SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 18, 1997
SEARS ROEBUCK ACCEPTANCE CORP.
(Exact name of registrant as specified in charter)
Delaware 1-4040 51-0080535
(State or Other (Commission (IRS Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
3711 Kennett Pike, Greenville, Delaware 19807
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (302) 888-3112
Item 5. Other Events.
On September 18, 1997, Registrant executed a Pricing
Agreement with Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Representative of the several underwriters named therein, relating to
$150,000,000 aggregate principal amount of Registrant's 6.70% Notes due
September 18, 2007 pursuant to an Underwriting Agreement executed September
18, 1997, with Merrill Lynch, Pierce, Fenner & Smith Incorporated,
relating to debt securities.
On September 23, 1997, Registrant executed a Pricing
Agreement with Morgan Stanley & Co. Incorporated, as Representatives of the
several underwriters named therein, relating to $250,000,000 aggregate
principal amount of Registrant's 7.50% Notes due October 15, 2027 pursuant to
an Underwriting Agreement executed September 23, 1997, with Morgan
Stanley & Co. Incorporated, relating to debt securities.
On October 3, 1997, Registrant executed a Pricing
Agreement with Goldman, Sachs & Co., as Representatives of the several
underwriters named therein, relating to $300,000,000 aggregate principal
amount of Registrant's 6.875% Notes due October 15, 2017 pursuant to an
Underwriting Agreement dated June 25, 1997, with Goldman, Sachs & Co.
Incorporated, relating to debt securities.
Item 7. Financial Statements, Pro Forma Financial
Information and Exhibits.
Exhibit No.
1(a) Pricing Agreement, dated September 18, 1997, among
Registrant, Sears, Roebuck and Co. ("Sears") and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
1(b) Pricing Agreement, dated September 23, 1997, among
Registrant, Sears and Morgan Stanley & Co.
Incorporated.
1(c) Pricing Agreement, dated October 3, 1997, among Registrant
Sears and Goldman, Sachs & Co.
1(d) Underwriting Agreement, dated September 18, 1997, among
Registrant, Sears and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
1(e) Underwriting Agreement, dated September 23, 1997, among
Registrant, Sears and Morgan Stanley & Co.
Incorporated.
1(e) Underwriting Agreement, dated June 25, 1997, among Registrant,
Sears and Goldman, Sachs & Co. Incorporated herein by reference
to Registrant's Current Report on Form 8-K dated May 13, 1997
(File No. 1-4040).
4(a) Form of 6.70% Note.
4(b) Form of 7.50% Note.
4(c) Form of 6.875% Note.
5 Opinion of Nancy K. Bellis dated October 2, 1997,
relating to the validity of $150,000,000 aggregate
principal amount of 6.70% Notes due September 18, 2007,
$250,000,000 aggregate principal amount of 7.50%
Notes due October 15, 2027 and $300,000,000 aggregate
principal amount of 6.875% Notes due October 15, 2017.
23 Consent of Nancy K. Bellis (included in Exhibit 5).
SIGNATURES
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned thereunto duly
authorized.
SEARS ROEBUCK ACCEPTANCE CORP.
Date: October 14, 1997 By:/S/George F. Slook
George F. Slook
Vice President and
Assistant Secretary
EXHIBIT INDEX
Exhibit No.
1(a) Pricing Agreement, dated September 18, 1997, among
Registrant, Sears, Roebuck and Co. ("Sears") and
Merrill Lynch, Pierce, Fenner & Smith Incorporated.
1(b) Pricing Agreement, dated September 23, 1997, among
Registrant, Sears and Morgan Stanley & Co.
Incorporated.
1(c) Pricing Agreement, dated October 3, 1997, among Registrant
Sears and Goldman, Sachs & Co.
1(d) Underwriting Agreement, dated September 18, 1997, among
Registrant, Sears and Merrill Lynch, Pierce, Fenner &
Smith Incorporated.
1(e) Underwriting Agreement, dated September 23, 1997, among
Registrant, Sears and Morgan Stanley & Co.
Incorporated.
1(e) Underwriting Agreement, dated June 25, 1997, among Registrant,
Sears and Goldman, Sachs & Co. Incorporated herein by reference
Registratnt's Current Report on Form 8-K dated May 13, 1997 (File
No. 1-4040.
4(a) Form of 6.70% Note.
4(b) Form of 7.50% Note.
4(c) Form of 6.875% Note.
5 Opinion of Nancy K. Bellis dated October 2, 1997,
relating to the validity of $150,000,000 aggregate
principal amount of 6.70% Notes due September 18, 2007,
$250,000,000 aggregate principal amount of 7.50%
Notes due October 15, 2027 and $300,000,000 aggregate
principal amount of 6.875% Notes due October 15, 2017.
23 Consent of Nancy K. Bellis (included in Exhibit 5).
Exhibit 1(a)
PRICING AGREEMENT
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
As Representatives of the several Underwriters named
in Schedule I hereto
World Financial Center
North Tower
New York, NY 10281
September 18, 1997
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated September 18, 1997 (the "Underwriting
Agreement"), executed between the Company and Sears, Roebuck and Co.
("Sears"), on the one hand, and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, on the other hand, to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its
entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of
the representations and warranties set forth therein shall be deemed to have
been made at and, except where otherwise specified, as of the date of this
Pricing Agreement, except that each representation and warranty with respect
to the Prospectus in Sections 2 and 3 of the Underwriting Agreement shall be
deemed to be a representation and warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined) and also a
representation and warranty as of the date of this Pricing Agreement in
relation to the Prospectus as amended or supplemented. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein
as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Very truly yours,
SEARS ROEBUCK ACCEPTANCE CORP.
By: /S/Keith E. Trost
SEARS, ROEBUCK AND CO.
By: /S/Alice M. Peterson
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
As Representative of the several Underwriters
By:/S/Parker Weil
Vice President
SCHEDULE I
Principal
Amount of
Designated
Securities to
Underwriter be purchased
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $ 75,000,000
Morgan Stanley & Co. Incorporated 75,000,000
Total $ 150,000,000
SCHEDULE II
Title of Designated Securities:
6.70% Notes due September 18, 2007
Aggregate principal amount:
$150,000,000
Price to Public:
100.00% of the principal amount of
the Designated Securities, plus accrued
interest from September 23, 1997 to the Time of
Delivery
Purchase Price by Underwriters:
99.35% of the principal amount of the
Designated Securities, plus accrued
interest from September 23, 1997 to the Time of
Delivery
Indenture:
Indenture, dated as of May 15, 1995,
between the Company and The Chase Manhattan
Bank, N.A., as Trustee
Maturity:1
Interest Rate:1
Interest Payment dates:1
Redemption Provisions:
None
Sinking Fund Provisions:
None
Time of Delivery:
9:00 A.M., Chicago time, September 23, 1997
Funds in which payment by Underwriters to Company to be made:
Same day funds
Method of Payment:
Wire transfer to The Chase Manhattan Bank, for the Account of Sears
Roebuck Acceptance Corp., Account No. 900-9000317
Closing Location:
Chicago, Illinois and Delaware
Delayed Delivery:
None
Counsel:
To the Company and Sears, Nancy K. Bellis, Assistant General Counsel-
Corporate & Securities, Sears, Roebuck and Co.
Latham & Watkins
To the Underwriters, Cleary, Gottlieb, Steen & Hamilton
FORM OF NOTE
[FORM OF FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Number $.............
CUSIP NO.__________________
SEARS ROEBUCK ACCEPTANCE CORP.
6.70% Note due September 18, 2007
6.70% 6.70%
Due 2007 Due 2007
Sears Roebuck Acceptance Corp., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars upon presentation and surrender of this Note, on the eighteenth day
of September, 2007, at the office or agency of the Company in the Borough of
Manhattan of The City of New York or, at the option of the holder hereof,
such office or agency, if any, maintained by the Company 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, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts, and to pay interest on said
principal sum at the rate of 6.70% per annum, 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 or at either of such
offices or agencies, in like coin or currency, from the March 18 or September
18, as the case may be, next preceding the date hereof to which interest has
been paid on the Notes referred to on the reverse hereof (unless the date
hereof is the date to which interest has been paid on such Notes, in which
case from the date hereof, or unless the date hereof is prior to March 18,
1998, in which case from September 23, 1997), semiannually, commencing on
March 18, 1998, on March 18 and September 18, until payment of said principal
sum has been made or duly provided for. Notwithstanding the foregoing, if
this Note is dated after any March 1 and before the following March 18, or
after any September 1 and before the following September 18, then this Note
shall bear interest from such following March 18 or September 18, provided,
however, that if the Company shall default in the payment of interest due on
such following March 18 or September 18, this Note shall bear interest from
the next preceding March 18 or September 18 to which interest has been paid
on such Notes, or if no interest has been paid on such Notes, then from
September 23, 1997. The interest so payable on any March 18 or September 18
will, subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, be paid to the person in whose name this Note is
registered at the close of business on the March 1 prior to such March 18 or
the September 1 prior to such September 18. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the registered holder on such Interest Payment Date, and may be paid to the
Person in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Noteholders not less than 10
days prior to such Special Record Date, or may be paid, at any time in any
other lawful manner, all as more fully provided in such Indenture.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof or any indenture supplemental thereto, or
become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by or on behalf of the Trustee
under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ........................................
Sears Roebuck Acceptance Corp.
By _____________________________
President
By ______________________________
Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By:___________________________________
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
6.70% Note due September 18, 2007
1. This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an
indenture dated as of May 15, 1995, executed between the Company and THE
CHASE MANHATTAN BANK, as Trustee; to which indenture and all indentures
supplemental thereto (herein collectively called the "Indenture") reference
is hereby made for a specification of the rights and limitation of rights
thereunder of the Holders of the Securities, the rights and obligations
thereunder of the Company and the rights, duties and immunities thereunder of
the Trustee. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any), may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the "6.70%
Notes due September 18, 2007" of the Company, limited in aggregate principal
amount to $150,000,000 (hereinafter referred to as the "Notes"). All terms
used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
2. In case a default, as defined in the Indenture, shall occur and
be continuing with respect to the Notes, the principal amount of all Notes
then outstanding under the Indenture may be declared or may become due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture. The Indenture provides that such declaration may in certain
events be annulled by the Holders of a majority in principal amount of the
Notes outstanding.
3. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture)
of each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and
premium, if any, on), or the interest on, any Security, or reduce the
principal amount of (and 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 of the Indenture 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.
4. The Indenture also provides that the Holders of a majority in
principal amount of the Securities of any series then outstanding may waive
any past default under the Indenture and its consequences, except a default
in the payment of the principal of or interest or premium, if any, on any of
the Securities.
5. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, at the rate, and in the
Currency, herein prescribed.
6. This Note is transferable by the registered Holder hereof or by
his attorney duly authorized in writing at the office or agency of the
Company in the Borough of Manhattan of The City of New York or, at the option
of the Holder hereof, such office or agency, if any, maintained by the
Company 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, without charge except for any tax or other governmental
charge imposed in relation thereto, but only in the manner and subject to the
limitations provided in the Indenture and upon surrender of this Note. Upon
any such transfer a Note or Notes of authorized denominations for a like
aggregate principal amount and bearing a number not contemporaneously
outstanding will be issued in exchange herefor.
7. The Notes are issuable only as registered Notes without coupons,
in denominations of $1,000 and any multiple of $1,000. In the manner and
subject to the limitations provided in the Indenture, Notes are exchangeable,
without charge except for any tax or other governmental charge imposed in
relation thereto, for other Notes of authorized denominations for a like
aggregate principal amount, at the office or agency of the Company in the
Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, such office or agency, if any, maintained by the Company 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.
8. The Company, the Trustee, any Authenticating Agent, any paying
agent and any Security registrar may deem and treat the registered Holder
hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
by anyone other than the Company or any Security registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and neither the Company, the Trustee, an
Authenticating Agent, a paying agent nor Security registrar shall be affected
by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Note to the extent
of the sum or sums so paid.
9. No recourse shall be had for the payment of the principal of or
the interest on this Note or for any claim based hereon or otherwise in any
manner in respect hereof, or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, of
the Company or of any predecessor or successor corporation, whether by virtue
of any constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof. In the event of any sale or
transfer of its assets and liabilities substantially as an entirety to a
successor corporation, the predecessor corporation may be dissolved and
liquidated as more fully set forth in the Indenture.
Exhibit 1(b)
PRICING AGREEMENT
MORGAN STANLEY & CO. INCORPORATED
As Representatives of the several Underwriters named
in Schedule I hereto
1585 Broadway
New York, New York 10036
September 23, 1997
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated September 23, 1997 (the "Underwriting
Agreement"), executed between the Company and Sears, Roebuck and Co.
("Sears"), on the one hand, and Morgan Stanley & Co. Incorporated, on the
other hand, to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and,
except where otherwise specified, as of the date of this Pricing Agreement,
except that each representation and warranty with respect to the Prospectus
in Sections 2 and 3 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Pricing Agreement in relation to the
Prospectus as amended or supplemented. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein
defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Very truly yours,
SEARS ROEBUCK ACCEPTANCE CORP.
By:/S/Keith E. Trost
SEARS, ROEBUCK AND CO.
By:/S/Alice M. Peterson
Accepted as of the date hereof:
MORGAN STANLEY & CO. INCORPORATED
As Representative of the several Underwriters
By:/S/Michael Fusco
Title:
SCHEDULE I
Underwriter Principal
Amount of
Designated
Securities to
be purchased
Morgan Stanley & Co. Incorporated $ 50,000,000
Goldman, Sachs & Co. 50,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 50,000,000
J.P. Morgan Securities Inc. 50,000,000
Salomon Brothers Inc 50,000,000
Total $ 250,000,000
SCHEDULE II
Title of Designated Securities:
7.50% Notes due October 15, 2027
Aggregate principal amount:
$250,000,000
Price to Public:
99.852% of the principal amount of
the Designated Securities, plus accrued
interest from September 30, 1997 to the Time of
Delivery
Purchase Price by Underwriters:
98.977% of the principal amount of the
Designated Securities, plus accrued
interest from September 30, 1997 to the Time of
Delivery
Indenture:
Indenture, dated as of May 15, 1995,
between the Company and The Chase Manhattan
Bank, as Trustee
Maturity:1
Interest Rate:1
Interest Payment dates:1
Redemption Provisions:1
Sinking Fund Provisions:
None
Time of Delivery:
9:00 A.M., Chicago time, September 30, 1997
Funds in which payment by Underwriters to Company to be made:
Same day funds
Method of Payment:
Wire transfer to The Chase Manhattan Bank, ABA No. 021-0000-21, for
the
Account of Sears Roebuck Acceptance Corp., Account No. 910-2587590
Closing Location:
Chicago, Illinois and Delaware
Delayed Delivery:
None
Counsel:
To the Company and Sears, Nancy K. Bellis, Assistant General Counsel-
Corporate & Securities, Sears, Roebuck and Co.
