstanding Securities (including
for purposes of this Clause (1) any Securities held by the Company in its
treasury) of a series (other than any previously called for redemption) and
(2) may, by written notice to the Trustee, apply as a credit Securities of
a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities; provided, however, that such
Securities have not been previously so credited. Such Securities shall be
credited for such purpose by the Trustee at the Redemption Price specified
in such Securities for redemption through operation of the sinking fund and
the amount of such sinking fund payment shall be reduced accordingly.
SECTION 5.3. Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an
Officers' Certificate specifying the amount of the next ensuing sinking
fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash and
the portion thereof, if any, which is to be satisfied by crediting
Securities of that series pursuant to Section 5.2 and will also deliver to
the Trustee any Securities to be delivered pursuant to Clause (1) of
Section 5.2. Not less than 30 days before each such sinking fund payment
date the Trustee shall select or cause to be selected the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 4.3 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
4.4. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 4.6 and
4.7.
ARTICLE VI
REMEDIES UPON DEFAULT
SECTION 6.1. Subject to the provisions of Section 2.12, the following
events are hereby defined for all purposes of this Indenture with respect
to Securities of any series (except where the term is otherwise defined for
specific purposes) as ``defaults'':
(a) Failure to pay the principal of (and premium, if any, on) any of
the Securities of that series, when and as the same shall become due
and payable, whether at Stated Maturity thereof, by call for
redemption or otherwise; or
(b) Failure to pay any installment of interest on any of the
Securities of that series, when and as the same shall become payable
as therein expressed, and such failure shall continue for a period of
30 days (it being understood that if the entire amount of such payment
of interest is deposited by the Company with the Trustee, or with
another paying agent duly appointed hereunder, before the expiration
of such period of 30 days, such default shall no longer be considered
to be continuing under this Indenture); or
(c) Failure to perform or observe any other of the covenants,
conditions or agreements on the part of the Company in this Indenture
(other than a covenant, condition or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with or which has expressly been included in this Indenture
solely for the benefit of series of Securities other than that series)
or in the Securities of that series contained, and such failure shall
continue for a period of 60 days after written notice to the Company
from the Trustee or to the Company and to the Trustee from the Holders
of not less than a majority of the Securities of that series then
outstanding under this Indenture; or
(d) Except as a result of compliance with any court order to which the
Company or Sears is subject or any applicable law or any government
decree, if an event of default as defined in any mortgage, indenture
or instrument, under which there may be issued, or by which there may
be secured or evidenced, any indebtedness for borrowed money of the
Company or of Sears (including this Indenture), whether such
indebtedness now exists or shall hereafter be created, shall happen
and shall result in such indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise become due
and payable, and such acceleration shall not be rescinded or annulled
within 30 days after written notice to the Company from the Trustee or
to the Company and to the Trustee from the Holders of not less than a
majority of the Securities of that series then outstanding under this
Indenture; provided, however, that it shall not be a default hereunder
if the principal amount of indebtedness the maturity of which is so
accelerated is less than $100,000,000; provided, further, that if,
prior to a declaration of acceleration of the maturity of the
Securities then outstanding or the entry of judgment in favor of the
Trustee in a suit pursuant to Section 6.2, such default shall be
remedied or cured by the Company or Sears or waived by the holders of
such indebtedness, or such indebtedness shall be discharged, then the
default hereunder by reason thereof shall be deemed likewise to have
been thereupon remedied, cured or waived without further action upon
the part of either the Trustee or any of the Holders of the
Securities; or
(e) If the Company shall file a petition commencing a voluntary case
under any chapter of the Federal bankruptcy laws; or the Company shall
file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar
applicable Federal law, or shall consent to the filing of any such
petition, answer, or consent; or the Company shall appoint, or consent
to the appointment of a custodian, receiver, liquidator, trustee,
assignee, sequestrator or other similar official in bankruptcy or
insolvency of it or of any substantial part of its property; or shall
make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due;
or
(f) If any order for relief against the Company shall have been
entered by a court having jurisdiction in the premises under any
chapter of the Federal bankruptcy laws, and such order shall have
continued undischarged or unstayed for a period of 120 days; or a
decree or order by a court having jurisdiction in the premises shall
have been entered approving as properly filed a petition seeking
reorganization, arrangement, adjustment, or composition of the Company
under any other similar applicable Federal law, and such decree or
order shall have continued undischarged or unstayed for a period of
120 days; or a decree or order of a court having jurisdiction in the
premises for the appointment of a custodian, receiver, liquidator,
trustee, assignee, sequestrator, or other similar official in
bankruptcy or insolvency of the Company or of any substantial part of
its property, or for the winding up or liquidation of its affairs,
shall have been entered, and such decree or order shall have remained
in force undischarged or unstayed for a period of 120 days; or
(g) Any other default provided with respect to Securities of that
series.
If one or more defaults with respect to Securities of any series shall
happen and be continuing, then, and in each and every such case, either the
Trustee, by notice in writing to the Company, or the Holders of not less
than a majority in principal amount of the Securities of that series then
outstanding, by notice in writing to the Company and to the Trustee, may
declare due and payable, if not already due and payable, the principal
amount (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities of that series; and upon any
such declaration all Securities of that series shall become and be
immediately due and payable, anything in this Indenture or in any of such
Securities contained to the contrary notwithstanding. This provision,
however, is subject to the condition that if, at any time after the
principal (or portion thereof) of the Securities of that series shall have
been declared due and payable, and prior to the Stated Maturity of the
principal thereof, all arrears of interest upon all such Securities (with
interest so far as may be lawful on any overdue installments of interest at
the rate specified in such Securities) and the expenses of the Trustee, its
agents or attorneys shall be paid by or for the account of the Company, and
all defaults as aforesaid (other than the payment of principal which has
been so declared due and payable) shall have been made good or secured to
the satisfaction of the Trustee and provision deemed by the Trustee to be
adequate shall be made therefor, then and in every such case the Trustee
shall, upon the written request of the Holders of a majority in principal
amount of the Securities of that series then outstanding, delivered to the
Company and to the Trustee, waive such default and its consequences and
rescind or annul such declaration; but no such waiver shall extend to or
affect any subsequent default, or impair any right consequent thereon.
Notwithstanding the foregoing, to the extent the Company shall have been
relieved of any of its obligations under this Indenture with respect to
Securities of any series pursuant to Section 13.4 hereof, the failure of
the Company to perform any such obligations as to which it has been
relieved shall not constitute a default as contemplated by this Indenture.
SECTION 6.2. In case the Company:
(a) shall fail to pay any installment of interest on any Security of
any series when and as it shall become payable and such failure shall
have continued for a period of 30 days (it being understood that if
the entire amount of such payment of interest is deposited by the
Company with the Trustee, or with another paying agent duly appointed
hereunder, before the expiration of such period of 30 days, such
default shall no longer be considered to be continuing under this
Indenture); or
(b) shall fail to pay the principal, or portion thereof, of (or
premium, if any, on) any Security of any series when it shall have
become due and payable, whether at the Stated Maturity thereof, by
call for redemption, by declaration as authorized by this Indenture
(unless annulled pursuant to Section 6.1), or otherwise;
then, upon demand of the Trustee, the Company shall pay to the Trustee, for
the benefit of the Holders of the Securities of that series then
outstanding, the whole amount which then shall have become due on all such
Securities for principal (or premium, if any) or interest, as the case may
be, including interest at the rate specified in the Securities of that
series on overdue principal (and premium, if any) and, so far as may be
lawful, on overdue installments of interest; and in case the Company shall
fail to pay the same forthwith upon such demand, the Trustee in its own
name and as trustee of an express trust, shall be entitled to recover
judgment for the whole amount so due and unpaid against the Company or any
other obligor on the Securities of that series. The right of the Trustee to
recover such judgment shall not be affected by the exercise of any other
right, power or remedy for the enforcement of the provisions of this
Indenture.
The Trustee shall be entitled and empowered, either in its own name or as
trustee of an express trust, or as attorney-in-fact for the Holders of the
Securities of any series, or in any one or more of such capacities, to file
such proof of debt, amendment of proof of debt, claim, petition or other
document as may be necessary or advisable in order to have the claims of
the Trustee and of the Holders of the Securities of that series allowed in
any equity receivership, insolvency, bankruptcy, liquidation, readjustment,
reorganization or other judicial proceedings relative to the Company or any
other obligor on such Securities or their creditors, or affecting their
property. The Trustee is hereby irrevocably appointed (and the successive
respective Holders of the Securities of that series by taking and holding
the same shall be conclusively deemed to have so appointed the Trustee) the
true and lawful attorney-in-fact of the respective Holders of the
Securities of that series, with authority to make and file in the
respective names of the Holders of such Securities, or on behalf of the
Holders of the Securities of that series as a class, subject to deduction
from any such claims of the amounts of any claims filed by any of the
Holders of the Securities of that series themselves, any proof of debt,
amendment of proof of debt, claim, petition or other document in any such
proceeding and to receive payment of any sums becoming distributable on
account thereof, and to execute any such other papers and documents and to
do and perform any and all such acts and things including participating as
a member of any official or unofficial committee of creditors acting with
respect to such proceeding for and on behalf of such holders of the
Securities of that series, as may be necessary or advisable in the opinion
of the Trustee in order to have the respective claims of the Trustee and of
the Holders of the Securities of that series allowed in any such
proceedings, and to receive payment of or on account of such claims;
provided, however, that nothing contained in this Indenture shall be deemed
to give the Trustee any right to accept or consent to any plan of
reorganization or otherwise by action of any character in any such
proceedings to waive or change in any way any right of any Holder.
Any moneys received by the Trustee under this Section 6.2 shall be applied
in the order following, at the date or dates fixed by the Trustee for the
distribution of such moneys, upon presentation of the several Securities of
any series, and stamping thereon the payment, if only partially paid, and
upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection, and
reasonable compensation to the Trustee, its agents, attorneys and
counsel, and of all other expenses incurred, and all advances made, by
the Trustee except as a result of its negligence or willful
misconduct;
Second: In case the principal of (and premium, if any, on) the
outstanding Securities of that series shall not have become due and be
unpaid, to the payment of interest on the Securities of that series,
in the order of the maturity of the installments of such interest,
with interest, so far as may be lawful, upon the overdue installments
of interest at the rate specified in the Securities of that series,
such payments to be made ratably to the persons entitled thereto,
without discrimination or preferences;
Third: In case the principal of (or premium, if any, on) the
outstanding Securities of that series shall have become due, by
declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon such Securities of that series for principal
(and premium, if any) and interest, with interest at the rate
specified in the Securities of that series on the overdue principal
(and premium, if any) and, so far as may be lawful, on the overdue
installments of interest; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
such Securities, then to the payment of such principal (and premium,
if any) and interest, without preference or priority of principal over
interest, or of interest over principal or of any installment of
interest over any other installment of interest, ratably to the
aggregate of such principal and accrued and unpaid interest;
Fourth: In case the Trustee shall retain possession of any funds after
all obligations of the Company hereunder have been fully paid and
satisfied, such funds shall be paid to the Company, its successors or
assigns;
provided, however, that when interest alone is to be paid, the Trustee at
its election may waive presentation of the Securities of that series.
SECTION 6.3. All rights of action under this Indenture or any of the
Securities outstanding hereunder, enforceable by the Trustee, may be
enforced by the Trustee without possession of any of the Securities or the
production thereof at the trial or other proceeding relative thereto, and
any such suit or proceedings instituted by the Trustee shall be brought for
the ratable benefit of the Holders of the Securities in respect of which
any judgment has been recovered, subject to the provisions of this
Indenture.
