UNDERWRITING AGREEMENT
EXHIBIT 1(a)
UNDERWRITING AGREEMENT
Morgan Stanley & Co.
Incorporated
1585 Broadway, 2nd Floor
New York, NY 10036
As Representative of and
on behalf of
the several Underwriters
September 5,
2001
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 to, relating to
or affecting the enforcement of creditors' rights generally or by general
equity principles, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and will
be entitled to the benefits of the Indenture; and
(b) The issue and sale of
the Securities pursuant to any Pricing Agreement and the compliance by
the Company with all of the provisions of the Securities, the Indenture
and this Agreement will not conflict with or result in any breach which
would constitute a material default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the property
or assets of the Company material to the Company pursuant to the terms
of any indenture, loan agreement or other agreement or instrument for borrowed
money to which the Company is a party or by which the Company may be bound
or to which any of the property or assets of the Company, material to the
Company, is subject, nor will such action result in any material violation
of the provisions of the Certificate of Incorporation, as amended or the
By-Laws of the Company or, to the best of its knowledge, any statute or
any order, rule or regulation applicable to the Company of any court or
any federal, state or other regulatory authority or other governmental
body having jurisdiction over the Company, and no consent, approval, authorization
or other order of, or filing with, any court or any such regulatory authority
or other governmental body is required for the issue and sale of the Designated
Securities except as may be required under the Act, the Exchange Act, the
Trust Indenture Act and securities laws of the various states and other
jurisdictions in which the Underwriters will offer and sell the Designated
Securities.
4. Upon the execution of the
Pricing Agreement applicable to any Designated Securities and authorization
by you of the release of the Designated Securities, the several Underwriters
propose to offer the Designated Securities for sale upon the terms and
conditions set forth in the Prospectus as amended or supplemented.
The Pricing Agreement applicable
to any Designated Securities may provide that the Company and any entity
acting as an underwriter with respect to such Designated Securities may
enter into a deferred pricing agreement in the form set forth in a schedule
attached to such Pricing Agreement.
Each Underwriter represents
and agrees that it will not, at any time that such Underwriter is acting
as an "underwriter" (as defined in Section 2(11) of the Act) with respect
to any Designated Securities, transfer, deposit or otherwise convey any
such Designated Securities, into a trust or other type of special purpose
vehicle that issues securities or other instruments backed in whole or
in part by, or that represents interests in, such Designated Securities
without the prior written consent of the Company.
5. Designated Securities
to be purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive certificates registered in the name of Cede &
Co., as nominee for the Depository Trust Company, New York, New York ("DTC")
(unless otherwise specified in the Pricing Agreement) shall be delivered
by or on behalf of the Company to you for the account of such Underwriter,
against payment by such Underwriter or on its behalf of the purchase price
therefor, by certified or official bank check or checks or wire transfer,
as specified in such Pricing Agreement, payable to the order of the Company
in the funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such other place
and time and date as you and the Company may agree upon in writing, such
time and date being herein called the "Time of Delivery" for such Securities.
6. Each of the Company and
Sears agrees with each of the Underwriters of Designated Securities:
(a) To make no further
amendment or any supplement to the Registration Statement or the Prospectus
as amended or supplemented after the date of the Pricing Agreement relating
to such Securities and prior to the Time of Delivery for such Securities
without first having furnished you with a copy of the proposed form thereof
and given you a reasonable opportunity to review the same; to advise you
promptly of any such amendment or supplement after such Time of Delivery
and furnish you with copies thereof and to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Company or Sears, respectively, with the Commission pursuant to Section
13 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) The Company is not
an "investment company" within the meaning of the Investment Company Act
of 1940, as amended;
(iv) This Agreement and the
Pricing Agreement with respect to the Designated Securities have been duly
authorized, executed and delivered on the part of the Company and Sears;
(v) The issue and sale of
the Designated Securities and the compliance by the Company with all of
the provisions of the Designated Securities, the Indenture, this Agreement
and the Pricing Agreement with respect to the Designated Securities will
not (a) conflict with or result in any breach which would constitute a
material default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the property or assets of the Company
material to the Company, pursuant to the terms of any indenture, loan agreement
or other agreement or instrument for borrowed money known to such counsel
to which the Company is a party or by which the Company may be bound or
to which any of the property or assets of the Company material to the Company
is subject, (b) result in any violation of the provisions of the Certificate
of Incorporation, as amended or the By-Laws of the Company or (c) to the
best of the knowledge of such counsel, result in any material violation
of any statute or any order, rule or regulation applicable to the Company
of any court or any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company, other than the
securities laws of the various states or other jurisdictions which are
