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SECURITIES AND EXCHANGE COMMISSION FORM 8-K CURRENT REPORT Date of Report (Date of earliest event reported): May 21, 2002 SEARS ROEBUCK ACCEPTANCE CORP. Delaware 1-4040 51-0080535 3711 Kennett Pike, 19807 Registrant's telephone number, including area code: (302) 434-3112 (Former Name or Former Address, if Changed Since Last Report): Not Applicable 1 Other Events. On May 21, 2002, Registrant executed (i) an Underwriting Agreement with Sears, Roebuck and Co., Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and Lehman Brothers Inc., as Representatives of the several Underwriters, relating to debt securities and (ii) a Pricing Agreement with Sears, Roebuck and Co., Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and Lehman Brothers Inc., as Representatives of the several Underwriters named in Schedule I thereto, relating to $1,000,000,000 aggregate principal amount of 7.00% Notes due June 1, 2032. A copy of the Underwriting Agreement is attached as Exhibit 1(a) and a copy of the Pricing Agreement is attached as Exhibit 1(b). In connection with the issuance of the Notes: (i) Anastasia D. Kelly, Senior Vice President, General Counsel of Sears, Roebuck and Co. has delivered an opinion to Registrant, dated May 29, 2002, regarding the validity of the Notes, upon issuance and sale thereof on Item 7. Financial Statements and Exhibits The Exhibit Index is incorporated herein by reference. SIGNATURES SEARS ROEBUCK ACCEPTANCE CORP. By: /s/ Keith E. Trost Date: May 30, 2002 Exhibits Underwriting Agreement, dated May 21, 2002, among Registrant, Sears, Roebuck and Co., Morgan Stanley & Co. 1(b) Pricing Agreement, dated May 21, 2002, among Registrant, Sears, Roebuck and Co., Morgan Stanley & Co. 4 Form of 7.00% Note. 5 Opinion of Anastasia D. Kelly dated May 29, 2002, relating to the validity of $1,000,000,000 aggregate principal 8 Opinion of Mayer, Brown, Rowe & Maw as to certain federal tax matters concerning the Registrants 7.00% Notes 23(a) Consent of Anastasia D. Kelly (included in Exhibit 5). 23(b Consent of Mayer, Brown, Rowe & Maw (included in Exhibit 8). Exhibit 1(a) UNDERWRITING AGREEMENT Morgan Stanley & Co. Incorporated
c/o Morgan Stanley & Co. Incorporated May 21, 2002 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
Designated 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 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
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. 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, c/o 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: Kristin L. Kruska,
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, Senior 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
By: Morgan Stanley & Co. Incorporated
By: /s/ Harold J. Hendershot III ANNEX I [Underwriters] __________, 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 May 21, 2002 (the
"Underwriting Agreement"), executed between the Company and Sears,
Roebuck and Co. ("Sears"), on the one hand, and Morgan Stanley &
Co. Incorporated, Bear, Stearns & Co. Inc. and Lehman Brothers Inc. as
representatives of and on behalf of the several Underwriters named in Schedule I
hereto, on the other hand, to issue and sell to the Underwriters named in
Schedule I hereto (the "Underwriters") the Securities specified in
Schedule II hereto (the "Designated Securities"). Each of the
provisions of the Underwriting Agreement is incorporated herein by reference in
its entirety, and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and, except where otherwise specified, as of the date of this Pricing
Agreement, 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: ________________________________ _________________________________ As Representatives of and on behalf of SCHEDULE I SCHEDULE II Title of Designated Securities: ___% Notes due ______________ Principal Amount of Designated Securities offered: $___________ Denominations: US$1,000 (see "Other Terms") Price to Public: ______% of the principal amount of Purchase Price by Underwriters: ______% of the principal amount of the Indenture: Indenture, dated as of May 15, 1995, 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 JPMorgan Chase Bank, ABA No. [021-000-021], for the Account
of Closing Location: Hoffman Estates, Illinois Delayed Delivery: None Counsel: To the Company and Sears: To the Underwriters: ANNEX II DELAYED DELIVERY CONTRACT SEARS ROEBUCK ACCEPTANCE CORP.,
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
(State or Other Jurisdiction of Incorporation)
(Commission File Number)
(IRS Employer Identification No.)