SECTION 6.4. No delay or omission of the Trustee or of the Holders of any
Securities to exercise any rights or powers accruing upon any default shall
impair any such right or power, or shall be construed to be a waiver of any
such default or acquiescence therein; and every power and remedy given by
this Article to the Trustee or the Holders may be exercised from time to
time and as often as may be deemed expedient by the Trustee or by the
Holders.
SECTION 6.5. If any one or more defaults shall happen and be continuing,
the Trustee may, in its discretion, proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial
proceedings as the Trustee, being advised by its counsel, shall deem most
effectual to protect and enforce any of said rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise,
whether for the specific performance of any covenant or agreement contained
in the Indenture or in aid of the exercise of any power granted in the
Indenture, or to enforce any other legal or equitable right vested in the
Trustee by this Indenture or by law.
Provided the Securities of any series shall not then be due and payable by
reason of a declaration pursuant to Section 6.1 hereof, the Holders of a
majority in principal amount of the Securities of that series at the time
outstanding may on behalf of the Holders of all of such Securities waive
any past default hereunder and its consequences, except a default in the
payment of interest on or the principal of (or premium, if any, on) any of
such Securities. In the case of any such waiver, the Company, the Trustee
and the Holders of such Securities shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 6.6. The Holders of a majority in principal amount of the
Securities of any series then outstanding shall have the right, by an
instrument in writing executed and delivered to the Trustee, to direct the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or of exercising any power or trust conferred
upon the Trustee under this Indenture; provided, however, that subject to
the provisions of Section 10.1 of this Indenture, the Trustee shall have
the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action or proceeding so directed may
not lawfully be taken or if the Trustee in good faith shall by responsible
officers determine that the action or proceeding so directed would involve
the Trustee in liability.
SECTION 6.7. No Holder of any Security of any series shall have the right
to institute any suit, action or proceeding, in equity or at law, for the
execution of any trust or power hereof, or for the enforcement of any other
remedy under or upon this Indenture, unless such Holder previously shall
have given to the Trustee written notice of default with respect to the
Securities of that series, and unless also the Holders of a majority in
principal amount of the Securities of that series then outstanding shall
have made written request upon the Trustee and shall have afforded to it a
reasonable opportunity either to proceed to exercise the powers
hereinbefore granted or to institute such action, suit or proceeding in its
own name, and shall have offered to the Trustee security and indemnity
satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee shall have refused or
neglected to comply with such request within a reasonable time; it being
understood and intended that no one or more Holders of Securities of that
series shall have any right in any manner whatever hereunder or under the
Securities of that series by his or their action to enforce any right
hereunder except in the manner herein provided, and that all proceedings
hereunder, at law or in equity, shall be instituted, had and maintained in
the manner herein provided and for the ratable benefit of all Holders of
such Securities. Nothing herein contained shall, however, affect or impair
the right which is absolute and unconditional, of any Holder of any
Security to institute suit to enforce the payment of the principal of (or
premium, if any, on) and interest on his Security at and after the
respective due dates expressed in such Security (including Maturity by call
for redemption, declaration (unless annulled pursuant to Section 6.1
hereof) of the acceleration of the Maturity of such principal (or premium
if any, on) or interest, or otherwise), or the obligation of the Company,
which is also absolute and unconditional, to pay the principal of (or
premium, if any, on) and interest on each of the Securities of that series
to the respective Holders thereof at the times and places in the Securities
expressed.
Anything to the contrary notwithstanding contained in this Section 6.7, the
parties to this Indenture agree and each Holder of any Security of any
series by his acceptance thereof shall be deemed to have agreed that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee
for any action taken or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and
such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merit and good faith of the claims or defenses made by
such party litigant; provided, however, that the provisions of this
paragraph shall not apply to any suit instituted, directly or through an
agent or agents, by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than 10% in principal
amount of the Securities of any series outstanding or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any, on) or interest on his Securities of that
series at and after the respective due dates of such principal (premium, if
any) or interest expressed in his Securities of that series.
SECTION 6.8. No Securities of any series which are known by the Trustee to
be owned or held by, for the account of or for the benefit of, the Company
or any other obligor under this Indenture or any Affiliate of the Company
or of such other obligor (other than Securities of that series pledged in
good faith which would be deemed outstanding under the provisions of
Section 7.4) shall be deemed outstanding for the purpose of any payment or
distribution provided for in this Article.
SECTION 6.9. If the Trustee or any Holder shall have proceeded to enforce
any right under this Indenture, and such proceedings shall have been
discontinued or abandoned because of waiver, or for any other reason, or
shall have been determined adversely to the Trustee or such Holder, then,
and in any such case, the Company and the Trustee and such Holder or
Holders shall each be restored to its former position and rights hereunder,
and all rights, remedies and powers of the Trustee and the Holders shall
continue as though no such proceedings had been taken.
ARTICLE VII
CONCERNING THE HOLDERS
SECTION 7.1. Whenever in this Indenture it is provided that the Holders of
a specified percentage or a majority in aggregate principal amount of the
Securities of any series may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the
taking of any other action) the fact that at the time of taking any such
action the Holders of such specified percentages have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar
tenor executed by Holders of Securities of that series in person or by
attorney or proxy appointed in writing, or (b) by the record of the Holders
of Securities of that series voting in favor thereof at any meeting of such
Holders duly called and held in accordance with the provisions of Article
XII, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of such Holders. The Company or the Trustee may
(and in case of any action taken by Holders of a specified percentage or
majority in aggregate principal amount of the Securities of any series
pursuant to Section 6.1 or 6.6 hereof, the Trustee shall) set a record date
and time for purposes of determining the identity of Holders of any series
entitled to vote or consent to any action, which record date shall be the
later of 30 days prior to the first solicitation of such consent or the
date of the most recent list of Holders of such series of Securities
furnished to the Trustee prior to such solicitation pursuant to Section 3.3
(d) hereof. If the Company or the Trustee sets such a record date, only
those persons who are registered Holders of such Securities at the record
date and time so fixed shall be entitled to vote or consent with respect to
such action whether or not they are Holders at the time of such vote or
consent.
SECTION 7.2. Subject to the provisions of Section 10.1, proof of the
execution of any instrument by a Holder of Securities of any series or his
attorney or proxy and proof of the holding by any person of any of the
Securities of that series shall be sufficient for any purpose of this
Indenture if made in the following manner:
(a) The fact and date of the execution by any such person of any
instrument may be proved by the certificate of any notary public, or
other officer of any jurisdiction of or within the United States of
America authorized to take acknowledgments of deeds to be recorded in
such jurisdiction, that the person executing such instrument
acknowledged to him the execution thereof, or by an affidavit of a
witness to such execution sworn to before any such notary or other
such officer. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such
corporation, association or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority.
(b) The ownership of Securities of that series shall be proved by the
Security Register with respect to such Securities or by a certificate
of any duly appointed registrar thereof.
The Trustee shall not be bound to recognize any person as a Holder of
Securities of any series unless and until his authority to vote the
Securities held by him is proved in the manner in this Article VII
provided.
The record of any Holders' meeting shall be proved in the manner provided
in Section 12.6.
The Trustee may require such additional proof of any matter referred to in
this Section 7.2 as it shall deem necessary.
SECTION 7.3. The Company, the Trustee, any Authenticating Agent, any
paying agent and any Security registrar may deem and treat the person in
whose name any Security shall be registered upon the Security Register as
the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notice of ownership or writing thereon made
by anyone other than the Company or any Security registrar) for the purpose
of receiving payment of or on account of the principal of (premium, if any,
on) and interest on such Security and for all other purposes; and neither
the Company nor the Trustee nor any Authenticating Agent nor any paying
agent nor any Security registrar shall be affected by any notice to the
contrary. All such payments so made to any such registered Holder for the
time being or upon his order shall be valid and, to the extent of the sum
or sums so paid, effectual to satisfy and discharge the liability for
moneys payable upon any such Security.
SECTION 7.4. In determining whether the Holders of the requisite aggregate
principal amount of Securities of any series have concurred in any
direction, consent or waiver under this Indenture, Securities of that
series which are owned by or held by or for the account of or interest of
the Company or any other obligor upon the Securities of that series, or any
Affiliate of the Company or of any other obligor upon the Securities of
that series, shall be disregarded and deemed not to be outstanding for the
purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities of that series which the
Trustee knows are so owned or held shall be so disregarded. The Securities
of that series so owned or held which have been pledged in good faith may
be regarded as outstanding for the purposes of this Section 7.4 if the
pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not an Affiliate of
the Company or of any such other obligor. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall
be full protection to the Trustee.
SECTION 7.5. Any demand, request, waiver, consent or vote of the Holder of
any Security of any series shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security, and of any
Security issued in exchange therefor or in place thereof, irrespective of
whether or not any notation in regard thereto is made upon such Security.
Any action taken by the Holders of the majority or percentage in aggregate
principal amount of the Securities of that series specified in this
Indenture in connection with such action shall be conclusively binding upon
the Company, the Trustee and the Holders of all the Securities of that
series.
ARTICLE VIII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 8.1. No recourse under or upon any obligation, covenant or
agreement of this Indenture, or of any Security of any series, or for any
claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present
or future, of the Company or of any successor corporation, either directly
or through the Company, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the
obligations issued hereunder are solely corporate obligations, and that no
such personal liability whatever shall attach to, or is or shall be
incurred by the incorporators, stockholders, officers or directors, as
such, of the Company or of any successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities of any series or implied therefrom;
and that any and all such personal liability, either at common law or in
equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director,
as such, because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in
this Indenture or in any Security of any series or implied therefrom, are
hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Securities.
ARTICLE IX
MERGER, CONSOLIDATION OR SALE
SECTION 9.1. Nothing in this Indenture shall prevent any consolidation or
merger of the Company with or into any other corporation, or any
consolidation or merger of any other corporation with or into the Company,
or any sale or transfer of its assets and liabilities substantially as an
entirety to any other corporation lawfully entitled to acquire the same;
provided, however, that, so long as Securities are outstanding hereunder,
the Company covenants and agrees, that any such consolidation, merger, sale
or transfer shall be upon the condition that the due and punctual payment
of the principal of (or premium, if any, on) and interest on, all the
Securities according to their tenor, and the due and punctual performance
and observance of all the terms, covenants and conditions of this Indenture
to be kept or performed by the Company shall, by an indenture supplemental
hereto, executed and delivered to the Trustee, be assumed by the
corporation (if other than the Company) formed by or resulting from any
such consolidation or merger, or which shall have received the transfer of
the assets and liabilities of the Company substantially as an entirety,
just as fully and effectually as if such successor corporation had been the
original party of the first part hereto; and in the event of any such sale
or transfer the predecessor Company may be dissolved, wound up and
liquidated at any time thereafter.
SECTION 9.2. Every such successor corporation upon executing an indenture
supplemental hereto, as provided in Section 9.1, in form satisfactory to
the Trustee, shall succeed to and be substituted for the Company with the
same effect as if it had been named herein as the Company; and any order,
certificate or resolution of officers of the Company or the Board provided
for in this Indenture may be made by like officials of such successor
corporation. Such successor corporation may thereupon cause to be signed,
either in its own name or in the name of the Company, with such suitable
reference, if any, to such consolidation, merger, sale or transfer as may
be required by the Trustee, any or all of the Securities of any series
which shall not theretofore have been signed by the Company and
authenticated by the Trustee or an Authenticating Agent on its behalf; and
upon the written order of such successor corporation in lieu of the
Company, and subject to all the terms, conditions and restrictions herein
prescribed with respect to the authentication and delivery of the
Securities of any series, the Trustee or an Authenticating Agent on its
behalf shall authenticate and deliver any and all Securities of that series
which shall have been previously signed by the proper officers of the
Company and delivered to the Trustee or an Authenticating Agent on its
behalf for authentication, and any of such Securities which such successor
corporation shall thereafter, in accordance with the provisions of this
Indenture, cause to be signed and delivered to the Trustee or an
Authenticating Agent on its behalf for such purpose. All Securities of that
series so authenticated and delivered shall in all respects have the same
rank as the Securities of that series theretofore or thereafter
authenticated and delivered in accordance with the terms of this Indenture.