applicable to the issue and sale of the Designated Securities, as to which
such counsel need express no opinion; and, to the best knowledge of such
counsel, no consent, approval, authorization or other order of, or filing
with, any court or any such regulatory authority or other governmental
body is required for the issue and sale of the Designated Securities except
as has been obtained or effected under the Act, the Exchange Act, the Trust
Indenture Act and securities laws of the various states or other jurisdictions
which are applicable to the issue and sale of the Designated Securities;
(vi) The Fixed Charge Coverage
and Ownership Agreement and the Extension Agreement have been duly authorized,
executed and delivered by the parties thereto and are valid and binding
instruments of the parties thereto 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 (ix) above
(other than the financial statements and related schedules, the analyses
of operations and financial condition and other financial, statistical
and accounting data therein, as to which such counsel need express no belief),
in each case after excluding any statement in any such document which does
not constitute part of the Registration Statement or the Prospectus as
amended or supplemented pursuant to Rule 412 of Regulation C under the
Act and after substituting therefor any statement modifying or superseding
such excluded statement, when it became effective or was filed, as the
case may be, contained, in the case of documents which became effective
under the Act, an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of documents which
were filed under the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (b) nothing has come to such
counsel's attention which has caused such counsel to believe that the Registration
Statement or the Prospectus as amended or supplemented (other than the
financial statements, the analyses of operations and financial condition
and other financial, statistical and accounting data therein, as to which
such counsel need express no belief) contains an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading.
(d) At the Time of Delivery
for such Designated Securities, Deloitte & Touche LLP, certified auditors,
shall have furnished you a letter or letters, dated the date of delivery
thereof in form and substance satisfactory to you as to such matters as
you may reasonably request.
(e) (i) The Company shall
not have sustained, since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus as amended or supplemented,
any material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
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.
(i) Counsel to the Underwriters
shall have furnished you with such counsel's written opinion, dated the
Time of Delivery for such Designated Securities, in form and substance
satisfactory to you in your reasonable judgment, to the effect that:
(i) The Company is validly
existing as a corporation in good standing under the laws of the State
of Delaware.
(ii) Sears is validly existing
as a corporation in good standing under the laws of the State of New York.
(iii) The execution and delivery
of the Indenture have been duly authorized by all necessary corporate action
of the Company, and the Indenture has been duly executed and delivered
by the Company, and qualified under the Trust Indenture Act of 1939, as
amended, and is a valid, binding and enforceable agreement of the Company.
(iv) The execution and delivery
of the Designated Securities have been duly authorized by all necessary
corporate action of the Company, and the Designated Securities have been
duly executed and delivered by the Company and are the valid, binding and
enforceable obligations of the Company, entitled to the benefits of the
Indenture.
(v) The execution and delivery
of this Underwriting Agreement have been duly authorized by all necessary
corporate action of the Company and Sears, and this Underwriting Agreement
has been duly executed and delivered by the Company and Sears.
(vi) The execution and delivery
of the Pricing Agreement with respect to the Designated Securities have
been duly authorized by all necessary corporate action of the Company and
Sears, and the Pricing Agreement has been duly executed and delivered by
the Company and Sears.
Such counsel shall also state
that: (a) no information has come to such counsel's attention that causes
such counsel to believe that the Registration Statement, as amended or
supplemented, including the documents incorporated by reference therein
(except the financial statements and schedules and other financial, statistical
and accounting data included therein, as to which such counsel need express
no view), at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(b) no information has come to such counsel's attention that causes such
counsel to believe that the Prospectus, as amended or supplemented, including
the documents incorporated by reference therein (except the financial statements
and schedules and other financial, statistical and accounting data included
therein, as to which such counsel need express no view) contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
9.
(a) The Company will indemnify and hold harmless each Underwriter against
anylosses, 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.
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
Representative at Morgan Stanley & Co. Incorporated, 1585 Broadway,
2nd Floor, New York, NY 10036, Attention: Financing Services Group; 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: David P. Scharf, Assistant 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 60179, Attention:
Anastasia D. Kelly, Executive Vice President, General Counsel.
14. This Agreement and each
Pricing Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company, Sears and, to the extent provided in
Section 9 and Section 11 hereof, the officers and directors of the Company
and Sears and each person who controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue
of this Agreement or any such Pricing Agreement. No purchaser of any of
the Securities from any Underwriter shall be deemed a successor or assign
by reason merely of such purchase.