Latham & Watkins
To the Underwriters, Cleary, Gottlieb, Steen & Hamilton
FORM OF NOTE
[FORM OF FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Number $.............
CUSIP NO.__________________
SEARS ROEBUCK ACCEPTANCE CORP.
7.50% Note due October 15, 2027
7.50% 7.50%
Due 2027 Due 2027
Sears Roebuck Acceptance Corp., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars upon presentation and surrender of this Note, on the fifteenth day
of October, 2027, at the office or agency of the Company in the Borough of
Manhattan of The City of New York or, at the option of the holder hereof,
such office or agency, if any, maintained by the Company 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, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts, and to pay interest on said
principal sum at the rate of 7.50% per annum, 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 or at either of such
offices or agencies, in like coin or currency, from the April 15 or October
15, as the case may be, next preceding the date hereof to which interest has
been paid on the Notes referred to on the reverse hereof (unless the date
hereof is the date to which interest has been paid on such Notes, in which
case from the date hereof, or unless the date hereof is prior to April 15,
1998, in which case from September 30, 1997), semiannually, commencing on
April 15, 1998, on April 15 and October 15, until payment of said principal
sum has been made or duly provided for. Notwithstanding the foregoing, if
this Note is dated after any April 1 and before the following April 15, or
after any October 1 and before the following October 15, then this Note shall
bear interest from such following April 15 or October 15, provided, however,
that if the Company shall default in the payment of interest due on such
following April 15 or October 15, this Note shall bear interest from the next
preceding April 15 or October 15 to which interest has been paid on such
Notes, or if no interest has been paid on such Notes, then from September 30,
1997. The interest so payable on any April 15 or October 15 will, subject to
certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Note is registered at the
close of business on the April 1 prior to such April 15 or the October 1
prior to such October 15. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered holder on
such Interest Payment Date, and may be paid to the Person in whose name this
Note is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice of
which shall be given to Noteholders not less than 10 days prior to such
Special Record Date, or may be paid, at any time in any other lawful manner,
all as more fully provided in such Indenture.
The Notes will not be redeemable prior to October 15, 2007.
Thereafter, the Notes will be subject to redemption at any time at the option
of the Company as a whole or from time to time in part upon not less than 30
nor more than 60 days' notice at the redemption prices (expressed as a
percentage of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date. If the Notes are
redeemed during the twelve month period beginning on October 15 of the years
indicated below, the Redemption Prices will be:
Year Redemption Price
2007 103.676%
2008 103.308%
2009 102.941%
2010 102.573%
2011 102.206%
2012 101.838%
2013 101.470%
2014 101.103%
2015 100.735%
2016 100.368%
2017 and thereafter 100.000%
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof or any indenture supplemental thereto, or
become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by or on behalf of the Trustee
under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ........................................
Sears Roebuck Acceptance Corp.
By ________________________
President
By ________________________
Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By:___________________________________
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
7.50% Note due October 15, 2027
1. This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an
indenture dated as of May 15, 1995, executed between the Company and THE
CHASE MANHATTAN BANK, as Trustee; to which indenture and all indentures
supplemental thereto (herein collectively called the "Indenture") reference
is hereby made for a specification of the rights and limitation of rights
thereunder of the Holders of the Securities, the rights and obligations
thereunder of the Company and the rights, duties and immunities thereunder of
the Trustee. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any), may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the "7.50%
Notes due October 15, 2027" of the Company, limited in aggregate principal
amount to $250,000,000 (hereinafter referred to as the "Notes"). All terms
used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
2. In case a default, as defined in the Indenture, shall occur and
be continuing with respect to the Notes, the principal amount of all Notes
then outstanding under the Indenture may be declared or may become due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture. The Indenture provides that such declaration may in certain
events be annulled by the Holders of a majority in principal amount of the
Notes outstanding.
3. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture)
of each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and
premium, if any, on), or the interest on, any Security, or reduce the
principal amount of (and 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 of the Indenture 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.
4. The Indenture also provides that the Holders of a majority in
principal amount of the Securities of any series then outstanding may waive
any past default under the Indenture and its consequences, except a default
in the payment of the principal of or interest or premium, if any, on any of
the Securities.
5. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, at the rate, and in the
Currency, herein prescribed.
6. This Note is transferable by the registered Holder hereof or by
his attorney duly authorized in writing at the office or agency of the
Company in the Borough of Manhattan of The City of New York or, at the option
of the Holder hereof, such office or agency, if any, maintained by the
Company 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, without charge except for any tax or other governmental
charge imposed in relation thereto, but only in the manner and subject to the
limitations provided in the Indenture and upon surrender of this Note. Upon
any such transfer a Note or Notes of authorized denominations for a like
aggregate principal amount and bearing a number not contemporaneously
outstanding will be issued in exchange herefor.
7. The Notes are issuable only as registered Notes without coupons,
in denominations of $1,000 and any multiple of $1,000. In the manner and
subject to the limitations provided in the Indenture, Notes are exchangeable,
without charge except for any tax or other governmental charge imposed in
relation thereto, for other Notes of authorized denominations for a like
aggregate principal amount, at the office or agency of the Company in the
Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, such office or agency, if any, maintained by the Company 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.
8. The Company, the Trustee, any Authenticating Agent, any paying
agent and any Security registrar may deem and treat the registered Holder
hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
by anyone other than the Company or any Security registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and neither the Company, the Trustee, an
Authenticating Agent, a paying agent nor Security registrar shall be affected
by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Note to the extent
of the sum or sums so paid.
9. No recourse shall be had for the payment of the principal of or
the interest on this Note or for any claim based hereon or otherwise in any
manner in respect hereof, or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, of
the Company or of any predecessor or successor corporation, whether by virtue
of any constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof. In the event of any sale or
transfer of its assets and liabilities substantially as an entirety to a
successor corporation, the predecessor corporation may be dissolved and
liquidated as more fully set forth in the Indenture.
Exhibit 1(c)
PRICING AGREEMENT
Goldman, Sachs & Co.
As Representatives of the several Underwriters named
in Schedule I hereto
85 Broad Street
New York, New York 10004
October 3, 1997
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated June 25, 1997 (the "Underwriting
Agreement"), executed between the Company and Sears, Roebuck and Co.
("Sears"), on the one hand, and Goldman, Sachs & Co., on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). Each of the provisions of the Underwriting
Agreement is incorporated herein by reference in its entirety, and shall be
deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and,
except where otherwise specified, as of the date of this Pricing Agreement,
except that each representation and warranty with respect to the Prospectus
in Sections 2 and 3 of the Underwriting Agreement shall be deemed to be a
representation and warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined) and also a representation and
warranty as of the date of this Pricing Agreement in relation to the
Prospectus as amended or supplemented. Unless otherwise defined herein,
terms defined in the Underwriting Agreement are used herein as therein
defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
may be specified in such Schedule II.<PAGE>
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Very truly yours,
SEARS ROEBUCK ACCEPTANCE CORP.
By:/S/Keith E. Trost
SEARS, ROEBUCK AND CO.
By:/S/Larry R. Raymond
Accepted as of the date hereof:
As Representatives of the several Underwriters
By: /S/Goldman, Sachs & Co.
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
(Goldman, Sachs & Co.)
SCHEDULE I
Underwriter Principal
Amount of
Designated
Securities to
be purchased
Goldman, Sachs & Co. $60,000,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated 60,000,000
Morgan Stanley & Co. Incorporated 60,000,000
J.P. Morgan Securities Inc. 60,000,000
Salomon Brothers Inc 60,000,000
Total $300,000,000
SCHEDULE II
Title of Designated Securities:
6.875% Notes due October 15, 2017
Aggregate principal amount:
$300,000,000
Price to Public:
99.912% of the principal amount of
the Designated Securities, plus accrued
interest from October 8, 1997 to the Time of
Delivery
Purchase Price by Underwriters:
99.037% of the principal amount of the
Designated Securities, plus accrued
interest from October 8, 1997 to the Time of
Delivery
Indenture:
Indenture, dated as of May 15, 1995,
between the Company and The Chase Manhattan
Bank, as Trustee
Maturity:1
Interest Rate:1
Interest Payment dates:1
Redemption Provisions:1
Sinking Fund Provisions:
None
Time of Delivery:
9:00 A.M., Chicago time, October 8, 1997
Funds in which payment by Underwriters to Company to be made:
Same day funds
Method of Payment:
Wire transfer to The Chase Manhattan Bank, ABA No. 021-0000-21,
for
the Account of Sears Roebuck Acceptance Corp., Account No. 910-2587590
Closing Location:
Chicago, Illinois and Delaware<PAGE>
Delayed Delivery:
None
Counsel:
To the Company and Sears, Nancy K. Bellis, Assistant General
Counsel-Corporate & Securities, Sears, Roebuck and Co.
Latham & Watkins
To the Underwriters, Cleary, Gottlieb, Steen & Hamilton
FORM OF NOTE
[FORM OF FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Number $.............
CUSIP NO.__________________
SEARS ROEBUCK ACCEPTANCE CORP.
6.875% Note due October 15, 2017
6.875% 6.875%
Due 2017 Due 2017
Sears Roebuck Acceptance Corp., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars upon presentation and surrender of this Note, on the fifteenth day
of October, 2017, at the office or agency of the Company in the Borough of
Manhattan of The City of New York or, at the option of the holder hereof,
such office or agency, if any, maintained by the Company 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, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts, and to pay interest on said
principal sum at the rate of 6.875% per annum, 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 or at either of such
offices or agencies, in like coin or currency, from the April 15 or October
15, as the case may be, next preceding the date hereof to which interest has
been paid on the Notes referred to on the reverse hereof (unless the date
hereof is the date to which interest has been paid on such Notes, in which
case from the date hereof, or unless the date hereof is prior to April 15,
1998, in which case from October 8, 1997), semiannually, commencing on April
15, 1998, on April 15 and October 15, until payment of said principal sum has
been made or duly provided for. Notwithstanding the foregoing, if this Note
is dated after any April 1 and before the following April 15, or after any
October 1 and before the following October 15, then this Note shall bear
interest from such following April 15 or October 15, provided, however, that
if the Company shall default in the payment of interest due on such following
April 15 or October 15, this Note shall bear interest from the next preceding
April 15 or October 15 to which interest has been paid on such Notes, or if
no interest has been paid on such Notes, then from October 8, 1997. The
interest so payable on any April 15 or October 15 will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be
paid to the person in whose name this Note is registered at the close of
business on the April 1 prior to such April 15 or the October 1 prior to such
October 15. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered holder on such Interest
Payment Date, and may be paid to the Person in whose name this Note is
registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice of which shall
be given to Noteholders not less than 10 days prior to such Special Record
Date, or may be paid, at any time in any other lawful manner, all as more
fully provided in such Indenture.
If any Interest Payment Date of the Maturity Date falls on a day that is
not a Business Day, the interest or principal pament shall be made on the
next day that is a Business Day, and no interest on such payment shall accrue
for the period from and after the Interest Payment Date or the Maturity Date.
Interest on the Notes will be computed on the basis of a 360-day year of
twelve 30-day months.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof or any indenture supplemental thereto, or
become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by or on behalf of the Trustee
under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ........................................
Sears Roebuck Acceptance Corp.
By ___________________________________
President
By ____________________________________
Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By:___________________________________
Authorized Officer
<PAGE>
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
6.875% Note due October 15, 2017
1. This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an
indenture dated as of May 15, 1995, executed between the Company and THE
CHASE MANHATTAN BANK, as Trustee; to which indenture and all indentures
supplemental thereto (herein collectively called the "Indenture") reference
is hereby made for a specification of the rights and limitation of rights
thereunder of the Holders of the Securities, the rights and obligations
thereunder of the Company and the rights, duties and immunities thereunder of
the Trustee. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any), may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the "6.875%
Notes due October 15, 2017" of the Company, limited in aggregate principal
amount to $300,000,000 (hereinafter referred to as the "Notes"). All terms
used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
2. The Notes will be redeemable, in whole or in part, at the option of
the Company at any time upon not less than 30 nor more than 60 days' notice,
at a redemption price equal to the greater of (i) 100% of the principal
amount of such Notes or (ii) as determined by an Independent Investment
Banker (as defined herein), the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including any
portion of such payments of interest accrued as of the date of redemption)
discounted to the redemption date on a semiannual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus,
in each case, accrued interest thereon to the date of redemption. Unless the
Company defaults in payment of the redemption price, on and after the
redemption date, interest will cease to accrue on the Notes or portions
thereof called for redemption.
"Adjusted Treasury Rate" means, with respect to any redemption
date,
the rate per annum equal to the semiannual equivalent yield to maturity of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date, plus 0.20%.
"Comparable Treasury Issue" means the United States Treasury
security
selected by an Independent Investment Banker as having a maturity comparable
to the remaining term of the Notes to be redeemed that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption
date (A) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference
Treasury Dealer Quotations (if any), or (B) if the Trustee obtains fewer than
three such Reference Treasury Quotations, the average of all such Quotations.
"Independent Investment Banker" means one of the Reference
Treasury
Dealers appointed by the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities
Inc., Morgan Stanley & Co. Incorporated, Salomon Brothers Inc and their
respective successors; provided, however, that if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (A
"Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time)
on the third Business Day preceding such redemption date.
3. In case a default, as defined in the Indenture, shall occur and
be continuing with respect to the Notes, the principal amount of all Notes
then outstanding under the Indenture may be declared or may become due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture. The Indenture provides that such declaration may in certain
events be annulled by the Holders of a majority in principal amount of the
Notes outstanding.
4. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture)
of each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and
premium, if any, on), or the interest on, any Security, or reduce the
principal amount of (and 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 of the Indenture 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.
5. The Indenture also provides that the Holders of a majority in
principal amount of the Securities of any series then outstanding may waive
any past default under the Indenture and its consequences, except a default
in the payment of the principal of or interest or premium, if any, on any of
the Securities.
6. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, at the rate, and in the
Currency, herein prescribed.
7. This Note is transferable by the registered Holder hereof or by
his attorney duly authorized in writing at the office or agency of the
Company in the Borough of Manhattan of The City of New York or, at the option
of the Holder hereof, such office or agency, if any, maintained by the
Company 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, without charge except for any tax or other governmental
charge imposed in relation thereto, but only in the manner and subject to the
limitations provided in the Indenture and upon surrender of this Note. Upon
any such transfer a Note or Notes of authorized denominations for a like
aggregate principal amount and bearing a number not contemporaneously
outstanding will be issued in exchange herefor.