In case of any such consolidation, merger, sale or transfer, such changes
in phraseology and form (but not in substance) may be made in the
Securities of any series thereafter to be issued as may be appropriate.
SECTION 9.3. The Trustee may receive and shall, subject to the provisions
of Section 10.1 of this Indenture, be fully protected in relying upon an
Opinion of Counsel or an Officers' Certificate as conclusive evidence that
any supplemental indenture executed under the foregoing Section 9.1
complies with the foregoing conditions and provisions of this Article.
ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.1. (a) The Trustee undertakes, prior to default and after the
curing of all defaults which may have occurred, to perform such duties and
only such duties as are specifically set forth in this Indenture, and in
case of default (but only during the continuance thereof) to exercise such
of the rights and powers vested in it by this Indenture, and to use the
same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
The Trustee, upon receipt of any resolution, certificate, statement,
opinion, report, document, order or other instrument furnished to the
Trustee pursuant to any provision of this Indenture, shall examine them to
determine whether they conform to the requirements of this Indenture.
(b) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act, or its own wilful misconduct, except that:
(i) prior to default hereunder and after the curing of all defaults
which may have occurred, the Trustee shall not be liable except for
the performance of such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee but the duties and obligations of
the Trustee, prior to default and after the curing of all defaults
which may have occurred, shall be determined solely by the express
provisions of this Indenture;
(ii) prior to default hereunder and after the curing of all defaults
which may have occurred, and in the absence of bad faith on the part
of the Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein,
upon certificates or opinions conforming to the requirements of this
Indenture;
(iii) the Trustee shall not be liable for any error of judgment made
in good faith by the Trustee unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(iv) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal
amount of the Securities of any series then outstanding relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred
upon the Trustee, under this Indenture.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
(c) The Trustee shall not be responsible for the validity, sufficiency or
the execution by the Company of this Indenture, or of any indentures
supplemental hereto, or of the Securities of any series, or for the
recitals herein or in the Securities contained (such recitals being made
solely by the Company).
(d) Subject to the limitations contained in subdivisions (a) and (b) of
this Section 10.1:
(i) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, opinion,
notice, consent, request, order, appraisal, report, bond or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(ii) the Trustee may consult with counsel (who may be counsel to the
Company) and any advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel;
(iii) whenever in the administration of this Indenture, prior to a
default hereunder and after the curing of all defaults which may have
occurred, the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or suffering any
action hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate shall be full warrant
to the Trustee for any action taken or suffered by it under the
provisions of this Indenture upon the faith thereof;
(iv) the Trustee shall be under no obligation to exercise any of the
trusts or powers hereof at the request, order or direction of any of
the Holders of Securities of any series, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities to be incurred therein or thereby; and
(v) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or
power conferred upon it by this Indenture.
(e) Subject to the provisions of subdivision (b) of this Section 10.1,
prior to a default hereunder and after the curing of all defaults which may
have occurred, the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, opinion,
notice, consent, request, order, appraisal, report, bond or other document
or instrument unless requested in writing so to do by the Holders of not
less than a majority in principal amount of the Securities of any series
then outstanding; provided, however, that if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it without negligence or bad faith in the making of such
investigation is, in the opinion of the Trustee (subject to the provisions
of subdivisions (a) and (b) of this Section 10.1), not reasonably assured
to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding; and provided
further, that nothing in this subdivision (e) shall require the Trustee to
give the Holders of such Securities any notice other than that required by
Section 10.3 hereof. The reasonable expense of every such examination shall
be paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand.
(f) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 10.2. The Trustee shall be entitled to reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for services rendered by it
in the execution of the trusts hereby created. The Company also agrees to
indemnify the Trustee for and hold it harmless against loss, liability or
expense incurred without negligence or bad faith on the part of the Trustee
arising out of or in connection with the acceptance or administration of
this trust, including the costs and expenses of defending against any claim
of liability in the premises. The Trustee shall have a first lien on all
moneys coming into its possession hereunder, for the payment to it of its
compensation and for the repayment to it of all expenses and disbursements
payable by the Company hereunder.
The Trustee shall not be accountable for the use or application by the
Company of any Securities of any series authenticated and delivered
hereunder or of the proceeds of such Securities, or for the use or
application of any moneys paid over by the Trustee in accordance with any
provision of this Indenture, or for the use or application of any moneys
received by any paying agent.
All moneys received by the Trustee under or pursuant to any provision of
this Indenture shall constitute trust funds for the purposes for which they
were paid or are held, but need not be segregated in any manner from any
other moneys and may be deposited by the Trustee, under such conditions as
may be prescribed by law, in its general banking department, and the
Trustee shall not be liable for any interest thereon, except that, so long
as the Company is not in default hereunder, the Trustee will allow and
credit to the Company interest, if any, upon such moneys at such rate as
may then be customary for similar deposits.
SECTION 10.3. The Trustee shall give to the Holders of Securities of any
series notice, in the manner and to the extent provided in subdivision (c)
of Section 10.10, of the happening of all defaults known to it with respect
to Securities of such series, within 90 days after the occurrence thereof
unless such defaults shall have been cured before the giving of such
notice; but, except in the case of a default resulting from the failure to
make any payment of principal of, premium, if any, on or interest on the
Securities of such series the Trustee may withhold the giving of such
notice if and so long as the board of directors, the executive committee or
a trust committee of directors and/or Responsible Officers, of the Trustee
in good faith determines that the withholding of such notice is in the
interest of the Holders of Securities of such series. For the purposes of
this Section 10.3, the term ``default'' shall mean any default defined in
Section 6.1, irrespective of the giving of any specified notice and
excluding any periods of grace provided for therein.
SECTION 10.4. If the Trustee has or shall acquire any conflicting interest
as defined in this Section 10.4, with respect to the Securities of any
series it shall, within 90 days after ascertaining that it has such
conflicting interest if the default (as defined in Section 10.3) to which
such conflicting interest relates has not been cured or duly waived or
otherwise eliminated before the end of such 90-day period, either eliminate
such conflicting interest or, except as otherwise provided below, resign
with respect to the Securities of that series, such resignation to become
effective upon the appointment of a successor trustee and such successor's
acceptance of such appointment, and the Company shall take prompt steps to
have a successor appointed in the manner provided in Section 10.6. Except
in the case of a default (as defined in Section 10.3) in the payment of the
principal of (or premium, if any) or interest on any such Security, or in
the payment of any sinking or purchase fund installment, the Trustee shall
not be required to resign as otherwise provided by this Section if the
Trustee shall have sustained the burden of proving, on application to the
Commission and after opportunity for hearing thereon, that: (i) the default
(as defined in Section 10.3) may be cured or waived during a reasonable
period and under the procedures described in such application; and (ii) a
stay of the Trustee's duty to resign will not be inconsistent with the
interests of Holders of such Securities. The filing of such an application
shall automatically stay the performance of the duty to resign until the
Commission orders otherwise. For the purposes of this Section 10.4 the
Trustee shall be deemed to have a conflicting interest with respect to the
Securities of any series if such Securities are in default (as defined in
Section 10.3) and:
(1) the Trustee is trustee under another indenture under which any
other securities, or certificates of interest or participation in any
other securities, of the Company are outstanding, unless such other
indenture is a collateral trust indenture under which the only
collateral consists of Securities issued and outstanding under this
Indenture, provided that there shall be excluded from the operation of
this paragraph any indenture or indentures under which other
securities or certificates of interest or participation in other
securities of the Company are outstanding if (i) such other indenture
or indentures (and all series of securities issuable thereunder) are
at the time wholly unsecured and rank equally and such other indenture
or indentures (and such series) are hereafter qualified under the
Trust Indenture Act of 1939, as amended, unless the Commission shall
have found and declared by order pursuant to Subsection (b) of Section
305 or Subsection (c) of Section 307 of the Trust Indenture Act of
1939, as amended, that differences exist between the provisions of
this Indenture and the provisions of such other indenture or
indentures (or such series) which are so likely to involve a material
conflict of interest as to make it necessary in the public interest or
for the protection of investors to disqualify the Trustee from acting
as such under this Indenture and under such other indenture or
indentures, or (ii) the Company shall have sustained the burden of
proving, on application to the Commission and after opportunity for
hearing thereon, that the trusteeship under this Indenture and such
other indenture is not so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture and under such other indenture or indentures;
(2) the Trustee or any of its directors or executive officers is an
underwriter for the Company;
(3) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control
with an underwriter for the Company;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of
the Company or of an underwriter (other than the Trustee itself) for
the Company who is currently engaged in the business of underwriting,
except that (A) one individual may be a director and/or an executive
officer of the Trustee and a director and/or an executive officer of
the Company, but may not be at the same time an executive officer of
both the Trustee and of the Company, and (B) if and so long as the
number of directors of the Trustee in office is more than nine, one
additional individual may be a director and/or an executive officer of
the Trustee and a director of the Company, and (C) the Trustee may be
designated by the Company or by any underwriter for the Company to act
in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent, or depositary, or in any other similar
capacity, or, subject to the provisions of subdivision (1) of this
Section 10.4, to act as trustee, whether under an indenture or
otherwise;
(5) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Company or by any director, partner
or executive officer of the Company or 20% or more of such voting
securities is beneficially owned, collectively, by any two or more of
such persons; or 10% or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for the Company or by
any director, partner or executive officer of any such underwriter, or
is beneficially owned, collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default as hereinafter in this
Section 10.4 defined, (A) 5% or more of the voting securities or 10%
or more of any other class of security of the Company, not including
the Securities issued under this Indenture and the securities issued
under any other indenture of the Company under which the Trustee is
also trustee, or (B) 10% or more of any class of security of any
underwriter for the Company;
(7) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default as hereinafter in this
Section 10.4 defined, 5% or more of any voting securities of any
person who, to the knowledge of the Trustee, owns 10% or more of the
voting securities of, or controls directly or indirectly or is under
direct or indirect common control with, the Company;
(8) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default as hereinafter in this
Section 10.4 defined, 10% or more of any class of security of any
person who, to the knowledge of the Trustee, owns 50% or more of the
voting securities of the Company;
(9) the Trustee owns, on the date of such default (as defined in
Section 10.3) or any anniversary of such default while such default
remains outstanding, in the capacity of executor, administrator,
testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or
more of the voting securities, or of any class of security, of any
person, the beneficial ownership of a specified percentage of which
would have constituted a conflicting interest under subdivisions (6),
(7), or (8) of this Section 10.4. As to any such securities of which
the Trustee acquired ownership through becoming executor,
administrator or testamentary trustee of an estate which included
them, the provisions of the preceding sentence shall not apply, for a
period of not more than two years from the date of such acquisition,
to the extent that such securities included in such estate do not
exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the date of any such default and annually in
each succeeding year that the Securities of any series remain in
default, the Trustee shall make a check of its holdings of such
securities in any of the abovementioned capacities as of such dates.
If the Company fails to make payment in full of principal of, or
premium, if any, on and interest on any of the Securities issued under
this Indenture when and as the same becomes due and payable, and such
failure continues for 30 days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the
abovementioned capacities as of the date of the expiration of such
30-day period, and after such date, notwithstanding the foregoing
provisions of this subdivision (9), all such securities so held by the
Trustee, with sole or joint control over such securities vested in it,
shall, but only so long as such failure shall continue, be considered
as though beneficially owned by the Trustee, for the purposes of
subdivisions (6), (7), and (8) of this Section 10.4; or
(10) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 10.9(b), the Trustee shall be or become a
creditor of the Company.