15. Time shall be of the
essence of each Pricing Agreement.
16. This Agreement and each
Pricing Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of New York.
17. This Agreement and each
Pricing Agreement may be executed by any one or more of the parties hereto
and thereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together
constitute one and the same instrument.
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:
Morgan Stanley & Co.
Incorporated
By: /s/ Harold J. Hendershot
III
Name: Harold J. Hendershot
III
Title: Executive Director
ANNEX I
PRICING AGREEMENT
[Underwriters]
As Representatives of and
on behalf of
the several Underwriters
named in Schedule I hereto
__________,
200_
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 5, 2001 (the "Underwriting Agreement"), executed between the
Company and Sears, Roebuck and Co. ("Sears"), on the one hand, and Morgan
Stanley & Co. Incorporated as representative of and on behalf of the
several Underwriters named in Schedule I hereto, on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters")
the Securities specified in Schedule II hereto (the "Designated Securities").
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this
Agreement to the same extent as if such provisions had been set forth in
full herein; and each of the representations and warranties set forth therein
shall be deemed to have been made at and, except where otherwise specified,
as of the date of this Pricing Agreement, 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:
________________________________
[underwriter]
_________________________________
[underwriter]
As Representatives of and
on behalf of
the several Underwriters
named in Schedule I hereto
|
SCHEDULE I
|
| Underwriter |
Principal amount
of Designated
Securities to be purchased
|
| |
$ |
| |
|
| |
|
| |
________________________ |
TOTAL |
$
________________________ |
SCHEDULE II
Title of Designated Securities:
___% Notes due ______________
Aggregate principal amount:
$___________
Denominations:
US$1,000 (see "Other Terms")
Price to Public:
______% of the principal
amount of
the Designated Securities,
plus accrued
interest from ______________
to the Time of
Delivery
Purchase Price by Underwriters:
______% of the principal
amount of the
Designated Securities, plus
accrued
interest from ______________
to the Time of
Delivery
Indenture:
Indenture, dated as of
May 15, 1995,
between the Company and
The Chase Manhattan
Bank, N.A., as Trustee
Form of Designated Securities:
[Global form only]
Maturity:
______________
Interest Rate:
____%
Interest Payment dates:
_________ and __________
Redemption Provisions:
Incorporated by reference
to the attached Form of Note
Sinking Fund Provisions:
None
Time of Delivery:
_______ A.M., Chicago time,
______________
Funds in which payment by Underwriters
to Company to be made:
Immediately available funds
Method of Payment:
Wire transfer to The Chase
Manhattan Bank, ABA No. [021-000-021], for the Account of
Sears Roebuck Acceptance
Corp., Account No. [910-2587590]
Closing Location:
Hoffman Estates, Illinois
Delayed Delivery:
None
Counsel:
To the Company and
Sears:
-
Anastasia D. Kelly, Executive
Vice President, General Counsel and Secretary, Sears, Roebuck and Co.
-
Mayer, Brown & Platt,
special counsel to the Company and Sears
To the Underwriters:
-
Cleary, Gottlieb, Steen &
Hamilton
ANNEX II
DELAYED DELIVERY CONTRACT
SEARS ROEBUCK ACCEPTANCE CORP.,
c/o
Attention:
[Date]
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 _______, ____ as amended or supplemented, receipt of a copy of which
is hereby acknowledged, at a purchase price of % of the principal amount
thereof, plus accrued interest from the date from which interest accrues
as set forth below, and on the further terms and conditions set forth in
this contract.
[The undersigned will purchase
the Designated Securities from the Company on _______, ____ (the "Delivery
Date") and interest on the Designated Securities so purchased will accrue
from __________, ____.]
[The undersigned will purchase
the Designated Securities from the Company on the delivery date or dates
and in the principal amount or amounts set forth below:
Each such date on which Designated
Securities are to be purchased hereunder is hereinafter referred to as
a "Delivery Date".]
Payment for the Designated
Securities which the undersigned has agreed to purchase on [the] [each]
Delivery Date shall be made to the Company or its order by [certified or
official bank check] [in New York Clearing House funds at the office of
Sears 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 __________,
____, shall have sold to the several Underwriters, pursuant to the Pricing
Agreement dated ___________, ____ 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, [Date]
in Greenville, Delaware
SEARS ROEBUCK ACCEPTANCE
CORP.
By
(Title)