8. The Notes are issuable only as registered Notes without coupons,
in denominations of $1,000 and any multiple of $1,000. In the manner and
subject to the limitations provided in the Indenture, Notes are exchangeable,
without charge except for any tax or other governmental charge imposed in
relation thereto, for other Notes of authorized denominations for a like
aggregate principal amount, at the office or agency of the Company in the
Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, such office or agency, if any, maintained by the Company 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.
9. The Company, the Trustee, any Authenticating Agent, any paying
agent and any Security registrar may deem and treat the registered Holder
hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
by anyone other than the Company or any Security registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and neither the Company, the Trustee, an
Authenticating Agent, a paying agent nor Security registrar shall be affected
by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Note to the extent
of the sum or sums so paid.
10. No recourse shall be had for the payment of the principal of or
the interest on this Note or for any claim based hereon or otherwise in any
manner in respect hereof, or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, of
the Company or of any predecessor or successor corporation, whether by virtue
of any constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof. In the event of any sale or
transfer of its assets and liabilities substantially as an entirety to a
successor corporation, the predecessor corporation may be dissolved and
liquidated as more fully set forth in the Indenture.
Exhibit 1(d)
UNDERWRITING AGREEMENT
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
World Financial Center
North Tower
New York, New York 10281
September 18, 1997
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) (the "Securities"). The Company intends to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I
hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of the
Securities specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities"). The Designated
Securities with respect to each Pricing Agreement shall be issued under an
indenture (the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom you will act as
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount
of such Designated Securities, the public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
principal amount of such Designated Securities to be purchased by each
Underwriter and the commission payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
describe, in a manner consistent with the Indenture and the registration
statement and prospectus with respect thereto, the principal terms of such
Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. Each of the Company and Sears, Roebuck and Co. ("Sears")
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement in respect of the
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to you and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, to
you for each of the other Underwriters have been declared effective by the
Commission in such form (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary Prospectus;"
the various parts of such registration statement, including all exhibits
thereto except Form T-1, each as amended at the time such part became
effective, being hereinafter collectively called the "Registration
Statement;" the prospectus relating to the Securities, in the form in which
it has most recently been filed with the Commission on or prior to the date
of this Agreement, being hereinafter called the "Prospectus;" any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
include the documents, if any, incorporated by reference therein pursuant to
the applicable form under the Securities Act of 1933, as amended (the "Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and so incorporated by reference; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated Securities
in the form in which it is first filed with the Commission pursuant to Rule
424(b) of Regulation C under the Act, including any documents incorporated by
reference therein as of the date of such filing);
(b) Except for statements in such documents which do not
constitute part of the Registration Statement or the Prospectus pursuant to
Rule 412 of Regulation C under the Act and after substituting therefor any
statements modifying or superseding such excluded statements (i) the
documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents, when they became effective or were so filed, as the
case may be, contained, in the case of documents which became effective under
the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (ii) any further documents so filed and
incorporated by reference when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain, in the case of
documents which become effective under the Act, an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and, in the case
of documents which are filed under the Exchange Act with the Commission, an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated Securities through
you expressly for use therein; at the Time of Delivery (as defined in Section
5 hereof), the Indenture will be duly qualified under, and will conform in
all material respects to the requirements of, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); and
(c) Except for statements in documents incorporated
therein by reference which do not constitute part of the Registration
Statement or the Prospectus pursuant to Rule 412 of Regulation C under the
Act and after substituting therefor any statements modifying or superseding
such excluded statements, the Registration Statement and the Prospectus
conformed, and any amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be, conform, in
all material respects to the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and as of the applicable filing date as to the Prospectus, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through you expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
3. The Company represents and warrants to, and agrees with each
of the Underwriters that:
(a) Upon payment therefor as provided herein, the
Securities will have been duly and validly authorized and (assuming their due
authentication by the Trustee) will have been duly and validly issued and
will be valid, binding and enforceable obligations of the Company in
accordance with their terms, except as the same may be limited by insolvency,
bankruptcy, reorganization, moratorium, liquidation, fraudulent conveyance
and transfer or other laws similar relating to or affecting the enforcement
of creditors' rights generally or by general equity principles, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be entitled to the benefits of the
Indenture; and
(b) The issue and sale of the Securities pursuant to any
Pricing Agreement and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement will not
conflict with or result in any breach which would constitute a material
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company material to the
Company pursuant to the terms of, any indenture, loan agreement or other
agreement or instrument for borrowed money to which the Company is a party or
by which the Company may be bound or to which any of the property or assets
of the Company, material to the Company, is subject, nor will such action
result in any material violation of the provisions of the Certificate of
Incorporation, as amended or the By-Laws of the Company or, to the best of
its knowledge, any statute or any order, rule or regulation applicable to the
Company of any court or any federal, state or other regulatory authority or
other governmental body having jurisdiction over the Company, and no consent,
approval, authorization or other order of, or filing with, any court or any
such regulatory authority or other governmental body is required for the
issue and sale of the Designated Securities except as may be required under
the Act, the Exchange Act, the Trust Indenture Act and securities laws of the
various states and other jurisdictions in which the Underwriters will offer
and sell the Designated Securities.
4. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by you of the release of the
Designated Securities, the several Underwriters propose to offer the
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Pricing Agreement applicable to any Designated Securities may
provide that the Company and any entity acting as an underwriter with respect
to such Designated Securities may enter into a deferred pricing agreement in
the form set forth in a schedule attached to such Pricing Agreement.
Each Underwriter represents and agrees that it will not, at any time
that such Underwriter is acting as an "underwriter" (as defined in Section
2(11) of the Act) with respect to any Designated Securities, transfer,
deposit or otherwise convey any such Designated Securities, into a trust or
other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interests in,
such Designated Securities without the prior written consent of the Company.
5. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive
certificates registered in the name of Cede & Co., as nominee for the
Depository Trust Company, New York, New York ("DTC") (unless otherwise
specified in the Pricing Supplement) shall be delivered by or on behalf of
the Company to you for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor, by
certified or official bank check or checks or wire transfer, as specified in
such Pricing Agreement, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date
as you and the Company may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
6. Each of the Company and Sears agrees with each of the
Underwriters of Designated Securities:
(a) To make no further amendment or any supplement to
the Registration Statement or the Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Securities and prior to
the Time of Delivery for such Securities without first having furnished you
with a copy of the proposed form thereof and given you a reasonable
opportunity to review the same; to advise you promptly of any such amendment
or supplement after such Time of Delivery and furnish you with copies thereof
and to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company or Sears, respectively, with
the Commission pursuant to Section 13 or 14 of the Exchange Act for so long
as the delivery of a prospectus is required in connection with the offering
or sale of such Securities, and during such same period to advise you,
promptly after the Company or Sears receives notice thereof, of the time when
the Registration Statement, or any amendment thereto, or any amended
Registration Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any Prospectus, or the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, or the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus or
for additional information; and in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any such
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as
you may reasonably request to qualify such Securities for offering and sale
under the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
neither the Company nor Sears shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as you may from time
to time reasonably request, and, if the delivery of a prospectus is required
at any time in connection with the offering or sale of such Securities and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act,
the Exchange Act or the Trust Indenture Act, to notify you and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and
(d) To make generally available to its security holders,
in accordance with the provisions of Rule 158 under the Act or otherwise, as
soon as practicable, but in any event not later than forty-five days after
the end of the fourth full fiscal quarter (ninety days in the case of the
last fiscal quarter in any fiscal year) following the fiscal quarter ending
after the latest of (x) the effective date of the Registration Statement, (y)
the effective date of the post-effective amendment thereto hereinafter
referred to, and (z) the date of the filing of the report hereinafter
referred to, earning statements of the Company and Sears and its consolidated
subsidiaries (which need not be audited) complying with Section 11(a) of the
Act and covering a period of at least twelve consecutive months beginning
after the latest of (i) the effective date of such Registration Statement,
(ii) the effective date of the post-effective amendment, if any, to such
Registration Statement (within the meaning of Rule 158) next preceding the
date of the Pricing Agreement relating to the Designated Securities and (iii)
the date of filing of the last report of the Company or Sears incorporated by
reference into the Prospectus (within the meaning of Rule 158) next preceding
the date of the Pricing Agreement relating to the Designated Securities.
7. The Company agrees with each of the Underwriters of
Designated Securities:
(a) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions for such
Designated Securities, of which termination you agree to give the Company
prompt notice confirmed in writing, and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without your prior written consent, which consent
shall not be unreasonably withheld, except pursuant to arrangements of which
you have been advised by the Company prior to the time of execution of such
Pricing Agreement, which advice is confirmed in writing to you by the end of
the business day following the date of such Pricing Agreement; and
(b) To pay or cause to be paid all expenses, preapproved
by the Company, incident to the performance of its obligations hereunder and
under any Pricing Agreement, including the cost of all qualifications of the
Securities under state securities laws (including reasonable fees of counsel
to the Underwriters in connection with such qualifications and in connection
with legal investment surveys) and the cost of printing this Agreement, any
Pricing Agreement, and any blue sky and legal investment memoranda.
8. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company or Sears
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that each of the Company and Sears shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction.
(b) All corporate proceedings and related matters in
connection with the organization of the Company, the validity of the
Indenture and the registration, authorization, issue, sale and delivery of
the Designated Securities shall have been satisfactory to counsel to the
Underwriters, and such counsel shall have been furnished with such papers and
information as they may reasonably have requested to enable them to pass upon
the matters referred to in this subdivision (b).
(c) Counsel to the Company and Sears shall have
furnished to you such counsel's written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to you in
your reasonable judgment, to the effect that:
(i) Each of the Company and Sears has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its respective state of incorporation;
(ii) All of the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable. The authorized capital stock of the Company
consists of 500,000 shares of common stock, par value $100.00 per share, all
of the issued and outstanding shares of which are owned by Sears, Roebuck and
Co. free and clear of any security interests, claims, liens or encumbrances,
and the authorized capital stock of Sears is as set forth or incorporated by
reference in the Registration Statement;
(iii) SRAC is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly authorized, executed
and delivered on the part of the Company and Sears;
(v) The issue and sale of the Designated
Securities and the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities will not (a) conflict
with or result in any breach which would constitute a material default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company material to the Company,
pursuant to the terms of, any indenture, loan agreement or other agreement or
instrument for borrowed money known to such counsel to which the Company is
a party or by which the Company may be bound or to which any of the property
or assets of the Company material to the Company is subject, (b) result in
any violation of the provisions of the Certificate of Incorporation, as
amended or the By-Laws of the Company or (c) to the best of the knowledge of
such counsel, result in any material violation of any statute or any order,
rule or regulation applicable to the Company of any court or any federal,
state or other regulatory authority or other governmental body having
jurisdiction over the Company, other than the securities laws of the various
states or other jurisdictions which are applicable to the issue and sale of
the Designated Securities, as to which such counsel need express no opinion;
and, to the best knowledge of such counsel, no consent, approval,
authorization or other order of, or filing with, any court or any such
regulatory authority or other governmental body is required for the issue and
sale of the Designated Securities except as has been obtained or effected
under the Act, the Exchange Act, the Trust Indenture Act and securities laws
of the various states or other jurisdictions which are applicable to the
issue and sale of the Designated Securities;
(vi) The Fixed Charge Coverage and Ownership
Agreement and the Extension Agreement have been duly authorized, executed and
delivered by the parties thereto and are valid and binding instruments of the
parties thereto enforceable in accordance with their terms except as the same
may be limited by insolvency, bankruptcy, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other similar laws
relating to or affecting the enforcement of creditors' rights generally and
by general equity principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Indenture has been duly authorized,
executed and delivered on the part of the Company and, as to the Company, is
a valid, binding and enforceable instrument in accordance with its terms
except as the foregoing may be limited by insolvency, bankruptcy,
reorganization, moratorium, liquidation, fraudulent conveyance and transfer
or other similar laws relating to or affecting the enforcement of creditors'
rights generally or by general equity principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and has been qualified under the Trust
Indenture Act; the Designated Securities have been duly authorized and
(assuming their due authentication by the Trustee) have been duly executed,
issued and delivered on the part of the Company and constitute valid and
binding obligations of the Company in accordance with their terms, entitled
to the benefits of the Indenture, except as the same may be limited by
insolvency, bankruptcy, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws relating to or affecting the
enforcement of creditors' rights generally or by general equity principles,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(viii)Such counsel does not know of any pending
legal or governmental proceedings required to be described in the Prospectus
as amended or supplemented (including documents incorporated by reference
therein) which are not described as required;
(ix) Except for statements in such documents
which do not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after substituting
therefor any statements modifying or superseding such excluded statements,
the documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements and related schedules, the
analyses of operations and financial condition and other financial,
statistical and accounting data therein, as to which such counsel need
express no opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder;
(x) Except for statements in such documents
which do not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after substituting
therefor any statements modifying or superseding such excluded statements,
the Registration Statement and the Prospectus as amended or supplemented
(excluding the documents incorporated by reference therein) (other than the
financial statements and related schedules, the analyses of operations and
financial condition and other financial, statistical and accounting data
therein as to which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and the rules and
regulations thereunder; the answers in the Registration Statement to Items 9
and 10 (insofar as it relates to such counsel) of Form S-3 are to the best of
such counsel's knowledge accurate statements or summaries of the matters
therein set forth and fairly present the information called for with respect
to those matters by the Act and the rules and regulations thereunder; and
(xi) Such counsel does not know of any contract
or other document to which the Company or Sears or any subsidiary thereof is
a party required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Prospectus as amended or
supplemented which has not been so filed, incorporated by reference or
described.
In rendering such opinion, such counsel may rely to the
extent such counsel deems appropriate upon certificates of officers or other
executives of the Company, Sears and its business groups and subsidiaries and
of public officials as to factual matters and upon opinions of other counsel.
Such counsel shall also state that: (a) nothing has come to such counsel's
attention which has caused such counsel to believe that any of the documents
referred to in subdivision (viii) above (other than the financial statements
and related schedules, the analyses of operations and financial condition and
other financial, statistical and accounting data therein, as to which such
counsel need express no belief), in each case after excluding any statement
in any such document which does not constitute part of the Registration
Statement or the Prospectus as amended or supplemented pursuant to Rule 412
of Regulation C under the Act and after substituting therefor any statement
modifying or superseding such excluded statement, when it became effective or
was filed, as the case may be, contained, in the case of documents which
became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and, in the case of documents
which were filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (b) nothing has come to such
counsel's attention which has caused such counsel to believe that the
Registration Statement or the Prospectus as amended or supplemented (other
than the financial statements, the analyses of operations and financial
condition and other financial, statistical and accounting data therein, as to
which such counsel need express no belief) contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(d) At the Time of Delivery for such Designated
Securities, Deloitte & Touche LLP, certified auditors, shall have furnished
you a letter or letters, dated the date of delivery thereof in form and
substance satisfactory to you as to such matters as you may reasonably
request.