In determining whether the Trustee has a conflicting interest with respect
to any series of Securities under this Section 10.4, each other series of
Securities will be treated as having been issued under an indenture other
than this Indenture unless such series of Securities rank equally and are
wholly unsecured.
The specification of percentages in subdivisions (5) to (9), inclusive, of
this Section 10.4 shall not be construed as indicating that the ownership
of such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
subdivision (3) or (7) of this Section 10.4.
For the purposes of subdivisions (6), (7), (8), and (9) of this Section
10.4, (A) the term ``security'' and ``securities'' shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies, or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness; (B) an
obligation shall be deemed to be in default when a default in payment of
principal shall have continued for 30 days or more, and shall not have been
cured; and (C) the Trustee shall not be deemed the owner or holder of (i)
any security which it holds as collateral security (as trustee or
otherwise) for an obligation which is not in default as defined in clause
(B) above, or (ii) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as a custodian, escrow
agent or depositary, or in any similar representative capacity.
Except as provided in the next preceding paragraph, the word ``security''
or ``securities'' as used in this Section 10.4 shall mean any note, stock,
treasury stock, bond, debenture, evidence of indebtedness, certificate of
interest or participation in any profit-sharing agreement, collateral trust
certificate, pre-organization certificate or subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas, or other
mineral rights, or, in general, any interest or instrument commonly known
as a ``security'', or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, guarantee of, or warrant
or right to subscribe to or purchase, any of the foregoing.
For the purposes of this Section 10.4:
(I) The term ``underwriter'' when used with reference to the Company
shall mean every person who, within one year prior to the time as of
which the determination is made, has purchased from the Company with a
view to, or has offered or sold for the Company in connection with,
the distribution of any security of the Company outstanding at such
time, or has participated or has had a direct or indirect
participation in any such undertaking, or has participated or has had
a participation in the direct or indirect underwriting of any such
undertaking, but such term shall not include a person whose interest
was limited to a commission from an underwriter or dealer not in
excess of the usual and customary distributors' or sellers'
commission.
(II) The term ``director'' shall mean any director of a corporation or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated.
(III) The term ``person'' shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof. As used in this paragraph, the term ``trust'' shall include
only a trust where the interest or interests of the beneficiary or
beneficiaries are evidenced by a security.
(IV) The term ``voting security'' shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement, or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security
are presently entitled to vote in the direction or management of the
affairs of a person.
(V) The term ``Company'' shall mean any obligor upon the Securities.
(VI) The term ``executive officer'' shall mean the president, every
vice president, every trust officer, the cashier, the secretary, and
the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated but shall not include the chairman of
the board of directors.
The percentages of voting securities and other securities specified in this
Section 10.4 shall be calculated in accordance with the following
provisions:
(a) A specified percentage of the voting securities of a person means
such amount of the outstanding voting securities of such person as
entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the
outstanding voting securities of such person are entitled to cast in
the direction or management of the affairs of such person.
(b) A specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding.
(c) The term ``amount'', when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number
of shares if relating to capital shares, and the number of units if
relating to any other kind of security.
(d) The term ``outstanding'' means issued and not held by or for the
account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(1) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(2) securities of an issuer held in a sinking fund relating to
another class of securities of the issuer, if the obligation
evidenced by such other class of securities is not in default as
to principal or interest or otherwise;
(3) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or
interest or otherwise;
(4) securities held in escrow if placed in escrow by the issuer
thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any person other than the issuer is entitled to
exercise the voting rights thereof.
(e) A security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges, provided, however, that,
in the case of secured evidences of indebtedness, all of which are
issued under a single indenture, differences in the interest rates or
maturity dates of various series thereof shall not be deemed
sufficient to constitute such series different classes, and provided,
further, that, in the case of unsecured evidences of indebtedness,
differences in the interest rates or maturity dates thereof shall not
be deemed sufficient to constitute them securities of different
classes, whether or not they are issued under a single indenture.
SECTION 10.5. There shall at all times be at least one corporate Trustee
under this Indenture which shall be a bank or trust company in good
standing, organized and doing business under the laws of the United States,
the State of Delaware or the State of New York or a corporation or other
person permitted to act as trustee by the Commission, and having a combined
capital and surplus of not less than $20,000,000, which is authorized under
the laws of the jurisdiction of incorporation to exercise corporate trust
powers and is subject to supervision or examination by Federal or state
authority. No obligor upon the Securities or Affiliate of such obligor
shall serve as Trustee. If the Trustee or any successor publishes reports
of condition at least annually, pursuant to law or to the requirements of
the aforesaid supervising or examining authority, the combined capital and
surplus of the Trustee or of such successor Trustee shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If the Trustee shall at any time cease to satisfy
the foregoing qualifications, then the Trustee shall resign within 30 days
thereafter, such resignation to become effective upon the appointment of a
successor Trustee and such successor's acceptance of such appointment. If
the Trustee shall fail or refuse to resign within such 30-day period, or if
the Trustee has or shall acquire any conflicting interest of the character
specified in Section 10.4 with respect to the Securities of one or more
series and shall fail or refuse either to eliminate such conflicting
interest or to resign within the period in Section 10.4 provided in respect
of such resignation, then (i) the Trustee shall, within 10 days after the
expiration of such period, transmit notice of such failure or refusal to
the Holders of Securities of any such series in the manner and to the
extent provided in subdivision (c) of Section 10.10; and (ii) any Holder of
Securities of such series, who has been the bona fide Holder of a Security
of such series for at least six months, may, subject to the provisions of
the last paragraph of Section 6.7 hereof, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee, and the appointment of a successor, if the
Trustee fails, after written request therefor by such Holder of Securities
of such series, to comply with the provisions of Section 10.4.
SECTION 10.6. The Trustee may resign and be discharged from the trust
hereby created with respect to the Securities of one or more series by
giving notice thereof to the Company specifying the date when such
resignation shall take effect, and by giving notice thereof to the Holders
of Securities of such series, in the manner and to the extent provided in
subdivision (c) of Section 10.10. Except as otherwise provided in Sections
10.4 and 10.5, such resignation shall take effect on the date specified in
such notice unless previously a successor Trustee shall have been appointed
as hereinafter provided, in which event such resignation shall take effect
upon the appointment of such successor Trustee.
The Trustee may be removed at any time with respect to the Securities of
any series by an instrument or instruments in writing delivered to the
Trustee and to the Company signed by the Holders of a majority in principal
amount of the Securities of that series then outstanding or by their duly
authorized attorneys-in-fact.
In case the Trustee shall resign or be removed or otherwise shall become
incapable of acting as Trustee, with respect to the Securities of one or
more series, a successor Trustee may be appointed by the Holders of a
majority in principal amount of the Securities of any series then
outstanding by an instrument or instruments in writing filed with the
Company and with the Trustee and signed by such Holders or by their duly
authorized attorneys-in-fact, or, in the case of the removal of the Trustee
pursuant to the provisions of Section 10.5, by any court of competent
jurisdiction acting pursuant to the provisions of Section 10.5; but until a
new trustee shall be appointed by the Holders of Securities of that series
or a court of competent jurisdiction as herein authorized, the Company, by
an instrument executed by order of its Board, shall appoint a Trustee to
fill the vacancy. Every such successor Trustee so appointed by the Holders
of Securities of that series, by a court of competent jurisdiction or by
the Company, shall be a bank or trust company meeting the requirements
provided in Section 10.5.
If in a proper case no appointment of a successor Trustee with respect to
the Securities of any series shall be made pursuant to the foregoing
provisions of this Article within six months after a vacancy shall have
occurred in the office of Trustee, the Holder of any Security of that
series or any retiring Trustee may apply to any court of competent
jurisdiction to appoint a successor Trustee. The court may thereupon, after
such notice, if any, as it may deem proper and prescribe, appoint a
successor Trustee.
SECTION 10.7. (a) Any successor Trustee appointed under any of the methods
herein provided with respect to all Securities shall execute, acknowledge
and deliver to its predecessor Trustee and to the Company an instrument in
writing accepting such appointment hereunder and thereupon such successor
Trustee, without any further act, deed or conveyance, shall become fully
vested with the rights, powers, trusts, duties and obligations of its
predecessor in the trust hereunder with like effect as if originally named
as Trustee hereunder. The predecessor Trustee shall, nevertheless, at the
written request of the successor Trustee, pay over to the successor Trustee
all moneys at the time held by it hereunder; and the Company and the
predecessor Trustee, upon payment or provision therefor of any amounts then
due the predecessor Trustee pursuant to the provisions of Section 10.2,
shall execute and deliver such instruments and do such other things as may
reasonably be required for more fully and certainly vesting and confirming
in the successor Trustee all such rights, powers, trusts, duties and
obligations. The Company shall promptly give notice of the appointment of
such successor Trustee to the Holders of all Securities in the manner and
to the extent provided in subdivision (c) of Section 10.10.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series under any of
the methods herein provided, the Company, the predecessor Trustee and each
successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts
and duties of the predecessor Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the predecessor Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of that or those series
as to which the predecessor Trustee is not retiring shall continue to be
vested in the predecessor Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the predecessor
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
predecessor Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such predecessor Trustee shall
duly assign, transfer and deliver to such successor Trustee all property
and money held by such predecessor Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates. The Company shall promptly give notice of the
appointment of such successor Trustee with respect to one or more (but not
all) series of Securities to the Holders of such series in the manner and
to the extent provided in subdivision (c) of Section 10.10
SECTION 10.8. Any corporation into which the Trustee or any successor to
it in the trust created by this Indenture may be merged or converted, or
with which it or any successor to it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which
the Trustee or any successor to it shall be a party, shall be the successor
Trustee under this Indenture without the execution or filing of any
instruments or any further act on the part of any of the parties hereto.
SECTION 10.9. (a) Subject to the provisions of subdivision (b) of this
Section 10.9, if the Trustee, in its individual capacity, shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the
Company or of any other obligor upon the Securities of any series (other
than a relationship of the nature specified in subdivision (b) of this
Section 10.9) within three months prior to a default (as defined in
subdivision (c) of this Section 10.9) or subsequent to such a default,
then, unless and until such default shall be cured, the Trustee shall set
apart and hold in a special account for the benefit of the Trustee
individually, the Holders of the Securities and the holders of other
indenture securities (as defined in subdivision (c) of this Section 10.9):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or
interest, effected after the beginning of such three months' period
and valid as against the Company and its other creditors, except any
such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subdivision, or from the
exercise of any right of set-off which the Trustee could have
exercised if a petition in bankruptcy had been filed by or against the
Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three
months' period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the Company and its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any person (other than the Company) who is liable
thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in
cash, securities or other property in respect of claims filed against
the Company in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal bankruptcy laws or applicable
state law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of
such three months' period and such property was received as security
therefor simultaneously with the creation thereof, and if the Trustee
shall sustain the burden of proving that at the time such property was
so received the Trustee had no reasonable cause to believe that a
default as defined in subdivision (c) of this Section 10.9 would occur
within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three months' period for property held as security at
the time of such substitution shall, to the extent of fair value of the
property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created
in renewal of or in substitution for or for the purpose of repaying or
refunding any pre-existing claim of the Trustee as such creditor, such
claim shall have the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between
the Trustee, the Holders of Securities of any series and the holders of
other indenture securities in such manner that the Trustee, the Holders of
Securities of any series and the holders of other indenture securities
realize, as a result of payments from such special account and payments of
dividends on claims filed against the Company in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal bankruptcy
laws or applicable state law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on
account of the receipt by it from the Company of the funds and property in
such special account and before crediting to the respective claims of the
Trustee, the Holders of Securities of any series and the holders of other
indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal bankruptcy laws or applicable state law, but after crediting
thereon receipts on account of the indebtedness represented by their
respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term ``dividends'' shall include
any distribution with respect to such claim, in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal bankruptcy
laws or applicable state law, whether such distribution is made in cash,
securities, or other property, but shall not include any such distribution
with respect to the secured portion, if any, of such claim. The court in
which such bankruptcy, receivership or proceeding for reorganization is
pending shall have jurisdiction (i) to apportion between the Trustee, the
Holders of Securities of any series, and the holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds
and property held in such special account and the proceeds thereof, or (ii)
in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee, the Holders of Securities
of any series, and the holders of other indenture securities, with respect
to their respective claims, in which event it shall not be necessary to
liquidate or to appraise the value of any securities or other property held
in such special account or as security for any such claim, or to make a
specific allocation of such distributions as between the secured and
unsecured portions of such claims, or otherwise to apply the provisions of
this paragraph as a mathematical formula.