Greenville, Delaware
(Address of principal executive offices)
(Zip Code)
May 29, 2002; and (ii) Mayer, Brown, Rowe & Maw, special counsel to Registrant and Sears, has delivered an opinion to Registrant and Sears, dated May 29, 2002, as to certain federal tax matters concerning the Notes. A copy of the opinion as to legality is attached as Exhibit 5, and a copy of the opinion as to certain tax matters is attached as Exhibit 8.
2
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 authorized.
Keith E. Trost
President
3
Incorporated, Bears, Stearns & Co. Inc. and Lehman Brothers Inc. as Representatives of the several Underwriters.
Incorporated, Bears, Stearns & Co. Inc. and Lehman Brothers Inc. as Representatives of the several Underwriters
named in Schedule I thereto.
amount of 7.00% Notes due June 1, 2032.
due June 1, 2032.
4
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
As Representatives of and on behalf of
the several Underwriters
1585 Broadway, 2nd Floor
New York, NY 10036
Keith E. Trost
President
Larry R. Raymond
Vice President and Treasurer
Accepted as of the date hereof:
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
Name: Harold J. Hendershot III
Title: Executive Director
PRICING AGREEMENT
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
Accepted as of the date hereof:
________________________________
[underwriter]
[underwriter]
the several Underwriters named in Schedule I hereto
Underwriter
Principal amount of Designated
Securities to be purchased
$
________________________
TOTAL
$ ________________________
the Designated Securities, plus accrued
interest from ______________ to the Time of
Delivery
Designated Securities, plus accrued
interest from ______________ to the Time of
Delivery
between the Company and JPMorgan Chase
Bank, as Trustee
Sears Roebuck Acceptance Corp., Account No. [910-2587590]
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
|
|
Accepted, [Date] in Greenville, Delaware |
|
SEARS ROEBUCK ACCEPTANCE CORP. By
|
Exhibit 1(b)
PRICING AGREEMENT
May 21, 2002
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
As Representatives of and on behalf of
the several Underwriters named in Schedule I hereto
c/o Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, NY 10036
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 May 21, 2002 (the "Underwriting Agreement"), executed between the Company and Sears, Roebuck and Co. ("Sears"), on the one hand, and Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and Lehman Brothers Inc., as representatives of and on behalf of the several Underwriters named in Schedule I hereto, on the other hand, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and, except where otherwise specified, as of the date of this Pricing Agreement, 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: /s/ Keith E. Trost |
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Sears, Roebuck and Co. By: /s/ Larry R. Raymond |
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Accepted as of the date hereof: Morgan Stanley & Co. Incorporated /s/ Harold J. Hendershot III As Representatives of and on behalf of |
SCHEDULE I
Underwriter |
Principal amount of Designated |
Morgan Stanley & Co. Incorporated |
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Bear, Stearns & Co. Inc. |
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Lehman Brothers Inc. |
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Banc of America Securities LLC |
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Banc One Capital Markets, Inc. |
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Credit Suisse First Boston Corporation |
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First Union Securities, Inc. |
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Goldman, Sachs & Co. |
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Merrill, Lynch, Pierce, Fenner & Smith |
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UBS Warburg LLC |
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|
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SCHEDULE II
Title of Designated Securities:
7.00% Notes due June 1, 2032
Principal amount of Designated Securities offered:
US$1,000,000,000
Denominations:
US$1,000 (see "Other Terms")
Price to Public:
97.101% of the principal amount of
the Designated SecuritiesPurchase Price by Underwriters:
96.226% of the principal amount of the Designated Securities
Indenture:
Indenture, dated as of May 15, 1995,
between the Company and JPMorgan
Chase Bank, as Trustee
Form of Designated Securities:
Global form only
Maturity:
June 1, 2032
Interest Rate:
7.00%
Interest Payment Dates:
June 1 and December 1
Redemption Provisions:
Incorporated by reference to the attached Form of Note
Sinking Fund Provisions:
None
Time of Delivery:
8:00 A.M., Chicago time, May 29, 2002
Funds in which payment by Underwriters to Company to be made:
Immediately available funds
Method of Payment:
Wire transfer to JPMorgan Chase Bank, ABA No. 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, Senior Vice President, General Counsel, Sears, Roebuck and Co.