(e) (i) The Company shall not have sustained, since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus as amended or supplemented, any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree and (ii) since the respective dates as
of which information is given in the Prospectus as amended or supplemented
there shall not have been any material change in the capital stock accounts
or long-term debt of the Company or any material adverse change in the
general affairs, financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which in any such case
described in clause (i) or (ii), in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(f) Subsequent to the date of the Pricing Agreement
relating to the Designated Securities, no downgrading shall have occurred in
the rating accorded to the Company's or Sears senior debt securities by
Moody's Investors Service, Inc. or Standard & Poor's; provided, however, that
this subdivision (f) shall not apply to any such rating agency which shall
have notified you of the rating of the Designated Securities prior to the
execution of the Pricing Agreement.
(g) Subsequent to the date of the Pricing Agreement
relating to the Designated Securities none of (i) the United States shall
have become engaged in the outbreak or escalation of hostilities involving
the United States or there has been a declaration by the United States of a
national emergency or a declaration of war, (ii) a banking moratorium shall
have been declared by either Federal or New York State authorities, or (iii)
trading in securities generally on the New York Stock Exchange shall have
been suspended nor limited or minimum prices shall have been established by
such Exchange, any of which events, in your judgment, renders it inadvisable
to proceed with the public offering or the delivery of the Designated
Securities.
(h) Each of the Company and Sears shall have furnished
or caused to be furnished to you at the Time of Delivery for the Designated
Securities certificates satisfactory to you as to the accuracy at and as of
such Time of Delivery of the representations, warranties and agreements of
the Company and Sears, respectively, herein and as to the performance by each
of the Company and Sears of all its obligations hereunder to be performed at
or prior to such Time of Delivery and the Company shall have also furnished
you similar certificates satisfactory to you as to the matters set forth in
subdivision (a) of this Section 8.
9. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, any prospectus relating to the
Securities or the Prospectus as amended or supplemented, or any amendment or
supplement thereto furnished by the Company or Sears, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or (in the case of the Registration Statement
or the Prospectus as amended or supplemented, or any amendment or supplement
thereto) necessary to make the statements therein not misleading or (in the
case of any Preliminary Prospectus) necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through you expressly for
use in the Prospectus as amended or supplemented relating to such Securities;
and provided, further, that the Company shall not be liable to any
Underwriter or any person controlling such Underwriter under the indemnity
agreement in this subdivision (a) with respect to the Preliminary Prospectus
or the Prospectus or the Prospectus as amended or supplemented, as the case
may be, to the extent that any such loss, claim, damage or liability of such
Underwriter or controlling person results solely from the fact that such
Underwriter sold Designated Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated
by reference) if the Company has previously furnished copies thereof to such
Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
(in the case of the Registration Statement or the Prospectus or the
Prospectus as amended or supplemented, or any amendment or supplement
thereto) necessary to make the statements therein not misleading or (in the
case of any Preliminary Prospectus) necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
(c) Within a reasonable period after receipt by an indemnified
party under subdivision (a) or (b) above of notice of the commencement of any
action with respect to which indemnification is sought under such subdivision
or contribution may be sought under subdivision (d) below, such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof. In case any such action shall be brought against any indemnified
party, the indemnifying party shall be entitled to participate in, and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory
to such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subdivision (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates and also the relative fault of the Company and Sears on the one hand
and the Underwriters of the Designated Securities on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth on the cover page of the Prospectus as amended or
supplemented. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or Sears on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission of the Company or Sears on the one hand and the Underwriters,
directly or through you, on the other hand. With respect to any Underwriter,
such relative fault shall also be determined by reference to the extent (if
any) to which such losses, claims, damages or liabilities (or actions in
respect thereof) with respect to any Preliminary Prospectus result from the
fact that such Underwriter sold Designated Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such Underwriter. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subdivision (d) were determined by per capita allocation among the
indemnifying parties (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subdivision
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subdivision (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subdivision
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 9 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company or Sears and to each person, if any, who controls the Company
within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Securities, you may in your discretion
arrange for yourselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the
purchase of such Designated Securities, then the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Designated Securities, or
the Company notifies you that it has so arranged for the purchase of such
Designated Securities, you or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
you and the Company as provided in subdivision (a) above, the aggregate
principal amount of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
you and the Company as provided in subdivision (a) above, the aggregate
principal amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated Securities,
as referred to in subdivision (b) above, or if the Company shall not exercise
the right described in subdivision (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated
Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 7(b) hereof
and the indemnity and contribution agreements in Section 9 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The respective indemnities, agreements, representations,
warranties and other statements of the Company, Sears and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, the Company, Sears or any officer or director or controlling
person of the Company or Sears, and shall survive delivery of and payment for
the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subdivisions (a) and (e) of Section 9 hereof, the
representations and warranties in subdivisions (b) and (c) of Section 2
hereof and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus as amended or supplemented contained
in any certificate furnished by the Company or Sears pursuant to subdivision
(h) of Section 8 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Act, shall not extend to the extent of any
interest therein of an Underwriter or a controlling person of an Underwriter
if a director, officer or controlling person of the Company or Sears when the
Registration Statement becomes effective or a person who, with his consent,
is named in the Registration Statement as being about to become a director of
the Company or Sears, is a controlling person of such Underwriter, except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public
policy as expressed in the Act. Unless in the opinion of counsel for the
Company or Sears the matter has been settled by controlling precedent, the
Company or Sears will, if a claim for such indemnification is asserted,
submit to a court of appropriate jurisdiction the question whether such
interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
12. If any Pricing Agreement shall be terminated pursuant to
Section 10 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 7(b) and Section 9 hereof; but, if
for any other reason Designated Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing
by you, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery
of such Designated Securities, but the Company shall then be under no further
liability to any Underwriter with respect to such Designated Securities
except as provided in Section 7(b) and Section 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each
of the Underwriters of Designated Securities, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you or by Merrill Lynch, Pierce,
Fenner & Smith Incorporated, representing you.
All statements, requests, notices and agreements hereunder shall be
in writing or by telegram if promptly confirmed in writing and if to the
Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to you as the Representatives at 5500 Sears Tower, Chicago,
Illinois 60606, Attention: Parker Weil; and if to the Company shall be
sufficient in all respects if delivered or sent by registered mail to the
Company at 3711 Kennett Pike, Greenville, Delaware 19807, Attention: Nancy
K. Bellis, Secretary; and if to Sears shall be sufficient in all respects if
delivered or sent by registered mail to Sears at 3333 Beverly Road, Hoffman
Estates, Illinois, Attention: Michael D. Levin, Senior Vice President,
General Counsel and Secretary.
14. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company,
Sears and, to the extent provided in Section 9 and Section 11 hereof, the
officers and directors of the Company and Sears and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement.
16. This Agreement and each Pricing Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of New
York.
17. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Very truly yours,
Sears Roebuck Acceptance Corp.
By:/S/Keith E. Trost
Sears, Roebuck and Co.
By:/S/Alice M. Peterson
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By:Parker Weil
Vice President
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
As Representatives of the several
Underwriters named in Schedule I hereto
World Financial Center
North Tower
New York, New York 10281
,199
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated , 199 (the "Underwriting
Agreement"), executed between the Company and Sears, Roebuck and Co.
("Sears"), on the one hand, and
on the other hand, to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters")
the Securities specified in Schedule II hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and, except where otherwise specified,
as of the date of this Pricing Agreement, except that each representation and
warranty with respect to the Prospectus in Sections 2 and 3 of the
Underwriting Agreement shall be deemed to be a representation and warranty as
of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined) and also a representation and warranty as of the date of
this Pricing Agreement in relation to the Prospectus as amended or
supplemented. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon acceptance hereof by
you on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between the
Company, Sears and each of the Underwriters. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters, the
form of which shall be supplied to the Company upon request. You represent
that you are authorized on behalf of yourselves and on behalf of each of the
other Underwriters named in Schedule I hereto to enter into this Agreement.
Very truly yours,
Sears Roebuck Acceptance Corp.
By:
Sears, Roebuck and Co.
By:
Accepted as of the date hereof:
MERRILL LYNCH, PIERCE,
FENNER & SMITH INCORPORATED
By:_____________________________________
Managing Director
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
Merrill Lynch, Pierce, Fenner & Smith
Incorporated . . . . . . . . . . . . . . . .
Morgan Stanley & Co. Incorporated . . . . . .
___________________
Total . . . . . . . . . . . . . . . . . . . $
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of
the Designated Securities, plus accrued
interest from to the Time of
Delivery [and accrued amortization,
if any, from to the Time
of Delivery]
Purchase Price by Underwriters:
% of the principal amount of the
Designated Securities, plus accrued
interest from to the Time of
Delivery [and accrued amortization,
if any, from to the Time
of Delivery]
Indenture:
Indenture, dated , between
the Company and , as Trustee
Form of Designated Securities:
[Certificated form only][Global form only]
Maturity:1
Interest Rate:*
[ %] [Zero Coupon]
Interest Payment dates:*
[months and dates]
Redemption Provisions:*
[No provision for redemption]
[The Designated Securities may be redeemed,
otherwise than through the sinking fund,
in whole or in part at the option of the
Company, in the amount of $ or an
integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of
principal amount). If [redeemed on or before , %, and
if] redeemed during the 12-month period beginning
,
Year
Redemption Price
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction of refunding]
Sinking Fund Provisions:1
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [, together with (cumulative) (non-cumulative)
redemptions at the option of the Company to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
Time of Delivery:
[ ] A.M., New York time, [ ] ,19
Funds in which payment by Underwriters to Company to be made:
[ ] Clearing House Funds
[ ] Same day funds
Method of Payment:
[Certified or official bank check or checks]
[Wire transfer to ]
Closing Location:
Delayed Delivery:
[None] [Underwriters are authorized to solicit Delayed Delivery
Contracts relating to a maximum of $ in aggregate principal amount
of the Designated Securities. Underwriters' commission shall be % of the
principal amount of Designated Securities for which Delayed Delivery
Contracts have been entered into. Such commission shall be payable to the
order of .]
[Certified or official bank check or checks]
[Wire transfer to ]
Counsel:
To the Company, [ ]
To Sears, [ ]
To the Underwriters, [ ]
[Other Terms]:1
ANNEX II
DELAYED DELIVERY CONTRACT
SEARS ROEBUCK ACCEPTANCE CORP.,
c/o
Attention:
,199
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Sears Roebuck
Acceptance Corp. (hereinafter called the "Company"), and the Company agrees
to sell to the undersigned,
$
principal amount of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus dated , 199 as amended or supplemented, receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from the date from which interest
accrues as set forth below, and on the further terms and conditions set forth
in this contract.
[The undersigned will purchase the Designated Securities from the
Company on , 199 (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from , 199 .]
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts
set forth below:
Each such date on which Designated Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has
agreed to purchase on [the] [each] Delivery Date shall be made to the Company
or its order by [certified or official bank check] [in New York Clearing
House funds at the office of Sears Roebuck Acceptance Corp., Greenville,
Delaware] [or] [by wire transfer, in immediately available funds, to a bank
account specified by the Company], on [the] [such] Delivery Date upon
delivery to the undersigned of the Designated Securities then to be purchased
by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less
than five full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall be
subject to the conditions that (a) the purchase of Designated Securities to
be made by the undersigned shall not on [the] [such] Delivery Date be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (b) the Company, on or before , 199 , shall have
sold to the several Underwriters, pursuant to the Pricing Agreement dated
, 199 with the Company and Sears, Roebuck and Co. ("Sears"), an
aggregate principal amount of Designated Securities equal to $ , minus
the aggregate principal amount of Designated Securities covered by this
contract and other contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Designated Securities
shall not be affected by the failure of any purchaser to take delivery of and
make payment for Designated Securities pursuant to other contracts similar to
this contract.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the Opinion of Counsel for the
Company and Sears delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
This contract shall be governed by, and construed in accordance with,
the internal laws of the State of New York.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contracts need not be on a first-come, first-served basis. If this contract
is acceptable to the Company, it is requested that the Company sign the form
of acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered by the Company.
Yours very truly,
___________________________
By _____________________
(Signature)
__________________________
(Name and Title)
___________________________
(Address)
Accepted, ,199
in Greenville, Delaware
SEARS ROEBUCK ACCEPTANCE CORP.
By _____________________________
(Title)
Exhibit 1(e)
UNDERWRITING AGREEMENT
MORGAN STANLEY & CO. INCORPORATED
1585 Broadway
New York, New York 10036
September 23, 1997
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes to issue and sell from time to time certain of its debt
securities registered under the registration statement referred to in Section
2(a) (the "Securities"). The Company intends to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I
hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and
therein, to issue and sell to the firms named in Schedule I to the applicable
Pricing Agreement (such firms constituting the "Underwriters" with respect to
such Pricing Agreement and the securities specified therein) certain of the
Securities specified in Schedule II to such Pricing Agreement (with respect
to such Pricing Agreement, the "Designated Securities"). The Designated
Securities with respect to each Pricing Agreement shall be issued under an
indenture (the "Indenture") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom you will act as
representatives. This Underwriting Agreement shall not be construed as an
obligation of the Company to sell any of the Securities or as an obligation
of any of the Underwriters to purchase the Securities. The obligation of the
Company to issue and sell any of the Securities and the obligation of any of
the Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount
of such Designated Securities, the public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
principal amount of such Designated Securities to be purchased by each
Underwriter and the commission payable to the Underwriters with respect
thereto and shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. The Pricing Agreement shall also
describe, in a manner consistent with the Indenture and the registration
statement and prospectus with respect thereto, the principal terms of such
Designated Securities. A Pricing Agreement shall be in the form of an
executed writing (which may be in counterparts), and may be evidenced by an
exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing
Agreement shall be several and not joint.