Any trustee who has resigned or been removed after the beginning of such
three months' period shall be subject to the provisions of this subsection
as though such resignation or removal had not occurred. If any trustee has
resigned or been removed prior to the beginning of such three months'
period, it shall be subject to the provisions of this subdivision if and
only if the following conditions exist-
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such trustee had continued
as Trustee, occurred after the beginning of such three months' period;
and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of subdivision (a) of this
Section 10.9 a creditor relationship arising from-
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year
or more at the time of acquisition by the Trustee; and for the
purposes of this clause the term ``security'' shall mean any note,
bond, debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, investment contract, certificate of deposit for a
security, or, in general, any interest or instrument commonly known as
a ``security'' or any certificate of interest or participation in,
temporary or interim certificate for, receipt for, or guaranty of, any
of the foregoing;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the Holders
of Securities of any series as provided in Section 10.10 with respect
to advances by the Trustee as such;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subdivision (c) of
this Section 10.9;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve
Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subdivision (c) of this Section 10.9.
(c) As used in this Section 10.9:
(1) the term ``default'' shall mean any failure to make payment in
full of the principal of (or premium, if any, on) or interest on any
of the Securities or upon the other indenture securities when and as
such principal, premium, if any, or interest becomes due and payable;
(2) the term ``other indenture securities'' shall mean securities upon
which the Company is an obligor (as defined in the Trust Indenture Act
of 1939, as amended) outstanding under any other indenture (A) under
which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subdivision (a) of this
Section 10.9, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account;
(3) the term ``cash transaction'' shall mean any transaction in which
full payment for goods or securities sold is made within seven days
after delivery of the goods or securities in currency or in checks or
other orders drawn upon banks or bankers and payable upon demand;
(4) the term ``self-liquidating paper'' shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the
security is received by the Trustee simultaneously with the creation
of the creditor relationship with the Company arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange,
acceptance or obligation; and
(5) the term ``Company'' shall mean any obligor upon the Securities at
the time in question.
SECTION 10.10. (a) The Trustee shall, so long as any Securities of any
series are outstanding hereunder, transmit to the Holders, as hereinafter
provided, within 60 days after May 15 of each year, beginning with the year
, a brief report as of such May 15 with respect to any of the
following events which may have occurred within the previous twelve months
(but if no such event has occurred within such period no report need be
transmitted)-
(1) any change to the eligibility under Section 10.5 and qualification
under Section 10.4 of the Trustee to serve as Trustee under this
Indenture;
(2) the creation of or any material change to a relationship specified
in subsections (1) through (10) of the first paragraph of Section 10.4
hereof.
(3) the character and amount of any advances (and if the Trustee
elects so to state the circumstances surrounding the making thereof)
made by it as Trustee which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or
charge, prior to that of the Securities, on property or funds held or
collected by it as a Trustee, except that the Trustee shall not be
required (but may elect) to state such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal
amount of the Securities outstanding on such date;
(4) the amount, interest rate and maturity date of all other
indebtedness owing to it in its individual capacity, on the date of
such report, by the Company or any other obligor under this Indenture,
with a brief description of any property held as collateral security
therefor, except an indebtedness based upon a creditor relationship
arising in any manner described in paragraph (2), (3), (4) or (6) of
subdivision (b) of Section 10.9;
(5) any change to the property and funds physically in the possession
of the Trustee in such capacity on the date of such report;
(6) any additional issue of Securities which it has not previously
reported; and
(7) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in
the opinion of the Trustee materially affects the Securities, except
action in respect of a default, notice of which has been or is to be
withheld by the Trustee in accordance with Section 10.3.
(b) The Trustee shall, so long as any Securities of any series shall be
outstanding hereunder, also transmit to the Holders, as hereinafter
provided, within the times hereinafter specified, a brief report with
respect to the character and amount of any advances (and if the Trustee so
elects to state the circumstances surrounding the making thereof) made by
the Trustee, as such, since the date of the last report transmitted
pursuant to the provisions of subdivision (a) of this Section 10.10 (or if
no such report has been so transmitted, since the date of the execution of
this Indenture), for the reimbursement of which it claims or may claim a
lien or charge prior to that of the Securities, on property or funds held
or collected by the Trustee, as such, and which it has not previously
reported pursuant to this paragraph, if such advances remaining unpaid at
any time aggregate more than 10% of the principal amount of Securities
outstanding at such time, such report to be so transmitted within 90 days
after such time.
(c) All reports required by this Section 10.10, and all other reports or
notices which are required by any other provision of this Indenture to be
transmitted in accordance with the provisions of this Section, shall be
transmitted by mail, first class postage pre-paid to all Holders, as the
names and addresses of such Holders appear upon the Security Register.
The Trustee shall, at the time of the transmission to the Holders of any
report or notice pursuant to this Section 10.10, file a copy thereof with
each stock exchange, if any, upon which the Securities are listed and with
the Commission. The Company will notify the Trustee when Securities are
listed on a stock exchange.
SECTION 10.11. The Trustee shall preserve, in as current a form as is
reasonably practicable, all information furnished it pursuant to
subdivision (d) of Section 3.3 hereof, or received by it as paying agent
hereunder. The Trustee may destroy (1) any information so furnished to it
by the Company upon receipt of new information from the Company, (2) any
information received by it as a paying agent, by delivering to itself, as
Trustee, not earlier than 45 days after an interest payment date on the
Securities, a list containing the names and addresses of the Holders of
Securities obtained from such information since the delivery of the last
previous list, if any, and (3) any list delivered to itself, as Trustee,
which was compiled from information received by it as paying agent upon the
receipt of a new list so delivered.
Within five business days after receipt by the Trustee of a written
application by any three or more Holders of Securities stating that the
applicants desire to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and accompanied by a
copy of the form of proxy or other communication which such applicants
proposed to transmit, and by reasonable proof that each such applicant has
owned a Security or Securities for a period of at least six months
preceding such application, the Trustee shall, at its election, either (1)
afford to such applicants access to all information so furnished to or
received by the Trustee and not destroyed pursuant to the provisions of
this Section 10.11, or (2) inform such applicants as to the approximate
number of Holders according to the most recent information so furnished to
or received by the Trustee, and as to the approximate cost of mailing to
the Holders the form of proxy or other communication, if any, specified in
such application. If the Trustee shall elect not to afford to such
applicants access to such information, the Trustee shall, upon the written
request of such applicants, mail to all Holders whose names and addresses
are contained in the then current information filed with the Trustee as
aforesaid, copies of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and the payment, or provision for the
payment, of the reasonable expenses of such mailing, unless within five
days after such tender, the Trustee shall mail to such applicants, and file
with the Commission, together with a copy of the material to be mailed, a
written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interest of the Holders or would be
in violation of applicable law. Such written statement shall specify the
basis of such opinion. If the Commission, after granting opportunity for a
hearing upon the objections specified in said written statement and on
notice to the Trustee, shall enter an order refusing to sustain any of such
objections, or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity
for a hearing, that all objections sustained have been met and shall enter
an order so declaring, the Trustee shall comply with such determination
with reasonable promptness after such determination and the renewal of the
aforesaid tender; otherwise the Trustee shall be relieved of any obligation
or duty to such applicants respecting their application.
Neither the Company nor the Trustee nor any Authenticating Agent nor any
paying agent nor any Security registrar shall be liable or accountable to
the Company or to any Holder by reason of disclosure of any such
information as to the names and addresses of Holders in accordance with the
provisions of this Section 10.11, regardless of the source from which such
information was derived, nor by reason of the mailing of any material
pursuant to a request made under this Section 10.11.
SECTION 10.12. The Trustee or any Authenticating Agent or any paying agent
or Security registrar in its individual or any other capacity may buy, own,
hold and sell any of the Securities or any other evidences of indebtedness
or other securities, whether heretofore or hereafter created or issued, of
the Company or any Subsidiary or Affiliate of the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, paying
agent or Security registrar; and any Authenticating Agent and, subject to
the provisions of this Article X, the Trustee may engage or be interested
in any financial or other transaction with the Company or any Subsidiary or
Affiliate, including, without limitation, secured and unsecured loans to
the Company or any Subsidiary or Affiliate, and may maintain any and all
other general banking and business relations with the Company and any
Subsidiary or Affiliate, and may act as trustee under an indenture with
respect to indebtedness thereof, with like effect and in the same manner
and to the same extent as if the Trustee were not a party to this
Indenture; and no implied covenant shall be read into this Indenture
against the Trustee in respect of any such matters.
SECTION 10.13. The Trustee may comply in good faith with any rule,
regulation or order of the Commission made pursuant to the terms and
provisions of the Trust Indenture Act of 1939, as amended, and shall be
fully protected in so doing notwithstanding that such rule, regulation or
order may thereafter be amended or rescinded or determined by judicial or
other authority to be invalid for any reason, but nothing herein contained
shall require the Trustee to take any action or omit to take any action in
accordance with such rule, regulation or order, except as otherwise
required by subdivisions (a) and (b) of Section 10.1.
SECTION 10.14. At any time when any of the Securities remain outstanding
there may be an Authenticating Agent with respect to one or more series of
Securities appointed by the Trustee to act on its behalf and subject to its
direction in connection with the authentication of the Securities of such
series as set forth in Articles III, IV, V, IX and XI. Such Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States or of any State or Territory or of the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $20,000,000, and being
subject to supervision or examination by Federal, State, Territorial, or
District of Columbia authority and (if there be such a corporation willing
and able to act as Authenticating Agent on reasonable and customary terms)
having its principal office and place of business in the State of Delaware
or in the Borough of Manhattan of The City of New York. If such corporation
publishes reports of conditions at least annually, pursuant to law or to
the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 10.14 the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which any
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency business of any Authenticating Agent, shall continue to be
the Authenticating Agent without the execution or filing of any paper or
any further act on the part of the Trustee or such Authenticating Agent.
Any Authenticating Agent with respect to one or more series of Securities
may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the
agency of any Authenticating Agent by giving written notice of termination
to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 10.14, the Trustee may appoint a successor
Authenticating Agent with respect to any series of Securities which shall
be acceptable to the Company, shall give written notice of such appointment
to the Company, and the Company shall mail notice of such appointment to
all Holders of Securities of the series with respect to which such
Authenticating Agent will serve, as the names and addresses of such Holders
appear upon the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers, duties and responsibilities of its predecessor hereunder,
with like effect as if originally named as Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 10.14.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled
to be reimbursed for such payments subject to the provisions of Section
10.2. An Authenticating Agent shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee.
If an appointment is made pursuant to this Section, the Securities shall
have endorsed thereon, in addition to the Trustee's Certificate, an
Authenticating Agent's Certificate in the following form:
This is one of the Securities of the series designated and referred to in
the within-mentioned Indenture.
As Authenticating Agent
By
Authorized Officer
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1. The Company, when authorized by resolution of its Board, and
the Trustee, subject to the conditions and restrictions in this Indenture
contained, may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act of 1939 as then in effect) for one or more of the
following purposes:
(a) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor
corporation of the covenants, agreements and obligations of the
Company pursuant to Article IX;
(b) to add to the covenants and agreements of the Company for the
benefit of the Holders of all or any series of Securities (and if such
covenants and agreements are for the benefit of less than all series
of Securities, stating that such covenants and agreements are
expressly being included solely for the benefit of such series), and
to surrender any right or power herein reserved to or conferred upon
the Company;
(c) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons;
(d) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination (i) shall become
effective only when there is no Security outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision or (ii) shall not apply to
any such outstanding Security;
(e) to establish the form or terms of Securities of any series as
permitted by Section 2.1;
(f) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 10.7(b);
(g) to cure any ambiguity or to correct or supplement any defective or
inconsistent provision contained in this Indenture or in any
supplemental indenture; or
(h) to make such provisions with respect to matters or questions
arising under this Indenture as may be necessary or desirable and not
inconsistent with this Indenture.
The Trustee is hereby authorized to join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture, to make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.1 may be executed by the Company and the Trustee without the consent of
the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 11.2.
SECTION 11.2. With the consent (evidenced as provided in Section 7.1) of
the Holders (or persons entitled to vote, or to give consents respecting
the same) of not less than a majority in principal amount of the
outstanding Securities of each series affected by such supplemental
indenture, the Company, when authorized by a resolution of its Board, and
the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto (which shall conform to the provisions of
the Trust Indenture Act of 1939 as then in effect) for the purpose of
adding any provisions to or modifying or altering in any manner or
eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying or altering in any manner the rights and
obligations of the Holders of such Securities and of the Company; provided,
however, that no such supplemental indenture shall (i) change the Stated
Maturity of the principal of (premium, if any, on), or the interest on, any
Security, or reduce the principal amount of (premium, if any, on), or the
rate of interest on any Security, or change the Currency in which the
principal of (and premium, if any) or interest on such Securities is
denominated or payable, or reduce the amount of the principal of an
Original Issue Discount Security that would be payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 6.1 without the
consent of the Holder of each outstanding Security so affected, or (ii)
reduce the aforesaid percentage of Securities of any series the Holders of
which are required to consent to any such supplemental indenture, without
the consent of the Holders of each outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect
the rights under this Indenture of the Holders of Securities of any other
series.
Upon the request of the Company accompanied by a Certified Resolution
authorizing the execution of any such supplemental indenture and upon the
filing with the Trustee of evidence of the consent of Holders of Securities
affected thereby as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this Section
11.2 to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such consent shall approve the substance
thereof.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 11.2 the
Company shall mail, first class postage prepaid, to the Holders of the
Securities affected thereby at their last addresses as they shall appear
upon the Security Register, a notice, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 11.3. Upon the execution of any supplemental indenture pursuant to
the provisions of this Article XI, or of Section 9.1, this Indenture shall
be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and
immunities under this Indenture of the Trustee, the Company and the Holders
of Securities affected thereby shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 11.4. Securities of any series authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of
this Article XI, or after any action taken at a Holders' meeting pursuant
to Article XII, may bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture or as to any action
taken at any such meeting; and in such case, suitable notation may be made
upon outstanding Securities affected thereby after proper presentation and
demand. If the Company shall so determine, Securities of any series so
modified as to conform, in the opinion of the Trustee and the Board, to any
modification or alteration of this Indenture contained in any such
supplemental indenture, or to any action taken at any such meeting, may be
prepared by the Company, authenticated by the Trustee or an Authenticating
Agent on its behalf and delivered in exchange for outstanding Securities of
such series upon demand of and without cost to, the Holders thereof, upon
surrender of such Securities.
SECTION 11.5. The Trustee may receive and shall, subject to the provisions
of Section 10.1, be fully protected in relying upon an Opinion of Counsel
as conclusive evidence that any supplemental indenture executed pursuant to
this Article XI is authorized or permitted by the terms of this Indenture
and that it is not inconsistent therewith.
SECTION 11.6. Nothing in this Article contained shall affect or limit the
right or obligation of the Company to execute and deliver to the Trustee
any instrument of further assurance or other instrument which elsewhere in
this Indenture it is provided shall be delivered to the Trustee.
ARTICLE XII
MEETINGS OF HOLDERS
SECTION 12.1. A meeting of Holders of any series of Securities may be
called at any time and from time to time pursuant to the provisions of this
Article XII for any of the following purposes:
(1) to give any notice to the Company or to the Trustee, or to give
any direction to the Trustee or to waive or consent to the waiving of
any default hereunder and its consequences, or to take any other
action authorized to be taken by such Holders pursuant to any of the
provisions of Article VI;
(2) to remove the Trustee or appoint a successor trustee pursuant to
the provisions of Article X;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified aggregate principal amount of the
Securities of that series under any other provision of this Indenture,
or authorized or permitted by law.
SECTION 12.2. The Trustee may at any time call a meeting of Holders of
Securities of any series to take any action specified in Section 12.1, to
be held at such time and at such place in any of the city in which the
principal executive offices of the Company are located, the City of
Wilmington, Delaware, the city in which the principal corporate trust
office of the Trustee is located, the City of Chicago or in the Borough of
Manhattan of The City of New York, as the Trustee shall determine. Notice
of every meeting of such Holders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such
meeting, shall be mailed by the Trustee, first class postage prepaid, to
the Company, and to the Holders of Securities of that series at their last
addresses as they shall appear upon the Security Register, not less than 20
nor more than 60 days prior to the date fixed for the meeting.
Any meeting of the Holders of Securities of any series shall be valid
without notice if the Holders of all Securities of that series then
outstanding are present in person or by proxy, or if notice is waived
before or after the meeting by the Holders of all outstanding Securities of
that series, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived
notice.
SECTION 12.3. In case at any time the Company, pursuant to resolution of
its Board, or Holders of not less than a majority in aggregate principal
amount of the Securities of any series then outstanding, shall have
requested the Trustee to call a meeting of Holders of Securities of that
series to take any action specified in Section 12.1, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or such
Holders in the amount above specified may determine the time and the place
in any of the city in which the principal executive offices of the Company
are located, the City of Wilmington, Delaware, the city in which the
principal corporate trust office of the Trustee is located, the City of
Chicago or in the Borough of Manhattan of The City of New York, for such
meeting and may call such meeting for the purpose of taking such action, by
mailing or causing to be mailed notice thereof as provided in Section 12.2.
SECTION 12.4. To be entitled to vote at any meeting of Holders of
Securities of any series a person shall (a) be a registered Holder of one
or more Securities of that series, or (b) be a person appointed by an
instrument in writing as proxy for the registered Holder or Holders of
Securities of that series. The only persons who shall be entitled to be
present or to speak at any meeting of Holders shall be the persons entitled
to vote at such meeting and their counsel and any representatives of the
Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 12.5. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Holders of Securities of any series, in regard to proof of
the holding of Securities of that series and of the appointment of proxies,
and in regard to the appointment and duties of inspectors of votes, and
submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall think fit. Unless otherwise determined by the Company
pursuant to Section 7.1, such regulations may fix a record date and time
for purposes of determining the registered Holders of any series of
Securities entitled to vote at such meeting, which record date shall be (i)
the later of 30 days prior to the first solicitation of the vote at such
meeting or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 3.3 (d) hereof or
(ii) such other date determined by the Trustee. If the Trustee sets such a
record date only those persons who are registered Holders of such
Securities at the record date and time so fixed shall be entitled to vote
at such meeting whether or not they shall be such Holders at the time of
the meeting. Such regulations may further provide that written instruments
appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 7.2 or other proof. Except
as otherwise permitted or required by any such regulations, the holding of
such Securities shall be proved in the manner specified in Section 7.2 and
the appointment of any proxy shall be proved in the manner specified in
Section 7.2 or by having the signature of the person executing the proxy
witnessed or guaranteed by any bank, banker or trust company satisfactory
to the Trustee.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities of any series as provided in Section
12.3, in which case the Company or such Holders calling the meeting, as the
case may be, shall in like manner appoint a temporary chairman. A permanent
chairman and a permanent secretary of the meeting shall be elected by vote
of the Holders of a majority in principal amount of the Securities of that
series represented at the meeting and entitled to vote.
Subject to the provisions of Section 7.4, at any meeting each Holder of
Securities of any series or proxy shall be entitled to one vote for each
$1,000 principal amount at Stated Maturity (or the Dollar equivalent
thereof based upon the Market Exchange Rate on the latest date for which
such rate was established on or before the date for determining the Holders
entitled to perform such act, if the principal amount of any Securities of
any series is denominated in any Foreign Currency) of Securities of that
series, provided, however, that no vote shall be cast or counted at any
meeting in respect of any Securities of that series challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding.
The chairman of the meeting shall have no right to vote other than by
virtue of Securities of that series held by him or instruments in writing
as aforesaid duly designating him as the person to vote on behalf of other
such Holders. At any meeting of Holders of Securities of that series, the
presence of persons holding or representing any number of such Securities
shall be sufficient for a quorum. Any meeting of such Holders duly called
pursuant to the provisions of Section 12.2 or 12.3 may be adjourned from
time to time by vote of the Holders of a majority in principal amount of
the Securities of that series represented at the meeting and entitled to
vote, and the meeting may be held as so adjourned without further notice.
SECTION 12.6. The vote upon any resolution submitted to any meeting of
Holders of Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Securities of that
series or of their representatives by proxy and the principal amount of the
Securities of that series voted by the ballot. The permanent chairman of
the meeting shall appoint two inspectors of votes, who shall count all
votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports
in duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Holders shall be prepared by the secretary
of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts, setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 12.2. The record shall be signed and verified
by the affidavits of the permanent chairman and secretary of the meeting
and one of the duplicates shall be delivered to the Company and the other
to the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 12.7. Nothing in this Article XII contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Holders of Securities of any series or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the
exercise of any right or rights conferred upon or reserved to the Trustee
or to the Holders of Securities of that series under any of the provisions
of this Indenture or of such Securities.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
OR CERTAIN OBLIGATIONS
SECTION 13.1. If (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than any
Securities which shall have been destroyed, lost or stolen and in lieu of
or in substitution for which other Securities shall have been authenticated
and delivered) and not theretofore cancelled, or (b) all the Securities not
theretofore cancelled or delivered to the Trustee for cancellation shall
have become due and payable, or are by their terms to become due and
payable at their Stated Maturity within one year or are to be called for
redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with
the Trustee as trust funds the entire amount sufficient to pay at Stated
Maturity or upon redemption all of the Securities (other than any
Securities which shall have been destroyed, lost or stolen and in lieu of
or in substitution for which other Securities shall have been authenticated
and delivered) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal (and premium, if any) and interest due or
to become due to such date of Stated Maturity or Redemption Date, as the
case may be, but, excluding, however, the amount of any moneys for the
payment of principal of (and premium, if any, on) or interest on the
Securities theretofore deposited with the Trustee and (1) repaid by the
Trustee to the Company in accordance with the provisions of Section 13.3,
or (2) paid by the Trustee to any State pursuant to its unclaimed property
or similar laws, and if in either case the Company shall also pay or cause
to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect, and the Trustee, on demand
of the Company accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that in the opinion of the signers all conditions
precedent to the satisfaction and discharge of this Indenture have been
complied with, and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this
Indenture. The Company agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee in
connection with the Indenture or the Securities, and any such obligation
for reimbursement shall survive this Indenture.