2. Each of the Company and Sears, Roebuck and Co. ("Sears")
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement in respect of the
Securities has been filed with the Securities and Exchange Commission (the
"Commission"); such registration statement and any post-effective amendment
thereto, each in the form heretofore delivered or to be delivered to you and,
excluding exhibits to such registration statement, but including all
documents incorporated by reference in the prospectus included therein, to
you for each of the other Underwriters have been declared effective by the
Commission in such form (any preliminary prospectus included in such
registration statement being hereinafter called a "Preliminary Prospectus;"
the various parts of such registration statement, including all exhibits
thereto except Form T-1, each as amended at the time such part became
effective, being hereinafter collectively called the "Registration
Statement;" the prospectus relating to the Securities, in the form in which
it has most recently been filed with the Commission on or prior to the date
of this Agreement, being hereinafter called the "Prospectus;" any reference
herein to any Preliminary Prospectus or the Prospectus shall be deemed to
include the documents, if any, incorporated by reference therein pursuant to
the applicable form under the Securities Act of 1933, as amended (the "Act"),
as of the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to include any documents filed
after the date of such Preliminary Prospectus or Prospectus, as the case may
be, under the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and so incorporated by reference; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the Prospectus as
amended or supplemented in relation to the applicable Designated Securities
in the form in which it is first filed with the Commission pursuant to Rule
424(b) of Regulation C under the Act, including any documents incorporated by
reference therein as of the date of such filing);
(b) Except for statements in such documents which do not
constitute part of the Registration Statement or the Prospectus pursuant to
Rule 412 of Regulation C under the Act and after substituting therefor any
statements modifying or superseding such excluded statements (i) the
documents incorporated by reference in the Prospectus, when they became
effective or were filed with the Commission, as the case may be, conformed in
all material respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder, and
none of such documents, when they became effective or were so filed, as the
case may be, contained, in the case of documents which became effective under
the Act, an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of documents which were
filed under the Exchange Act with the Commission, an untrue statement of a
material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (ii) any further documents so filed and
incorporated by reference when they become effective or are filed with the
Commission, as the case may be, will conform in all material respects to the
requirements of the Act or the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder and will not contain, in the case of
documents which become effective under the Act, an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, and, in the case
of documents which are filed under the Exchange Act with the Commission, an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter of Designated Securities through
you expressly for use therein; at the Time of Delivery (as defined in Section
5 hereof), the Indenture will be duly qualified under, and will conform in
all material respects to the requirements of, the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"); and
(c) Except for statements in documents incorporated
therein by reference which do not constitute part of the Registration
Statement or the Prospectus pursuant to Rule 412 of Regulation C under the
Act and after substituting therefor any statements modifying or superseding
such excluded statements, the Registration Statement and the Prospectus
conformed, and any amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be, conform, in
all material respects to the requirements of the Act and the Trust Indenture
Act and the rules and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the Registration
Statement and as of the applicable filing date as to the Prospectus, contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter of Designated Securities through you expressly for use in the
Prospectus as amended or supplemented relating to such Securities.
3. The Company represents and warrants to, and agrees with each
of the Underwriters that:
(a) Upon payment therefor as provided herein, the
Securities will have been duly and validly authorized and (assuming their due
authentication by the Trustee) will have been duly and validly issued and
will be valid, binding and enforceable obligations of the Company in
accordance with their terms, except as the same may be limited by insolvency,
bankruptcy, reorganization, moratorium, liquidation, fraudulent conveyance
and transfer or other laws similar relating to or affecting the enforcement
of creditors' rights generally or by general equity principles, including,
without limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and will be entitled to the benefits of the
Indenture; and
(b) The issue and sale of the Securities pursuant to any
Pricing Agreement and the compliance by the Company with all of the
provisions of the Securities, the Indenture and this Agreement will not
conflict with or result in any breach which would constitute a material
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the property or assets of the Company material to the
Company pursuant to the terms of, any indenture, loan agreement or other
agreement or instrument for borrowed money to which the Company is a party or
by which the Company may be bound or to which any of the property or assets
of the Company, material to the Company, is subject, nor will such action
result in any material violation of the provisions of the Certificate of
Incorporation, as amended or the By-Laws of the Company or, to the best of
its knowledge, any statute or any order, rule or regulation applicable to the
Company of any court or any federal, state or other regulatory authority or
other governmental body having jurisdiction over the Company, and no consent,
approval, authorization or other order of, or filing with, any court or any
such regulatory authority or other governmental body is required for the
issue and sale of the Designated Securities except as may be required under
the Act, the Exchange Act, the Trust Indenture Act and securities laws of the
various states and other jurisdictions in which the Underwriters will offer
and sell the Designated Securities.
4. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by you of the release of the
Designated Securities, the several Underwriters propose to offer the
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
The Pricing Agreement applicable to any Designated Securities may
provide that the Company and any entity acting as an underwriter with respect
to such Designated Securities may enter into a deferred pricing agreement in
the form set forth in a schedule attached to such Pricing Agreement.
Each Underwriter represents and agrees that it will not, at any time
that such Underwriter is acting as an "underwriter" (as defined in Section
2(11) of the Act) with respect to any Designated Securities, transfer,
deposit or otherwise convey any such Designated Securities, into a trust or
other type of special purpose vehicle that issues securities or other
instruments backed in whole or in part by, or that represents interests in,
such Designated Securities without the prior written consent of the Company.
5. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive
certificates registered in the name of Cede & Co., as nominee for the
Depository Trust Company, New York, New York ("DTC") (unless otherwise
specified in the Pricing Supplement) shall be delivered by or on behalf of
the Company to you for the account of such Underwriter, against payment by
such Underwriter or on its behalf of the purchase price therefor, by
certified or official bank check or checks or wire transfer, as specified in
such Pricing Agreement, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date
as you and the Company may agree upon in writing, such time and date being
herein called the "Time of Delivery" for such Securities.
6. Each of the Company and Sears agrees with each of the
Underwriters of Designated Securities:
(a) To make no further amendment or any supplement to
the Registration Statement or the Prospectus as amended or supplemented after
the date of the Pricing Agreement relating to such Securities and prior to
the Time of Delivery for such Securities without first having furnished you
with a copy of the proposed form thereof and given you a reasonable
opportunity to review the same; to advise you promptly of any such amendment
or supplement after such Time of Delivery and furnish you with copies thereof
and to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company or Sears, respectively, with
the Commission pursuant to Section 13 or 14 of the Exchange Act for so long
as the delivery of a prospectus is required in connection with the offering
or sale of such Securities, and during such same period to advise you,
promptly after the Company or Sears receives notice thereof, of the time when
the Registration Statement, or any amendment thereto, or any amended
Registration Statement has become effective or any supplement to the
Prospectus or any amended Prospectus has been filed, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use
of any Prospectus, or the suspension of the qualification of such Securities
for offering or sale in any jurisdiction, or the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission for
the amending or supplementing of the Registration Statement or Prospectus or
for additional information; and in the event of the issuance of any such stop
order or of any such order preventing or suspending the use of any such
Prospectus or suspending any such qualification, to use promptly its best
efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as
you may reasonably request to qualify such Securities for offering and sale
under the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of such Securities, provided that in connection therewith
neither the Company nor Sears shall be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) To furnish the Underwriters with copies of the
Prospectus as amended or supplemented in such quantities as you may from time
to time reasonably request, and, if the delivery of a prospectus is required
at any time in connection with the offering or sale of such Securities and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act,
the Exchange Act or the Trust Indenture Act, to notify you and to prepare and
furnish without charge to each Underwriter and to any dealer in securities as
many copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and
(d) To make generally available to its security holders,
in accordance with the provisions of Rule 158 under the Act or otherwise, as
soon as practicable, but in any event not later than forty-five days after
the end of the fourth full fiscal quarter (ninety days in the case of the
last fiscal quarter in any fiscal year) following the fiscal quarter ending
after the latest of (x) the effective date of the Registration Statement, (y)
the effective date of the post-effective amendment thereto hereinafter
referred to, and (z) the date of the filing of the report hereinafter
referred to, earning statements of the Company and Sears and its consolidated
subsidiaries (which need not be audited) complying with Section 11(a) of the
Act and covering a period of at least twelve consecutive months beginning
after the latest of (i) the effective date of such Registration Statement,
(ii) the effective date of the post-effective amendment, if any, to such
Registration Statement (within the meaning of Rule 158) next preceding the
date of the Pricing Agreement relating to the Designated Securities and (iii)
the date of filing of the last report of the Company or Sears incorporated by
reference into the Prospectus (within the meaning of Rule 158) next preceding
the date of the Pricing Agreement relating to the Designated Securities.
7. The Company agrees with each of the Underwriters of
Designated Securities:
(a) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the earlier of (i) the termination of trading restrictions for such
Designated Securities, of which termination you agree to give the Company
prompt notice confirmed in writing, and (ii) the Time of Delivery for such
Designated Securities, not to offer, sell, contract to sell or otherwise
dispose of any debt securities of the Company which mature more than one year
after such Time of Delivery and which are substantially similar to such
Designated Securities, without your prior written consent, which consent
shall not be unreasonably withheld, except pursuant to arrangements of which
you have been advised by the Company prior to the time of execution of such
Pricing Agreement, which advice is confirmed in writing to you by the end of
the business day following the date of such Pricing Agreement; and
(b) To pay or cause to be paid all expenses, preapproved
by the Company, incident to the performance of its obligations hereunder and
under any Pricing Agreement, including the cost of all qualifications of the
Securities under state securities laws (including reasonable fees of counsel
to the Underwriters in connection with such qualifications and in connection
with legal investment surveys) and the cost of printing this Agreement, any
Pricing Agreement, and any blue sky and legal investment memoranda.
8. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in their discretion, to the condition that all
representations and warranties and other statements of the Company or Sears
herein are, at and as of the Time of Delivery for such Designated Securities,
true and correct, the condition that each of the Company and Sears shall have
performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction.
(b) All corporate proceedings and related matters in
connection with the organization of the Company, the validity of the
Indenture and the registration, authorization, issue, sale and delivery of
the Designated Securities shall have been satisfactory to counsel to the
Underwriters, and such counsel shall have been furnished with such papers and
information as they may reasonably have requested to enable them to pass upon
the matters referred to in this subdivision (b).
(c) Counsel to the Company and Sears shall have
furnished to you such counsel's written opinion, dated the Time of Delivery
for such Designated Securities, in form and substance satisfactory to you in
your reasonable judgment, to the effect that:
(i) Each of the Company and Sears has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of its respective state of incorporation;
(ii) All of the outstanding shares of capital
stock of the Company have been duly and validly authorized and issued and are
fully paid and non-assessable. The authorized capital stock of the Company
consists of 500,000 shares of common stock, par value $100.00 per share, all
of the issued and outstanding shares of which are owned by Sears, Roebuck and
Co. free and clear of any security interests, claims, liens or encumbrances,
and the authorized capital stock of Sears is as set forth or incorporated by
reference in the Registration Statement;
(iii) SRAC is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended;
(iv) This Agreement and the Pricing Agreement
with respect to the Designated Securities have been duly authorized, executed
and delivered on the part of the Company and Sears;
(v) The issue and sale of the Designated
Securities and the compliance by the Company with all of the provisions of
the Designated Securities, the Indenture, this Agreement and the Pricing
Agreement with respect to the Designated Securities will not (a) conflict
with or result in any breach which would constitute a material default under,
or result in the creation or imposition of any lien, charge or encumbrance
upon any of the property or assets of the Company material to the Company,
pursuant to the terms of, any indenture, loan agreement or other agreement or
instrument for borrowed money known to such counsel to which the Company is
a party or by which the Company may be bound or to which any of the property
or assets of the Company material to the Company is subject, (b) result in
any violation of the provisions of the Certificate of Incorporation, as
amended or the By-Laws of the Company or (c) to the best of the knowledge of
such counsel, result in any material violation of any statute or any order,
rule or regulation applicable to the Company of any court or any federal,
state or other regulatory authority or other governmental body having
jurisdiction over the Company, other than the securities laws of the various
states or other jurisdictions which are applicable to the issue and sale of
the Designated Securities, as to which such counsel need express no opinion;
and, to the best knowledge of such counsel, no consent, approval,
authorization or other order of, or filing with, any court or any such
regulatory authority or other governmental body is required for the issue and
sale of the Designated Securities except as has been obtained or effected
under the Act, the Exchange Act, the Trust Indenture Act and securities laws
of the various states or other jurisdictions which are applicable to the
issue and sale of the Designated Securities;
(vi) The Fixed Charge Coverage and Ownership
Agreement and the Extension Agreement have been duly authorized, executed and
delivered by the parties thereto and are valid and binding instruments of the
parties thereto enforceable in accordance with their terms except as the same
may be limited by insolvency, bankruptcy, reorganization, moratorium,
liquidation, fraudulent conveyance and transfer or other similar laws
relating to or affecting the enforcement of creditors' rights generally and
by general equity principles, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing (regardless of
whether such enforceability is considered in a proceeding in equity or at
law);
(vii) The Indenture has been duly authorized,
executed and delivered on the part of the Company and, as to the Company, is
a valid, binding and enforceable instrument in accordance with its terms
except as the foregoing may be limited by insolvency, bankruptcy,
reorganization, moratorium, liquidation, fraudulent conveyance and transfer
or other similar laws relating to or affecting the enforcement of creditors'
rights generally or by general equity principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law) and has been qualified under the Trust
Indenture Act; the Designated Securities have been duly authorized and
(assuming their due authentication by the Trustee) have been duly executed,
issued and delivered on the part of the Company and constitute valid and
binding obligations of the Company in accordance with their terms, entitled
to the benefits of the Indenture, except as the same may be limited by
insolvency, bankruptcy, reorganization, moratorium, liquidation, fraudulent
conveyance and transfer or other similar laws relating to or affecting the
enforcement of creditors' rights generally or by general equity principles,
including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(viii) Such counsel does not know of any pending
legal or governmental proceedings required to be described in the Prospectus
as amended or supplemented (including documents incorporated by reference
therein) which are not described as required;
(ix) Except for statements in such documents
which do not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after substituting
therefor any statements modifying or superseding such excluded statements,
the documents incorporated by reference in the Prospectus as amended or
supplemented (other than the financial statements and related schedules, the
analyses of operations and financial condition and other financial,
statistical and accounting data therein, as to which such counsel need
express no opinion), when they were filed with the Commission, complied as to
form in all material respects with the requirements of the Exchange Act, and
the rules and regulations of the Commission thereunder;
(x) Except for statements in such documents
which do not constitute part of the Registration Statement or the Prospectus
pursuant to Rule 412 of Regulation C under the Act and after substituting
therefor any statements modifying or superseding such excluded statements,
the Registration Statement and the Prospectus as amended or supplemented
(excluding the documents incorporated by reference therein) (other than the
financial statements and related schedules, the analyses of operations and
financial condition and other financial, statistical and accounting data
therein as to which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the Act and the rules and
regulations thereunder; the answers in the Registration Statement to Items 9
and 10 (insofar as it relates to such counsel) of Form S-3 are to the best of
such counsel's knowledge accurate statements or summaries of the matters
therein set forth and fairly present the information called for with respect
to those matters by the Act and the rules and regulations thereunder; and
(xi) Such counsel does not know of any contract
or other document to which the Company or Sears or any subsidiary thereof is
a party required to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus as amended or
supplemented or required to be described in the Prospectus as amended or
supplemented which has not been so filed, incorporated by reference or
described.
In rendering such opinion, such counsel may rely to the
extent such counsel deems appropriate upon certificates of officers or other
executives of the Company, Sears and its business groups and subsidiaries and
of public officials as to factual matters and upon opinions of other counsel.
Such counsel shall also state that: (a) nothing has come to such counsel's
attention which has caused such counsel to believe that any of the documents
referred to in subdivision (viii) above (other than the financial statements
and related schedules, the analyses of operations and financial condition and
other financial, statistical and accounting data therein, as to which such
counsel need express no belief), in each case after excluding any statement
in any such document which does not constitute part of the Registration
Statement or the Prospectus as amended or supplemented pursuant to Rule 412
of Regulation C under the Act and after substituting therefor any statement
modifying or superseding such excluded statement, when it became effective or
was filed, as the case may be, contained, in the case of documents which
became effective under the Act, an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, and, in the case of documents
which were filed under the Exchange Act with the Commission, an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (b) nothing has come to such
counsel's attention which has caused such counsel to believe that the
Registration Statement or the Prospectus as amended or supplemented (other
than the financial statements, the analyses of operations and financial
condition and other financial, statistical and accounting data therein, as to
which such counsel need express no belief) contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(d) At the Time of Delivery for such Designated
Securities, Deloitte & Touche LLP, certified auditors, shall have furnished
you a letter or letters, dated the date of delivery thereof in form and
substance satisfactory to you as to such matters as you may reasonably
request.
(e) (i) The Company shall not have sustained, since the
date of the latest audited financial statements included or incorporated by
reference in the Prospectus as amended or supplemented, any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree and (ii) since the respective dates as
of which information is given in the Prospectus as amended or supplemented
there shall not have been any material change in the capital stock accounts
or long-term debt of the Company or any material adverse change in the
general affairs, financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or contemplated in the
Prospectus as amended or supplemented, the effect of which in any such case
described in clause (i) or (ii), in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented.
(f) Subsequent to the date of the Pricing Agreement
relating to the Designated Securities, no downgrading shall have occurred in
the rating accorded to the Company's or Sears senior debt securities by
Moody's Investors Service, Inc. or Standard & Poor's; provided, however, that
this subdivision (f) shall not apply to any such rating agency which shall
have notified you of the rating of the Designated Securities prior to the
execution of the Pricing Agreement.
(g) Subsequent to the date of the Pricing Agreement
relating to the Designated Securities none of (i) the United States shall
have become engaged in the outbreak or escalation of hostilities involving
the United States or there has been a declaration by the United States of a
national emergency or a declaration of war, (ii) a banking moratorium shall
have been declared by either Federal or New York State authorities, or (iii)
trading in securities generally on the New York Stock Exchange shall have
been suspended nor limited or minimum prices shall have been established by
such Exchange, any of which events, in your judgment, renders it inadvisable
to proceed with the public offering or the delivery of the Designated
Securities.
(h) Each of the Company and Sears shall have furnished
or caused to be furnished to you at the Time of Delivery for the Designated
Securities certificates satisfactory to you as to the accuracy at and as of
such Time of Delivery of the representations, warranties and agreements of
the Company and Sears, respectively, herein and as to the performance by each
of the Company and Sears of all its obligations hereunder to be performed at
or prior to such Time of Delivery and the Company shall have also furnished
you similar certificates satisfactory to you as to the matters set forth in
subdivision (a) of this Section 8.
9. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, any prospectus relating to the
Securities or the Prospectus as amended or supplemented, or any amendment or
supplement thereto furnished by the Company or Sears, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or (in the case of the Registration Statement
or the Prospectus as amended or supplemented, or any amendment or supplement
thereto) necessary to make the statements therein not misleading or (in the
case of any Preliminary Prospectus) necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, the Prospectus or the
Prospectus as amended or supplemented or any such amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter of Designated Securities through you expressly for
use in the Prospectus as amended or supplemented relating to such Securities;
and provided, further, that the Company shall not be liable to any
Underwriter or any person controlling such Underwriter under the indemnity
agreement in this subdivision (a) with respect to the Preliminary Prospectus
or the Prospectus or the Prospectus as amended or supplemented, as the case
may be, to the extent that any such loss, claim, damage or liability of such
Underwriter or controlling person results solely from the fact that such
Underwriter sold Designated Securities to a person to whom there was not sent
or given, at or prior to the written confirmation of such sale, a copy of the
Prospectus (excluding documents incorporated by reference) or of the
Prospectus as then amended or supplemented (excluding documents incorporated
by reference) if the Company has previously furnished copies thereof to such
Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
(in the case of the Registration Statement or the Prospectus or the
Prospectus as amended or supplemented, or any amendment or supplement
thereto) necessary to make the statements therein not misleading or (in the
case of any Preliminary Prospectus) necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading
in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus or the Prospectus as amended or supplemented, or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through you
expressly for use therein; and will reimburse the Company for any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim.
(c) Within a reasonable period after receipt by an indemnified
party under subdivision (a) or (b) above of notice of the commencement of any
action with respect to which indemnification is sought under such subdivision
or contribution may be sought under subdivision (d) below, such indemnified
party shall notify the indemnifying party in writing of the commencement
thereof. In case any such action shall be brought against any indemnified
party, the indemnifying party shall be entitled to participate in, and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory
to such indemnified party, and after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subdivision (a) or (b) above in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated
Securities on the other from the offering of the Designated Securities to
which such loss, claim, damage or liability (or action in respect thereof)
relates and also the relative fault of the Company and Sears on the one hand
and the Underwriters of the Designated Securities on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and such Underwriters on the other shall be deemed to
be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by such Underwriters, in each
case as set forth on the cover page of the Prospectus as amended or
supplemented. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or Sears on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission of the Company or Sears on the one hand and the Underwriters,
directly or through you, on the other hand. With respect to any Underwriter,
such relative fault shall also be determined by reference to the extent (if
any) to which such losses, claims, damages or liabilities (or actions in
respect thereof) with respect to any Preliminary Prospectus result from the
fact that such Underwriter sold Designated Securities to a person to whom
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Prospectus (excluding documents incorporated by
reference) or of the Prospectus as then amended or supplemented (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such Underwriter. The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
subdivision (d) were determined by per capita allocation among the
indemnifying parties (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subdivision
(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subdivision (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the applicable Designated Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of the Underwriters of Designated Securities in this subdivision
(d) to contribute are several in proportion to their respective underwriting
obligations with respect to such securities and not joint.
(e) The obligations of the Company under this Section 9 shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 9 shall be in addition to any
liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of
the Company or Sears and to each person, if any, who controls the Company
within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation
to purchase the Designated Securities which it has agreed to purchase under
the Pricing Agreement relating to such Securities, you may in your discretion
arrange for yourselves or another party or other parties to purchase such
Designated Securities on the terms contained herein. If within thirty-six
hours after such default by any Underwriter you do not arrange for the
purchase of such Designated Securities, then the Company shall be entitled to
a further period of thirty-six hours within which to procure another party or
other parties to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, you notify the Company
that you have so arranged for the purchase of such Designated Securities, or
the Company notifies you that it has so arranged for the purchase of such
Designated Securities, you or the Company shall have the right to postpone
the Time of Delivery for such Designated Securities for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus as amended or
supplemented, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
you and the Company as provided in subdivision (a) above, the aggregate
principal amount of such Designated Securities which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of the Designated
Securities, then the Company shall have the right to require each non-
defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing
Agreement relating to such Designated Securities and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of Designated Securities which such Underwriter agreed to
purchase under such Pricing Agreement) of the Designated Securities of such
defaulting Underwriter or Underwriters for which such arrangements have not
been made; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Designated Securities of a defaulting Underwriter or Underwriters by
you and the Company as provided in subdivision (a) above, the aggregate
principal amount of Designated Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of the Designated Securities,
as referred to in subdivision (b) above, or if the Company shall not exercise
the right described in subdivision (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated
Securities shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 7(b) hereof
and the indemnity and contribution agreements in Section 9 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
11. The respective indemnities, agreements, representations,
warranties and other statements of the Company, Sears and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, the Company, Sears or any officer or director or controlling
person of the Company or Sears, and shall survive delivery of and payment for
the Securities.
Anything herein to the contrary notwithstanding, the indemnity
agreement of the Company in subdivisions (a) and (e) of Section 9 hereof, the
representations and warranties in subdivisions (b) and (c) of Section 2
hereof and any representation or warranty as to the accuracy of the
Registration Statement or the Prospectus as amended or supplemented contained
in any certificate furnished by the Company or Sears pursuant to subdivision
(h) of Section 8 hereof, insofar as they may constitute a basis for
indemnification for liabilities (other than payment by the Company of
expenses incurred or paid in the successful defense of any action, suit or
proceeding) arising under the Act, shall not extend to the extent of any
interest therein of an Underwriter or a controlling person of an Underwriter
if a director, officer or controlling person of the Company or Sears when the
Registration Statement becomes effective or a person who, with his consent,
is named in the Registration Statement as being about to become a director of
the Company or Sears, is a controlling person of such Underwriter, except in
each case to the extent that an interest of such character shall have been
determined by a court of appropriate jurisdiction as not against public
policy as expressed in the Act. Unless in the opinion of counsel for the
Company or Sears the matter has been settled by controlling precedent, the
Company or Sears will, if a claim for such indemnification is asserted,
submit to a court of appropriate jurisdiction the question whether such
interest is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
12. If any Pricing Agreement shall be terminated pursuant to
Section 10 hereof, the Company shall not then be under any liability to any
Underwriter with respect to the Designated Securities covered by such Pricing
Agreement except as provided in Section 7(b) and Section 9 hereof; but, if
for any other reason Designated Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing
by you, including fees and disbursements of counsel, reasonably incurred by
the Underwriters in making preparations for the purchase, sale and delivery
of such Designated Securities, but the Company shall then be under no further
liability to any Underwriter with respect to such Designated Securities
except as provided in Section 7(b) and Section 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each
of the Underwriters of Designated Securities, and the parties hereto shall be
entitled to act and rely upon any statement, request, notice or agreement on
behalf of any Underwriter made or given by you or by Morgan Stanley & Co.
Incorporated, representing you.
All statements, requests, notices and agreements hereunder shall be
in writing or by telegram if promptly confirmed in writing and if to the
Underwriters shall be sufficient in all respects, if delivered or sent by
registered mail to you as the Representatives at 1585 Broadway, New York, New
York 10036, Attention: Harold Hendershot; and if to the Company shall be
sufficient in all respects if delivered or sent by registered mail to the
Company at 3711 Kennett Pike, Greenville, Delaware 19807, Attention: Nancy
K. Bellis, Secretary; and if to Sears shall be sufficient in all respects if
delivered or sent by registered mail to Sears at 3333 Beverly Road, Hoffman
Estates, Illinois, Attention: Michael D. Levin, Senior Vice President,
General Counsel and Secretary.
14. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company,
Sears and, to the extent provided in Section 9 and Section 11 hereof, the
officers and directors of the Company and Sears and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or any such Pricing
Agreement. No purchaser of any of the Securities from any Underwriter shall
be deemed a successor or assign by reason merely of such purchase.
15. Time shall be of the essence of each Pricing Agreement.
16. This Agreement and each Pricing Agreement shall be governed
by, and construed in accordance with, the internal laws of the State of New
York.
17. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please
sign and return two counterparts hereof.
Very truly yours,
Sears Roebuck Acceptance
Corp.
By: /S/Keith E. Trost
Sears, Roebuck and Co.
By:/S/Alice M. Peterson
Accepted as of the date hereof:
MORGAN STANLEY & CO. INCORPORATED
By: Michael Fusco
Title:
MORGAN STANLEY & CO. INCORPORATED
As Representatives of the several
Underwriters named in Schedule I hereto
1585 Broadway
New York, New York 10036
,199
Dear Sirs:
Sears Roebuck Acceptance Corp., a Delaware corporation (the
"Company"), proposes subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated , 199 (the "Underwriting
Agreement"), executed between the Company and Sears, Roebuck and Co.
("Sears"), on the one hand, and
on the other hand, to issue
and sell to the Underwriters named in Schedule I hereto (the "Underwriters")
the Securities specified in Schedule II hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in full
herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and, except where otherwise specified,
as of the date of this Pricing Agreement, except that each representation and
warranty with respect to the Prospectus in Sections 2 and 3 of the
Underwriting Agreement shall be deemed to be a representation and warranty as
of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined) and also a representation and warranty as of the date of
this Pricing Agreement in relation to the Prospectus as amended or
supplemented. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at a purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite
the name of such Underwriter in Schedule I hereto, less the principal amount
of Designated Securities covered by Delayed Delivery Contracts, if any, as
may be specified in such Schedule II.
If the foregoing is in accordance with your understanding, please
sign and return to us two counterparts hereof, and upon acceptance hereof by
you on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between the
Company, Sears and each of the Underwriters. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant
to the authority set forth in a form of Agreement among Underwriters, the
form of which shall be supplied to the Company upon request. You represent
that you are authorized on behalf of yourselves and on behalf of each of the
other Underwriters named in Schedule I hereto to enter into this Agreement.
Very truly yours,
Sears Roebuck Acceptance Corp.
By:
Sears, Roebuck and Co.
By:
Accepted as of the date hereof:
MORGAN STANLEY & CO. INCORPORATED
By: _____________________________________
Title:
SCHEDULE I
Principal Amount
of Designated
Securities to be
Underwriter Purchased
Morgan Stanley & Co. Incorporated . . . . . . . .
___________________
$
Total . . . . . . . . . . . . . . . . . . . .
SCHEDULE II
Title of Designated Securities:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
Aggregate principal amount:
$
Price to Public:
% of the principal amount of
the Designated Securities, plus accrued
interest from to the Time of
Delivery [and accrued amortization,
if any, from to the Time
of Delivery]
Purchase Price by Underwriters:
% of the principal amount of the
Designated Securities, plus accrued
interest from to the Time of
Delivery [and accrued amortization,
if any, from to the Time
of Delivery]
Indenture:
Indenture, dated , between
the Company and , as Trustee
Form of Designated Securities:
[Certificated form only][Global form only]
Maturity:1
Interest Rate:*
[ %] [Zero Coupon]
Interest Payment dates:*
[months and dates]
Redemption Provisions:*
[No provision for redemption]
[The Designated Securities may be redeemed,
otherwise than through the sinking fund,
in whole or in part at the option of the
Company, in the amount of $ or an
integral multiple thereof,
[on or after , at the following redemption prices
(expressed in percentages of
principal amount). If [redeemed on or before , %, and
if] redeemed during the
12-month period beginning ,
Year
Redemption Price
and thereafter at 100% of their principal amount, together in each
case with accrued interest to the redemption date.]