SECTION 13.2. Any moneys, U.S. Government Obligations, and Eligible
Obligations which at any time shall be deposited by the Company or on its
behalf with the Trustee or any paying agent (other than the Company) for
the purpose of paying or redeeming any of the Securities shall be held in
trust and applied by the Trustee to the payment, to the Holders of the
particular Securities for the payment or redemption of which such moneys
have been deposited, of all sums due and to become due thereon for
principal (and premium, if any) and interest, or analogous payments as
contemplated by Section 13.4, upon presentation and surrender of such
Securities at the office of the Trustee or any paying agent, all subject,
however, to the provisions hereinafter contained in this Article XIII.
Neither the Company nor the Trustee (except as provided in Section 10.2)
nor any paying agent shall be required to pay interest on any moneys so
deposited.
The Company shall pay and shall indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against U.S. Government Obligations
or Eligible Obligations deposited pursuant to Section 13.4 or the interest
and principal received in respect of such obligations other than any
payable by or on behalf of Holders.
The Trustee shall deliver or pay to the Company from time to time upon the
request of the Company any money, U.S. Government Obligations, or Eligible
Obligations held by it as provided in Section 13.4 which, in the opinion of
any independent firm of public accountants of recognized standing selected
by the Board expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have
been required to be deposited for the purpose for which such money, U.S.
Government Obligations, or Eligible Obligations were deposited or received.
SECTION 13.3. Any moneys deposited with the Trustee or any paying agent
remaining unclaimed by the Holders of Securities for three years after the
date upon which the principal of (premium if any, on) or interest on such
Securities shall have become due and payable, shall be repaid to the
Company by the Trustee or such paying agent, upon demand, and such Holders
shall thereafter be entitled to look only to the Company for payment
thereof; provided, however, that, before being required to make any such
payment to the Company, the Trustee may, at the expense of the Company,
cause to be mailed to the Holders of such Securities, at their last
addresses as they appear on the Security Register, notice that such moneys
remain unclaimed and that, after a date named in said notice, the balance
of such moneys then unclaimed will be returned to the Company.
Upon the satisfaction and discharge of this Indenture as to the Securities
of any series, all moneys then held by any paying agent other than the
Trustee hereunder shall, upon demand of the Company, be repaid to it and
thereupon such paying agent shall be released from all further liability
with respect to such moneys.
SECTION 13.4. Except as otherwise provided in this Section 13.4 or
pursuant to Section 2.1, the Company may terminate its obligations as to
the Securities of any series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or stolen Securities which have
been replaced or Securities which are paid pursuant to Section 3.1 or
Securities for whose payment money or securities have theretofore been
held in trust and thereafter repaid to the Company, as provided in
Sections 13.2 and 13.3) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it
hereunder; or
(b)(1) the Company has irrevocably deposited or caused to be deposited
with the Trustee or a paying agent (and conveyed all right, title and
interest for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds in trust solely for the benefit of the Holders
for that purpose), (A) money in an amount sufficient, or (B) U.S.
Government Obligations (if the Securities of the series are
denominated in Dollars) or Eligible Obligations (if the Securities of
the series are denominated in a Foreign Currency) maturing as to
principal and interest in such amounts and at such times as are
sufficient in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee (without consideration of any
reinvestment of such interest), or (C) a combination thereof in an
amount sufficient, to pay principal (and premium, if any) and interest
on the outstanding Securities of such series on the dates such
installments are due to redemption or maturity, and any mandatory
sinking fund payments or analogous payments applicable to such
outstanding Securities;
(2) such deposit as described in this Section 13.4 will not result in
a breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it
is bound;
(3) no defaults as defined in Section 6.1 shall have occurred and be
continuing on the date of such deposit, and no default under Section
6.1(e) or 6.1(f) shall have occurred and be continuing on the 91st day
after such date;
(4) the Company shall have delivered to the Trustee (i) either (A) a
ruling received from the Internal Revenue Service to the effect that
the Holders of the Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
the Company's exercise of its option under this Section 13.4 and will
be subject to Federal income tax on the same amount and in the same
manner and at the same times as would have been the case if such
option had not been exercised, or (B) an Opinion of Counsel by
recognized counsel who is not an employee of the Company to the same
effect as the ruling described in Clause (A) and (ii) an Opinion of
Counsel to the effect that, after the passage of 90 days following the
deposit, (x) the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally, or (y) if a court was to rule
under any such law in any case or proceeding that the trust funds
remained property of the Company (AA) assuming such trust funds
remained in the Trustee's possession prior to such court ruling to the
extent not paid to Holders of Securities of such series, the Trustee
will hold, for the benefit of the Holders of such Securities, a valid
and perfected security interest in such trust funds that is not
avoidable in bankruptcy or otherwise, and (BB) the Holders of
Securities will be entitled to receive adequate protection of their
interests in such trust funds if such trust funds are used;
(5) the Company has paid or caused to be paid all sums then payable by
the Company hereunder and under such Securities; and
(6) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
provided for herein relating to the satisfaction and discharge of this
Indenture with respect to Securities of such series have been complied
with.
Notwithstanding the foregoing Clause (b) prior to the end of the 90-day
period referred to in subclause (b)(4)(ii) above, none of the Company's
obligations under this Indenture shall be discharged, and subsequent to the
end of such 90-day period only the Company's obligations in Sections 2.5,
2.6, 3.1, 3.2, 10.2 and 13.2 shall survive until the Securities of such
series are no longer outstanding. If and when a ruling from the Internal
Revenue Service or Opinion of Counsel referred to in subclause (b)(4)(i)
above is able to be provided specifically without regard to, and not in
reliance upon, the continuance of the Company's obligations under Section
3.1, then the Company's obligations under such Section 3.1 shall cease upon
delivery to the Trustee of such ruling or Opinion of Counsel and compliance
with the other conditions precedent provided for herein relating to the
satisfaction and discharge of this Indenture with respect to Securities of
such series.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to such
Securities except for those surviving obligations specified above.
SECTION 13.5. The Trustee or a paying agent (other than the Company) shall
hold, in trust, the money, U.S. Government Obligations or Eligible
Obligations deposited with it pursuant to Section 13.4 hereof. The Trustee
or paying agent shall have been irrevocably instructed to apply the
deposited money and the proceeds from the U.S. Government Obligations or
Eligible Obligations in accordance with the terms of this Indenture and the
terms of the Securities of the series to the payment of principal (and
premium, if any) and interest on such Securities.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.1. Nothing in this Indenture, expressed or implied, is intended
or shall be construed to confer upon, or to give to, any person or
corporation, other than the parties hereto, their successors and assigns,
and the Holders of the Securities of any series, any right, remedy or claim
under or by reason of this Indenture or any provisions hereof; and the
provisions of this Indenture are for the exclusive benefit of the parties
hereto, their successors and assigns, any Authenticating Agent or paying
agent and the Holders of the Securities of any series.
SECTION 14.2. Unless otherwise specifically provided, the certificate or
opinion of any independent firm of public accountants of recognized
standing selected by the Board shall be conclusive evidence of the
correctness of any computation made under the provisions of this Indenture.
The Company shall furnish to the Trustee upon its request a copy of any
such certificate or opinion.
SECTION 14.3. In case any one or more of the provisions contained in this
Indenture or in the Securities of any series shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
this Indenture, but this Indenture shall be construed as if such invalid or
illegal or unenforceable provisions had never been contained herein.
If any provision of this Indenture limits, qualifies or conflicts with the
duties imposed by operation of subsection (c) of Section 318 of the Trust
Indenture Act of 1939, as amended, the imposed duties shall control.
SECTION 14.4. Whenever in this Indenture the Company shall be required to
do or not to do anything so long as any of the Securities of any series
shall be outstanding, the Company shall, notwithstanding any such
provision, not be required to comply with such provisions if it shall be
entitled to have this Indenture satisfied and discharged pursuant to the
provisions hereof, even though in either case the Holders of any of the
Securities of that series shall have failed to present and surrender them
for payment pursuant to the terms of this Indenture.
SECTION 14.5. Although this Indenture, for convenience and for the purpose
of reference, is dated as of , the actual date of execution
by the Company and by the Trustee is as indicated by their respective
acknowledgments hereto annexed.
SECTION 14.6. Unless otherwise expressly provided, any order, notice,
request, demand, certificate or statement of the Company required or
permitted to be made or given under any provision hereof shall be
sufficiently executed if signed by its Chairman of the Board, its Chief
Executive Officer, its President or one of its Vice Presidents and by its
Vice President, Finance, its Treasurer or one of its Assistant Treasurers
or its Secretary or one of its Assistant Secretaries.
Upon any application, demand or request by the Company to the Trustee to
take any action under any of the provisions of this Indenture, the Company
shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action, have been complied with, and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent
have been complied with.
Each certificate or opinion by or on behalf of the Company with respect to
compliance with a condition or covenant provided for in this Indenture
(other than certificates provided pursuant to Section 3.4 of this
Indenture) shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or
opinion are based; (3) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or
opinion of or representations by counsel, unless such officer knows that
the certificate or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the
same are erroneous. Any certificate, statement or Opinion of Counsel may be
based, insofar as it relates to factual matters, upon information which is
in the possession of the Company, upon the certificate, statement or
opinion of or representations by an officer or officers of the Company,
unless such counsel knows that the certificate, statement or opinion or
representations with respect to the matters upon which his certificate,
statement, or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Company or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Company, unless such officer or counsel,
as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are
erroneous. Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm
is independent.
SECTION 14.7. If any Interest Payment Date or other payment date shall
fall on a day other than a Business Day, then any payment or deposit by or
on behalf of the Company required under the terms hereof to be made on such
date may be made instead on the next succeeding Business Day with the same
force and effect as if made on such date.
SECTION 14.8. All notices to or demands upon the Trustee shall be in
writing and may be served or presented, and such demands may be made, at
the principal office of the Trustee,
, attention: . Any notice to or demand upon
the Company shall be deemed to have been sufficiently given or served by
the Trustee or any Holder for all purposes, by being mailed by registered
mail addressed to the Company, attention of the President, at 3711 Kennett
Pike, Greenville, DE 19807, or at such other address as may be filed in
writing by the Company with the Trustee.
SECTION 14.9. All the covenants, promises and agreements in this Indenture
contained by or on behalf of the Company, or by or on behalf of the
Trustee, shall bind and inure to the benefit of their respective successors
and assigns, whether so expressed or not.
SECTION 14.10. The descriptive headings of the several Articles of this
Indenture are inserted for convenience only and shall not control or affect
the meaning or construction of any of the provisions hereof.
SECTION 14.11. This Indenture may be simultaneously executed in any number
of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the
same instrument.
SECTION 14.12. This Indenture shall be governed in accordance with the
internal laws of the State of .
IN WITNESS WHEREOF, SEARS ROEBUCK ACCEPTANCE CORP. has caused this
Indenture to be signed in its corporate name by its ,
and its corporate seal to be affixed hereto and attested to by one of its
and has
caused this Indenture to be signed in its corporate name by one of its
and impressed with its corporate seal, attested to by one of
its , all as of the day and year first above written.
SEARS ROEBUCK ACCEPTANCE CORP.
By
(CORPORATE SEAL)
Attest:
By
(CORPORATE SEAL)
Attest:
STATE OF DELAWARE
[RIGHT BRACE] SS.:
COUNTY OF NEW CASTLE
I, , a Notary Public in and for the County and State
aforesaid, DO HEREBY CERTIFY that , the , and
, , of SEARS ROEBUCK ACCEPTANCE CORP.,
who are personally known to me to be the same persons whose names are
subscribed to the foregoing Indenture as such and
, appeared before me this day in person, and acknowledged that
they signed, sealed and delivered the said Indenture as their free and
voluntary act, and as the free and voluntary act of said Company for the
uses and purposes therein set forth, and caused the corporate seal of said
Company to be thereto affixed.
GIVEN under my hand and notarial seal, this day of .