[on any interest payment date falling on or after , ,
at the election of the Company, at a redemption price equal to the principal
amount thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption
upon occurrence of certain events or redemption for changes in tax law]
[Restriction of refunding]
Sinking Fund Provisions:1
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking
fund to retire $ principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [, together with (cumulative) (non-cumulative)
redemptions at the option of the Company to retire an additional $
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
Time of Delivery:
[ ] A.M., New York time, [ ] ,19
Funds in which payment by Underwriters to Company to be made:
[ ] Clearing House Funds
[ ] Same day funds
Method of Payment:
[Certified or official bank check or checks]
[Wire transfer to ]
Closing Location:
Delayed Delivery:
[None] [Underwriters are authorized to solicit Delayed Delivery
Contracts relating to a maximum of $ in aggregate principal amount
of the Designated Securities. Underwriters' commission shall be % of the
principal amount of Designated Securities for which Delayed Delivery
Contracts have been entered into. Such commission shall be payable to the
order of .]
[Certified or official bank check or checks]
[Wire transfer to ]
Counsel:
To the Company, [ ]
To Sears, [ ]
To the Underwriters, [ ]
[Other Terms]:1
ANNEX II
DELAYED DELIVERY CONTRACT
SEARS ROEBUCK ACCEPTANCE CORP.,
c/o
Attention:
,199
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Sears Roebuck
Acceptance Corp. (hereinafter called the "Company"), and the Company agrees
to sell to the undersigned,
$
principal amount of the Company's [Title of Designated Securities]
(hereinafter called the "Designated Securities"), offered by the Company's
Prospectus dated , 199 as amended or supplemented, receipt of a copy of
which is hereby acknowledged, at a purchase price of % of the principal
amount thereof, plus accrued interest from the date from which interest
accrues as set forth below, and on the further terms and conditions set forth
in this contract.
[The undersigned will purchase the Designated Securities from the
Company on , 199 (the "Delivery Date") and interest on the
Designated Securities so purchased will accrue from , 199 .]
[The undersigned will purchase the Designated Securities from the
Company on the delivery date or dates and in the principal amount or amounts
set forth below:
Each such date on which Designated Securities are to be purchased hereunder
is hereinafter referred to as a "Delivery Date".]
Payment for the Designated Securities which the undersigned has
agreed to purchase on [the] [each] Delivery Date shall be made to the Company
or its order by [certified or official bank check] [in New York Clearing
House funds at the office of Sears Roebuck Acceptance Corp., Greenville,
Delaware] [or] [by wire transfer, in immediately available funds, to a bank
account specified by the Company], on [the] [such] Delivery Date upon
delivery to the undersigned of the Designated Securities then to be purchased
by the undersigned in definitive fully registered form and in such
denominations and registered in such names as the undersigned may designate
by written or telegraphic communication addressed to the Company not less
than five full business days prior to [the] [such] Delivery Date.
The obligation of the undersigned to take delivery of and make
payment for Designated Securities on [the] [each] Delivery Date shall be
subject to the conditions that (a) the purchase of Designated Securities to
be made by the undersigned shall not on [the] [such] Delivery Date be
prohibited under the laws of the jurisdiction to which the undersigned is
subject and (b) the Company, on or before , 199 , shall have
sold to the several Underwriters, pursuant to the Pricing Agreement dated
, 199 with the Company and Sears, Roebuck and Co. ("Sears"), an
aggregate principal amount of Designated Securities equal to $ , minus
the aggregate principal amount of Designated Securities covered by this
contract and other contracts similar to this contract. The obligation of the
undersigned to take delivery of and make payment for Designated Securities
shall not be affected by the failure of any purchaser to take delivery of and
make payment for Designated Securities pursuant to other contracts similar to
this contract.
Promptly after completion of the sale to the Underwriters the Company
will mail or deliver to the undersigned at its address set forth below notice
to such effect, accompanied by a copy of the Opinion of Counsel for the
Company and Sears delivered to the Underwriters in connection therewith.
The undersigned represents and warrants that, as of the date of this
contract, the undersigned is not prohibited from purchasing the Designated
Securities hereby agreed to be purchased by it under the laws of the
jurisdiction to which the undersigned is subject.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without written consent of the other.
This contract may be executed by either of the parties hereto in any
number of counterparts, each of which shall be deemed to be an original, but
all such counterparts shall together constitute one and the same instrument.
This contract shall be governed by, and construed in accordance with,
the internal laws of the State of New York.
It is understood that the acceptance by the Company of any Delayed
Delivery Contract (including this contract) is in the Company's sole
discretion and that, without limiting the foregoing, acceptances of such
contracts need not be on a first-come, first-served basis. If this contract
is acceptable to the Company, it is requested that the Company sign the form
of acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such counterpart is so
mailed or delivered by the Company.
Yours very truly,
_______________________________
By ____________________________
(Signature)
_______________________________
(Name and Title)
_______________________________
(Address)
Accepted, ,199
in Greenville, Delaware
SEARS ROEBUCK ACCEPTANCE CORP.
By _______________________________
(Title)
Exhibit 4(a)
FORM OF NOTE
[FORM OF FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO
CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Number $.............
CUSIP NO.__________________
SEARS ROEBUCK ACCEPTANCE CORP.
6.70% Note due September 18, 2007
6.70% 6.70%
Due 2007 Due 2007
Sears Roebuck Acceptance Corp., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars upon presentation and surrender of this Note, on the eighteenth day
of September, 2007, at the office or agency of the Company in the Borough of
Manhattan of The City of New York or, at the option of the holder hereof,
such office or agency, if any, maintained by the Company 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, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts, and to pay interest on said
principal sum at the rate of 6.70% per annum, 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 or at either of such
offices or agencies, in like coin or currency, from the March 18 or September
18, as the case may be, next preceding the date hereof to which interest has
been paid on the Notes referred to on the reverse hereof (unless the date
hereof is the date to which interest has been paid on such Notes, in which
case from the date hereof, or unless the date hereof is prior to March 18,
1998, in which case from September 23, 1997), semiannually, commencing on
March 18, 1998, on March 18 and September 18, until payment of said principal
sum has been made or duly provided for. Notwithstanding the foregoing, if
this Note is dated after any March 1 and before the following March 18, or
after any September 1 and before the following September 18, then this Note
shall bear interest from such following March 18 or September 18, provided,
however, that if the Company shall default in the payment of interest due on
such following March 18 or September 18, this Note shall bear interest from
the next preceding March 18 or September 18 to which interest has been paid
on such Notes, or if no interest has been paid on such Notes, then from
September 23, 1997. The interest so payable on any March 18 or September 18
will, subject to certain exceptions provided in the Indenture referred to on
the reverse hereof, be paid to the person in whose name this Note is
registered at the close of business on the March 1 prior to such March 18 or
the September 1 prior to such September 18. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to
the registered holder on such Interest Payment Date, and may be paid to the
Person in whose name this Note is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice of which shall be given to Noteholders not less than 10
days prior to such Special Record Date, or may be paid, at any time in any
other lawful manner, all as more fully provided in such Indenture.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof or any indenture supplemental thereto, or
become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by or on behalf of the Trustee
under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ........................................
Sears Roebuck Acceptance Corp.
By ___________________________
President
By ______________________________
Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By:___________________________________
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
6.70% Note due September 18, 2007
1. This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an
indenture dated as of May 15, 1995, executed between the Company and THE
CHASE MANHATTAN BANK, as Trustee; to which indenture and all indentures
supplemental thereto (herein collectively called the "Indenture") reference
is hereby made for a specification of the rights and limitation of rights
thereunder of the Holders of the Securities, the rights and obligations
thereunder of the Company and the rights, duties and immunities thereunder of
the Trustee. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any), may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the "6.70%
Notes due September 18, 2007" of the Company, limited in aggregate principal
amount to $150,000,000 (hereinafter referred to as the "Notes"). All terms
used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
2. In case a default, as defined in the Indenture, shall occur and
be continuing with respect to the Notes, the principal amount of all Notes
then outstanding under the Indenture may be declared or may become due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture. The Indenture provides that such declaration may in certain
events be annulled by the Holders of a majority in principal amount of the
Notes outstanding.
3. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture)
of each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and
premium, if any, on), or the interest on, any Security, or reduce the
principal amount of (and 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 of the Indenture 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.
4. The Indenture also provides that the Holders of a majority in
principal amount of the Securities of any series then outstanding may waive
any past default under the Indenture and its consequences, except a default
in the payment of the principal of or interest or premium, if any, on any of
the Securities.
5. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, at the rate, and in the
Currency, herein prescribed.
6. This Note is transferable by the registered Holder hereof or by
his attorney duly authorized in writing at the office or agency of the
Company in the Borough of Manhattan of The City of New York or, at the option
of the Holder hereof, such office or agency, if any, maintained by the
Company 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, without charge except for any tax or other governmental
charge imposed in relation thereto, but only in the manner and subject to the
limitations provided in the Indenture and upon surrender of this Note. Upon
any such transfer a Note or Notes of authorized denominations for a like
aggregate principal amount and bearing a number not contemporaneously
outstanding will be issued in exchange herefor.
7. The Notes are issuable only as registered Notes without coupons,
in denominations of $1,000 and any multiple of $1,000. In the manner and
subject to the limitations provided in the Indenture, Notes are exchangeable,
without charge except for any tax or other governmental charge imposed in
relation thereto, for other Notes of authorized denominations for a like
aggregate principal amount, at the office or agency of the Company in the
Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, such office or agency, if any, maintained by the Company 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.
8. The Company, the Trustee, any Authenticating Agent, any paying
agent and any Security registrar may deem and treat the registered Holder
hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
by anyone other than the Company or any Security registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and neither the Company, the Trustee, an
Authenticating Agent, a paying agent nor Security registrar shall be affected
by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Note to the extent
of the sum or sums so paid.
9. No recourse shall be had for the payment of the principal of or
the interest on this Note or for any claim based hereon or otherwise in any
manner in respect hereof, or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, of
the Company or of any predecessor or successor corporation, whether by virtue
of any constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof. In the event of any sale or
transfer of its assets and liabilities substantially as an entirety to a
successor corporation, the predecessor corporation may be dissolved and
liquidated as more fully set forth in the Indenture.
Exhibit 4(b)
FORM OF NOTE
[FORM OF FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.,
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
Number $.............
CUSIP NO.__________________
SEARS ROEBUCK ACCEPTANCE CORP.
7.50% Note due October 15, 2027
7.50% 7.50%
Due 2027 Due 2027
Sears Roebuck Acceptance Corp., a corporation organized and existing
under the laws of the State of Delaware (hereinafter called the "Company"),
for value received, hereby promises to pay to
, or registered assigns, the principal sum of
Dollars upon presentation and surrender of this Note, on the fifteenth day
of October, 2027, at the office or agency of the Company in the Borough of
Manhattan of The City of New York or, at the option of the holder hereof,
such office or agency, if any, maintained by the Company 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, in such
coin or currency of the United States of America as at the time of payment is
legal tender for public and private debts, and to pay interest on said
principal sum at the rate of 7.50% per annum, 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 or at either of such
offices or agencies, in like coin or currency, from the April 15 or October
15, as the case may be, next preceding the date hereof to which interest has
been paid on the Notes referred to on the reverse hereof (unless the date
hereof is the date to which interest has been paid on such Notes, in which
case from the date hereof, or unless the date hereof is prior to April 15,
1998, in which case from September 30, 1997), semiannually, commencing on
April 15, 1998, on April 15 and October 15, until payment of said principal
sum has been made or duly provided for. Notwithstanding the foregoing, if
this Note is dated after any April 1 and before the following April 15, or
after any October 1 and before the following October 15, then this Note shall
bear interest from such following April 15 or October 15, provided, however,
that if the Company shall default in the payment of interest due on such
following April 15 or October 15, this Note shall bear interest from the next
preceding April 15 or October 15 to which interest has been paid on such
Notes, or if no interest has been paid on such Notes, then from September 30,
1997. The interest so payable on any April 15 or October 15 will, subject to
certain exceptions provided in the Indenture referred to on the reverse
hereof, be paid to the person in whose name this Note is registered at the
close of business on the April 1 prior to such April 15 or the October 1
prior to such October 15. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered holder on
such Interest Payment Date, and may be paid to the Person in whose name this
Note is registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest to be fixed by the Trustee, notice of
which shall be given to Noteholders not less than 10 days prior to such
Special Record Date, or may be paid, at any time in any other lawful manner,
all as more fully provided in such Indenture.
The Notes will not be redeemable prior to October 15, 2007.
Thereafter, the Notes will be subject to redemption at any time at the option
of the Company as a whole or from time to time in part upon not less than 30
nor more than 60 days' notice at the redemption prices (expressed as a
percentage of principal amount) set forth below plus accrued and unpaid
interest thereon to the applicable redemption date. If the Notes are
redeemed during the twelve month period beginning on October 15 of the years
indicated below, the Redemption Prices will be:
Year Redemption Price
2007 103.676%
2008 103.308%
2009 102.941%
2010 102.573%
2011 102.206%
2012 101.838%
2013 101.470%
2014 101.103%
2015 100.735%
2016 100.368%
2017 and thereafter 100.000%
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture
referred to on the reverse hereof or any indenture supplemental thereto, or
become valid or obligatory for any purpose, until the certificate of
authentication hereon shall have been signed by or on behalf of the Trustee
under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ........................................
Sears Roebuck Acceptance Corp.
By ________________________
President
By ________________________
Vice President and
Assistant Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to
in the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By:___________________________________
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
7.50% Note due October 15, 2027
1. This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called
the "Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an
indenture dated as of May 15, 1995, executed between the Company and THE
CHASE MANHATTAN BANK, as Trustee; to which indenture and all indentures
supplemental thereto (herein collectively called the "Indenture") reference
is hereby made for a specification of the rights and limitation of rights
thereunder of the Holders of the Securities, the rights and obligations
thereunder of the Company and the rights, duties and immunities thereunder of
the Trustee. The Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may
be subject to different redemption provisions (if any), may be subject to
different sinking, purchase or analogous funds (if any), may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the "7.50%
Notes due October 15, 2027" of the Company, limited in aggregate principal
amount to $250,000,000 (hereinafter referred to as the "Notes"). All terms
used in this Note which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
2. In case a default, as defined in the Indenture, shall occur and
be continuing with respect to the Notes, the principal amount of all Notes
then outstanding under the Indenture may be declared or may become due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture. The Indenture provides that such declaration may in certain
events be annulled by the Holders of a majority in principal amount of the
Notes outstanding.
3. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture)
of each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and
premium, if any, on), or the interest on, any Security, or reduce the
principal amount of (and 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 of the Indenture 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.
4. The Indenture also provides that the Holders of a majority in
principal amount of the Securities of any series then outstanding may waive
any past default under the Indenture and its consequences, except a default
in the payment of the principal of or interest or premium, if any, on any of
the Securities.
5. No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the place, at the respective times, at the rate, and in the
Currency, herein prescribed.
6. This Note is transferable by the registered Holder hereof or by
his attorney duly authorized in writing at the office or agency of the
Company in the Borough of Manhattan of The City of New York or, at the option
of the Holder hereof, such office or agency, if any, maintained by the
Company 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, without charge except for any tax or other governmental
charge imposed in relation thereto, but only in the manner and subject to the
limitations provided in the Indenture and upon surrender of this Note. Upon
any such transfer a Note or Notes of authorized denominations for a like
aggregate principal amount and bearing a number not contemporaneously
outstanding will be issued in exchange herefor.
7. The Notes are issuable only as registered Notes without coupons,
in denominations of $1,000 and any multiple of $1,000. In the manner and
subject to the limitations provided in the Indenture, Notes are exchangeable,
without charge except for any tax or other governmental charge imposed in
relation thereto, for other Notes of authorized denominations for a like
aggregate principal amount, at the office or agency of the Company in the
Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, such office or agency, if any, maintained by the Company 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.
8. The Company, the Trustee, any Authenticating Agent, any paying
agent and any Security registrar may deem and treat the registered Holder
hereof as the absolute owner hereof (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
by anyone other than the Company or any Security registrar) for the purpose
of receiving payment of or on account of the principal hereof and interest
hereon and for all other purposes, and neither the Company, the Trustee, an
Authenticating Agent, a paying agent nor Security registrar shall be affected
by any notice to the contrary. All such payments shall be valid and
effectual to satisfy and discharge the liability upon this Note to the extent
of the sum or sums so paid.
9. No recourse shall be had for the payment of the principal of or
the interest on this Note or for any claim based hereon or otherwise in any
manner in respect hereof, or in respect of the Indenture, against any
incorporator, shareholder, officer or director, past, present or future, of
the Company or of any predecessor or successor corporation, whether by virtue
of any constitutional provision or statute or rule of law, or by the
enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the acceptance hereof and as
part of the consideration for the issue hereof. In the event of any sale or
transfer of its assets and liabilities substantially as an entirety to a
successor corporation, the predecessor corporation may be dissolved and
liquidated as more fully set forth in the Indenture.
Exhibit 4(c)
FORM OF NOTE
[FORM OF FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC") TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
Number $.............
CUSIP NO._____________
SEARS ROEBUCK ACCEPTANCE CORP.
6.875% Note due October 15, 2017
6.875% 6.875%
Due 2017 Due 2017
Sears Roebuck Acceptance Corp., a corporation organized and existing under
the laws of the State of Delaware (hereinafter called the "Company"), for value
received, hereby promises to pay to , or
registered assigns, the principal sum of Dollars upon
presentation and surrender of this Note, on the fifteenth day of October, 2017,
at the office or agency of the Company in the Borough of Manhattan of The City
of New York or, at the option of the holder hereof, such office or agency, if
any, maintained by the Company 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, in such coin or currency of the United
States of America as at the time of payment is legal tender for public and
private debts, and to pay interest on said principal sum at the rate of 6.875%
per annum, 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 or at either of such offices or agencies, in like coin or currency,
from the April 15 or October 15, as the case may be, next preceding the date
hereof to which interest has been paid on the Notes referred to on the reverse
hereof (unless the date hereof is the date to which interest has been paid on
such Notes, in which case from the date hereof, or unless the date hereof is
prior to April 15, 1998, in which case from October 8, 1997), semiannually,
commencing on April 15, 1998, on April 15 and October 15, until payment of said
principal sum has been made or duly provided for. Notwithstanding the
foregoing, if this Note is dated after any April 1 and before the following
April 15, or after any October 1 and before the following October 15, then this
Note shall bear interest from such following April 15 or October 15, provided,
however, that if the Company shall default in the payment of interest due on
such following April 15 or October 15, this Note shall bear interest from the
next preceding April 15 or October 15 to which interest has been paid on such
Notes, or if no interest has been paid on such Notes, then from October 8, 1997.
The interest so payable on any April 15 or October 15 will, subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, be paid
to the person in whose name this Note is registered at the close of business on
the April 1 prior to such April 15 or the October 1 prior to such October 15.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the registered holder on such Interest Payment Date, and
may be paid to the Person in whose name this Note is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice of which shall be given to Noteholders not less
than 10 days prior to such Special Record Date, or may be paid, at any time in
any other lawful manner, all as more fully provided in such Indenture.
If any Interest Payment Date of the Maturity Date falls on a day that is not
a Business Day, the interest or principal pament shall be made on the next day
that is a Business Day, and no interest on such payment shall accrue for the
period from and after the Interest Payment Date or the Maturity Date. Interest
on the Notes will be computed on the basis of a 360-day year of twelve 30-day
months.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, and such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
This Note shall not be entitled to any benefit under the Indenture referred
to on the reverse hereof or any indenture supplemental thereto, or become valid
or obligatory for any purpose, until the certificate of authentication hereon
shall have been signed by or on behalf of the Trustee under such Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ........................................
Sears Roebuck Acceptance Corp.
By ___________________________________
President
By ____________________________________
Secretary
[Corporate Seal]
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities of the series designated and referred to in
the within-mentioned Indenture.
The Chase Manhattan Bank
as Trustee
By:___________________________________
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
6.875% Note due October 15, 2017
1. This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, unlimited in aggregate
principal amount, all issued or to be issued under or pursuant to an indenture
dated as of May 15, 1995, executed between the Company and THE CHASE MANHATTAN
BANK, as Trustee; to which indenture and all indentures supplemental thereto
(herein collectively called the "Indenture") reference is hereby made for a
specification of the rights and limitation of rights thereunder of the Holders
of the Securities, the rights and obligations thereunder of the Company and the
rights, duties and immunities thereunder of the Trustee. The Securities may be
issued in one or more series, which different series may be issued in various
aggregate principal amounts, may mature at different times, may bear interest
(if any) at different rates, may be subject to different redemption provisions
(if any), may be subject to different sinking, purchase or analogous funds (if
any), may be subject to different covenants and Events of Default and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as the "6.875% Notes due October 15, 2017" of the Company, limited in
aggregate principal amount to $300,000,000 (hereinafter referred to as the
"Notes"). All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
2. The Notes will be redeemable, in whole or in part, at the option of the
Company at any time upon not less than 30 nor more than 60 days' notice, at a
redemption price equal to the greater of (i) 100% of the principal amount of
such Notes or (ii) as determined by an Independent Investment Banker (as defined
herein), the sum of the present values of the remaining scheduled payments of
principal and interest thereon (not including any portion of such payments of
interest accrued as of the date of redemption) discounted to the redemption date
on a semiannual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Adjusted Treasury Rate, plus, in each case, accrued interest
thereon to the date of redemption. Unless the Company defaults in payment of
the redemption price, on and after the redemption date, interest will cease to
accrue on the Notes or portions thereof called for redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semiannual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date, plus 0.20%.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption date (A)
the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest of such Reference Treasury Dealer
Quotations (if any), or (B) if the Trustee obtains fewer than three such
Reference Treasury Quotations, the average of all such Quotations.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities Inc., Morgan
Stanley & Co. Incorporated, Salomon Brothers Inc and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (A "Primary Treasury
Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 5:00 p.m. (New York City time) on
the third Business Day preceding such redemption date.
3. In case a default, as defined in the Indenture, shall occur and be
continuing with respect to the Notes, the principal amount of all Notes then
outstanding under the Indenture may be declared or may become due and payable
upon the conditions and in the manner and with the effect provided in the
Indenture. The Indenture provides that such declaration may in certain events
be annulled by the Holders of a majority in principal amount of the Notes
outstanding.
4. To the extent permitted by, and as provided in, the Indenture,
indentures supplemental thereto may be entered into with the consent of the
Company and with the consent of the Holders of not less than a majority in
principal amount of the outstanding Securities (as defined in the Indenture) of
each series to be affected; provided, however, that no such supplemental
indenture shall (i) change the Stated Maturity of the principal of (and premium,
if any, on), or the interest on, any Security, or reduce the principal amount of
(and 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 of the Indenture
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.
5. The Indenture also provides that the Holders of a majority in
principal amount of the Securities of any series then outstanding may waive any
past default under the Indenture and its consequences, except a default in the
payment of the principal of or interest or premium, if any, on any of the
Securities.
6. No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this Note
at the place, at the respective times, at the rate, and in the Currency, herein
prescribed.
7. This Note is transferable by the registered Holder hereof or by his
attorney duly authorized in writing at the office or agency of the Company in
the Borough of Manhattan of The City of New York or, at the option of the Holder
hereof, such office or agency, if any, maintained by the Company 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, without
charge except for any tax or other governmental charge imposed in relation
thereto, but only in the manner and subject to the limitations provided in the
Indenture and upon surrender of this Note. Upon any such transfer a Note or
Notes of authorized denominations for a like aggregate principal amount and
bearing a number not contemporaneously outstanding will be issued in exchange
herefor.
8. The Notes are issuable only as registered Notes without coupons, in
denominations of $1,000 and any multiple of $1,000. In the manner and subject
to the limitations provided in the Indenture, Notes are exchangeable, without
charge except for any tax or other governmental charge imposed in relation
thereto, for other Notes of authorized denominations for a like aggregate
principal amount, at the office or agency of the Company in the Borough of
Manhattan of The City of New York or, at the option of the Holder hereof, such
office or agency, if any, maintained by the Company 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.
9. The Company, the Trustee, any Authenticating Agent, any paying agent
and any Security registrar may deem and treat the registered Holder hereof as
the absolute owner hereof (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon by anyone
other than the Company or any Security registrar) for the purpose of receiving
payment of or on account of the principal hereof and interest hereon and for all
other purposes, and neither the Company, the Trustee, an Authenticating Agent,
a paying agent nor Security registrar shall be affected by any notice to the
contrary. All such payments shall be valid and effectual to satisfy and
discharge the liability upon this Note to the extent of the sum or sums so paid.
10. No recourse shall be had for the payment of the principal of or the
interest on this Note or for any claim based hereon or otherwise in any manner
in respect hereof, or in respect of the Indenture, against any incorporator,
shareholder, officer or director, past, present or future, of the Company or of
any predecessor or successor corporation, whether by virtue of any
constitutional provision or statute or rule of law, or by the enforcement of
any assessment or penalty or in any other manner, all such liability being
expressly waived and released by the acceptance hereof and as part of the
consideration for the issue hereof. In the event of any sale or transfer of
its assets and liabilities substantially as an entirety to a successor
corporation, the predecessor corporation may be dissolved and liquidated as
more fully set forth in the Indenture.
Exhibit 5
October 14, 1997
Sears Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, Delaware 19807
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Ladies and Gentlemen:
I am an Assistant General Counsel of Sears, Roebuck and Co.
("Sears"). I have examined (i) Registration Statement No. 333-30879 as
filed with the Securities and Exchange Commission on July 8, 1997 thereto
(the "Registration Statement") in connection with the registration under
the Securities Act of 1933, as amended (the "Act") of $4,500,000,000
aggregate initial offering price of debt securities of Sears Roebuck
Acceptance Corp. (the "Company"), for several offerings to be made on a
continuous or delayed basis pursuant to the provisions of Rule 415 under
the Act; (ii) the final prospectuses, dated September 18, 1997 and October 3,
1997, relating to the offering and sale of $4,500,000,000 of the aforesaid
debt securities, which are part of the Registration Statement (collectively,
the "Prospectus"), and the Prospectus Supplements, dated September 18,
September 23, 1997 and October 3, 1997, (collectively, the "Prospectus
Supplement") relating to the offering and sale of (a) $150,000,000 aggregate
principal amount of 6.70% Notes due September 18, 2007 (the "6.70% Notes"),
(b) $250,000,000 aggregate principal amount of 7.50% Notes due October 15,
2027 (the "7.50% Notes") and (c) $300,000,000 aggregate principal amount
6.875% Notes due October 15, 2017 (the "6.875% Notes") of the Company; (iii)
the Indenture dated as of May 15, 1995 between the Company and Chase
Manhattan Bank, as Trustee, relating to the aforesaid debt securities; (iv)
(a) the Underwriting Agreement dated September 18, 1997 among the Company,
Sears and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as
Representatives of the several Underwriters, (b) the Underwriting Agreement
dated September 23, 1997 among the Company, Sears and Morgan Stanley & Co.
Incorporated, as Representatives of the several Underwriters, (c) the Pricing
Agreement dated September 18, 1997 among the Company, Sears and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as Representatives of the several
Underwriters identified in Schedule I thereto, relating to the sale of the
6.70% Notes, (d) the Pricing Agreement dated September 23, 1997 among the
Company, Sears and Morgan Stanley & Co. Incorporated, as Representatives of
the several Underwriters identified in Schedule I thereto, relating to the
sale of the 7.50% Notes, (e) the Underwriting Agreement dated June 25, 1997
among the Company, Sears and Goldman, Sachs & Co., as Representatives of the
several Underwriters, and (f) the Pricing Agreement dated October 3, 1997
among the Company, Sears and Goldman, Sachs & Co., as Representatives of the
several Underwriters identified in Schedule I thereto, relating to the sale
of the 6.875% Notes; and (v) the form of (a) the 6.70% Notes, (b) the 7.50%
Notes and (c) the 6.875% Notes. I am familiar with the proceedings
heretofore taken by the Company in connection with the authorization,
registration, issuance and sale of the Notes.
I am of the opinion that each of the 6.70% Notes, the 7.50% Notes and
the 6.875% Notes are legally issued and binding obligations of the Company in
accordance with their terms, subject to insolvency, bankruptcy,
reorganization, moratorium, liquidation, fraudulent conveyance and transfer
or other similar laws relating to or affecting the enforcement of creditors'
rights generally or by general equity principles, including, without
limitation, concepts of materiality, reasonableness, good faith and fair
dealing (regardless of whether such enforceability is considered in a
proceeding in equity or at law). In giving the above opinion, I have relied,
with their permission, on opinions from Morris, Nichols, Arsht & Tunnell
addressed to me and dated September 23, September 30 and October 8, 1997.
I consent to the incorporation by reference of this opinion into the
Registration Statement, and to the references to me in the Prospectus and
Prospectus Supplement.
Very truly yours,
/S/Nancy K. Bellis
Nancy K. Bellis