Notary Public
My Commission Expires:
[SEAL]
STATE OF
[RIGHT BRACE] SS.:
COUNTY OF
I, , a Notary Public in and for the County and State
aforesaid, DO HEREBY CERTIFY that , , and ,
, of Trustee under the foregoing
Indenture, who are personally known to me to be the same persons whose
names are subscribed to the foregoing instrument as such and appeared
before me this day in person, and acknowledged that they signed, sealed and
delivered the said Indenture as their free and voluntary act, and as the
free and voluntary act of said corporation for the uses and purposes
therein set forth, and caused the corporate seal of said corporation to be
thereto affixed.
GIVEN under my hand and notarial seal, this day of .
Notary Public
My Commission Expires:
[SEAL]
EXHIBIT 4(b)
SEARS, ROEBUCK AND CO.
Sears Tower
Chicago, Illinois 60684
May 15, 1995
Sears Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, Delaware 19807
Gentlemen:
Sears Roebuck Acceptance Corp. ("SRAC"), as registrant,
and Sears, Roebuck and Co. ("Sears"), as co-registrant, have
filed a registration statement (Registration Statement No.
33-58139) with the Securities and Exchange Commission, and
presently propose to file Amendment No. 1 thereto (the
"Registration Statement"). The Registration Statement, as
proposed to be amended, relates to up to $3 billion
aggregate initial offering price of Debt Securities to be
issued by SRAC (the "Debt Securities"). Subject to the
provisions contained in the form of Indenture, pursuant to
which the Debt Securities are proposed to be issued, which
is proposed to be filed as an exhibit to Amendment No. 1 to
the Registration Statement (the "Indenture"), SRAC will be
required to maintain a Fixed Charge Coverage Ratio (as
defined in the Indenture) for any fiscal quarter of not less
than 1.10 and SRAC has agreed to cause Sears to continue to
own and hold all legal title to and beneficial interest in
all of the outstanding voting stock of SRAC.
This is to confirm our agreement ("Fixed Charge
Coverage and Ownership Agreement") that Sears will (a) pay
SRAC such amounts which, together with any other earnings
available to SRAC therefor, are sufficient for SRAC to
maintain a Fixed Charge Coverage Ratio for any fiscal
quarter of not less than 1.10 as long as SRAC is required by
the provisions of the Indenture relating to any outstanding
Debt Securities to maintain such Fixed Charge Coverage Ratio
and (b) continue to own and to hold all legal title to and
beneficial interest in all of the outstanding voting stock
of SRAC as long as SRAC is required by the provisions of the
Indenture relating to any outstanding Debt Securities to
cause Sears to own and hold such title and interest.
This agreement is made for the benefit of the holders
of outstanding Debt Securities under the Indenture (the
"Holders"). SRAC will cause Sears to observe and perform in
all material respects all covenants or agreements of Sears
contained in this agreement. Sears agrees that any Holder
may bring a direct and immediate action against Sears to
enforce Sears obligations hereunder.
If the foregoing satisfactorily sets forth the terms
and conditions of our agreement, please indicate your
acceptance thereof by the signature of a duly authorized
officer in the space provided below and on the duplicate
original of this letter which is enclosed.
Very truly yours,
SEARS, ROEBUCK AND CO.
By:
Alice M. Peterson
Vice President and Treasurer
Accepted:
SEARS ROEBUCK ACCEPTANCE CORP.
By:
Keith E. Trost
President
EXHIBIT 5
SEARS, ROEBUCK AND CO.
Sears Tower
Chicago, Illinois 60684
ROBERT J. PENCE
Senior Counsel
Corporate Law-Dept. 966
312-875-2823
May 19, 1995
Sears Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, Delaware 19870
Sears, Roebuck and Co.
Sears Tower
Chicago, Illinois 60684
Ladies and Gentlemen:
I have examined the Registration Statement on Form
S-3, Registration No. 33-58139 and Amendment No. 1 thereto
to be filed with the Securities and Exchange Commission on
or about May 19, 1995 (the "Registration Statement") by
Sears Roebuck Acceptance Corp. (the "Company") and Sears,
Roebuck and Co. in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), of
$3,000,000,000 principal amount of debt securities (the
"Debt Securities") for an offering to be made on a
continuous or delayed basis pursuant to the provisions of
Rule 415 under the Act. I have examined the form of
Indenture (the "Indenture"), between the Company and the
Trustee, to be filed with the Registration Statement, under
which the Debt Securities are to be issued. I am familiar
with the proceedings heretofore taken, and with the
additional proceedings proposed to be taken, by the Company
in connection with the authorization, registration, issuance
and sale of the Debt Securities.
Subject to the proposed additional proceedings
being taken as now contemplated prior to the issuance of the
Debt Securities and the terms of the Debt Securities being
otherwise in compliance with then applicable law, I am of
the opinion that the Debt Securities will, upon the issuance
and sale thereof in the manner referred to in the
Registration Statement, be legally issued and binding
obligations of the Company in accordance with their terms,
subject to insolvency, bankruptcy, reorganization or other
laws relating to or affecting the enforcement of creditors'
rights or by general equity principles.
I consent to the use of this opinion as an exhibit
to the Registration Statement and to the reference to me in
the Prospectus which is part of the Registration Statement.
Very truly yours,
Robert J. Pence
Senior Counsel
Corporate Law Department
Sears, Roebuck and Co.
EXHIBIT 15(b)
Sears, Roebuck and Co.
Sears Tower
Chicago, Illinois
We have reviewed, in accordance with standards established
by the the American Institute of Certified Public
Accountants, the unaudited interim financial information
of Sears, Roebuck and Co. for the periods ended April 1,
1995 and April 2, 1994, as indicated in our report dated May
15, 1995; because we did not perform an audit, we expressed
no opinion on that information.
We are aware that our report referred to above, which was
included in your Quarterly Report on Form 10-Q for the
quarter ended April 1, 1995, is being used in this
Registration Statement.
We also are aware that the aforementioned report, pursuant
to Rule 436(c) under the Securities Act of 1933, is not
considered a part of the Registration Statement prepared or
certified by an accountant or a report prepared or certified
by an accountant within the meaning of Sections 7 and 11 of
that Act.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Chicago, Illinois
May 19, 1995
EXHIBIT 23(a)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this
Amendment No. 1 to Registration Statement No. 33-58139 of
Sears Roebuck Acceptance Corp. (the "Company") on Form S-3
of our report dated January 26, 1995, appearing in (and
incorporated by reference in) the Annual Report on Form 10-K
of Sears Roebuck Acceptance Corp. for the year ended
December 31, 1994, and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this
Registration Statement. We also consent to the use in this
Registration Statement of our report dated January 26, 1995 on
the Company's Summary Financial Information included as
Exhibit 99 to this Registration Statement.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
May 19, 1995
EXHIBIT 23(b)
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement of Sears Roebuck Acceptance Corp. on
Form S-3 of our report dated February 24, 1995 (May 10, 1995 as to Note
4), which expresses an unqualified opinion and includes an explanatory
paragraph relating to the Company changing its method of accounting for
postretirement benefits in 1992, appearing in a filing on Form 8-K (dated
May 15, 1995) of Sears, Roebuck and Co. for the year ended December 31,
1994, and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration
Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Chicago, Illinois
May 19, 1995
EXHIBIT 26
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(National Association)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 Chase Manhattan Plaza, New York, New York
(Address of principal executive offices)
10081
(Zip Code)
________________
SEARS ROEBUCK ACCEPTANCE CORP.
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
51-0080535
(I.R.S. Employer Identification No.)
3711 Kennett Pike
Greenville, Delaware
(Address of principal executive offices)
19807
(Zip Code)
__________________________________
Debt Securities
(Title of the indenture securities)
_____________________________________________________________________
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control with the obligor.
(See Note on Page 2.)
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12) , Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan
Bank (National Association) and The Chase Bank of New York (National
Association) to commence business and a copy of approval of merger of said
corporations, all of which documents are still in effect. (See Exhibit T-1
(Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which documents are
still in effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is
in default. (Not applicable).
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12), Registration No.
22-19019.)
7. -- A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising or examining
authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
___________________
1.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized , all in the City of New York, and the
State of New York, on the 5th day April, 1995.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By /s/ Edward C. Morelli
Edward C. Morelli
Second Vice President
_________________
2.Exhibit 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on December 31,
1994, published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
Charter Number 2370 Comptroller of the Currency Northeastern
District
Statement of Resources and Liabilities
ASSETS
Thousands
of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 4,517,179
Interest-bearing balances 7,001,642
Held to maturity securities 1,593,325
Available-for-sale securities 4,669,255
Federal funds sold and securities purchased under
agreements to resell in domestic offices of the bank
and of its Edge and Agreement subsidiaries, and in
IBFs:
Federal funds sold 3,651,850
Securities purchased under agreements to resell 0
Loans and lease financing receivable:
Loans and leases, net of unearned income $ 50,879,818
LESS: Allowance for loan and lease losses 1,073,196
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income, allowance,
and reserve 49,806,622
Assets held in trading accounts 13,112,807
Premises and fixed assets (including capitalized leases) 1,758,500
Other real estate owned 480,982
Investments in unconsolidated subsidiaries and
associated companies 55,722
Customers' liability to this bank on acceptances
outstanding 611,839
Intangible assets 787,948
Other assets 6,145,452
TOTAL ASSETS $94,193.123
LIABILITIES
Deposits:
In domestic offices $29,536,028
Noninterest-bearing $ 11,648,377
Interest-bearing 17,887,651
In foreign offices, Edge and Agreement subsidiaries,
and IBFs 36,020,612
Noninterest-bearing $ 2,320,293
Interest-bearing 33,700,319
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge and Agreement subsidiaries,
and in IBFs:
Federal funds purchased 1,014,936
Securities sold under agreements to repurchase 678,033
Demand notes issued to the U.S. Treasury 300,000
Trading liabilities 8,066,477
Other borrowed money:
With original maturity of one year or less 2,940,252
With original maturity of more than one year 427,525
Mortgage indebtedness and obligations under
capitalized leases 40,550
Bank's liability on acceptances executed and
outstanding 616,531
Subordinated notes and debentures 2,360,000
Other liabilities 5,195,890
TOTAL LIABILITIES 87,196,834
Limited-life preferred stock and related surplus 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock 915,576
Surplus 4,656,010
Undivided profits and capital reserves 1,478,713
Net unrealized holding gains (losses) on
available-for-sale securities (64,959)
Cumulative foreign currency translation adjustments 10,949
TOTAL EQUITY CAPITAL 6,996,289
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL $94,193,123
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and
to the best of our knowledge and belief has been prepared in conformance with
the instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Richard J. Boyle Directors
(Signed) Donald H. Trautlein
EXHIBIT 99
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Stockholder and Board of Directors
of Sears Roebuck Acceptance Corp.
We have audited the statement of financial position of Sears
Roebuck Acceptance Corp. (a wholly-owned subsidiary of Sears,
Roebuck and Co.) as of December 31, 1994 and 1993, and the
related statements of income, stockholder's equity, and cash
flows for each of the three years in the period ended December
31, 1994 and have issued our report thereon dated January 26,
1995. Such financial statements and our report thereon are
incorporated by reference in the Company's Annual Report on
Form 10-K for the year ended December 31, 1994 and in this
Prospectus.
We have also previously audited, in accordance with generally
accepted auditing standards, the statements of financial
position as of December 31, 1992, 1991, and 1990, and the
related statements of income, stockholder's equity, and cash
flows for the years ended December 31, 1991 and 1990 (none of
which are presented herein), and we expressed unqualified
opinions on those financial statements. In our opinion, the
information set forth in the Summary Financial Information for
each of the five years in the period ended December 31, 1994,
appearing on page 5 of this Prospectus, is fairly stated, in
all material respects in relation to the financial statements
from which it has been derived.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Philadelphia, Pennsylvania
January 26, 1995