- Mayer, Brown, Rowe & Maw, special counsel to the Company and Sears
To the Underwriters:
- Cleary, Gottlieb, Steen & Hamilton
Other Terms:
(a) For purposes of this Pricing Agreement only, Section 4 of the Underwriting Agreement shall be amended in the following manner. The following paragraphs shall be inserted at the end of the existing Section 4:
"Each Underwriter, several and not jointly, represents and agrees that:
(i) it has not offered or sold and, prior to the expiry of the period of six months from the issue date of the Designated Securities, will not offer or sell any Designated Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 of the United Kingdom (the "FSMA")) received by it in connection with the issue or sale of the Designated Securities in circumstances in which Section 21(1) of the FSMA does not apply to Sears or the Company; and
(iii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Designated Securities in, from or otherwise involving the United Kingdom."
(b) For purposes of this Pricing Agreement only, Section 7 of the Underwriting Agreement shall be amended in the following manner. The existing Section 7(b) shall be amended and restated in its entirety to read as follows:
"(b) To pay or cause to be paid all expenses, preapproved by the Company, incident to the performance of its obligations hereunder and under any Pricing Agreement, including the cost of all qualifications of the Securities under state securities laws (including reasonable fees of counsel to the Underwriters in connection with such qualifications and in connection with legal investment surveys) and the cost of printing this Agreement, any Pricing Agreement, and any blue sky and legal investment memoranda, and to indemnify and hold harmless the Underwriters from any documentary stamp or similar issue tax and any related interest or penalties (except to the extent that any such interest or penalties result from the failure of the Underwriters to timely pay any such tax of which they had knowledge) on the issue, sale or delivery of the Designated Securities to the Underwriters (it being understood that except as provided in this subsection (b) and in Section 10 hereof, the Underwriters will pay all of their own costs and expenses, including the cost of printing any Agreement among Underwriters, the fees of their counsel, transfer taxes on resale of any of such Designated Securities by them and any advertising expenses connected with any offers that they may make); and"
The following Section 7(c) shall be added:
"(c) To use its best efforts to have the Designated Securities approved for listing on the Luxembourg Stock Exchange or such other exchange as shall be agreed upon by you and the Company, upon the determination by you and the Company that the Company will apply for listing on the Luxembourg Stock Exchange."
(c) For purposes of this Pricing Agreement only, Section 8 of the Underwriting Agreement shall be amended in the following manner. The existing Section 8(g) shall be amended and restated in its entirety to read as follows:
"(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 Luxembourg (if the Designated Securities have been approved for listing on the Luxembourg Stock Exchange) or United States Federal or New York State authorities or a material disruption in securities settlement or clearance services in the United States shall have occurred, (iii) trading in securities generally on the Luxembourg Stock Exchange (if the Designated Securities have been approved for listing on the Luxembourg Stock Exchange) or the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established by such Exchange, any of which events, in your judgment, renders it impractical or inadvisable to proceed with the public offering or the delivery of the Designated Securities, or (iv) there shall have been any change in national or international political, legal, tax or regulatory conditions, any of which events, in your judgment, causes a substantial deterioration in the price and/or value of the Designated Securities;"
The following Section 8(j) shall be added:
"(j) Mayer, Brown, Rowe & Maw, special tax counsel for the Company, shall have furnished to you their written opinion, dated the Time of Delivery for such Designated Securities, in form satisfactory to you in your reasonable judgment, as to matters set forth under 'United States Tax Considerations' in the Prospectus as amended or supplemented."
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 _____ |
$___________ |
CUSIP NO.___________ |
SEARS ROEBUCK ACCEPTANCE CORP.
7.00% Note due June 1, 2032
7.00% |
7.00% |
Due 2032 |
Due 2032 |
Sears Roebuck Acceptance Corp., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the "Company"), for value received, hereby promises to pay to CEDE & Co., or registered assigns, the principal sum of ____________________ Dollars ($__________) upon presentation and surrender of this Note, on the first day of June, 2032 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 or the City of Luxembourg, 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 7.00% 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 June 1 or December 1, 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 December 1, 2002, in which case from May 29, 2002), semi-annually, commencing on December 1, 2002, on June 1 and December 1, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if this Note is dated after any May 15 and before the following June 1, or after any November 15 and before the following December 1, then this Note shall bear interest from such following June 1 or December 1, as applicable, provided, however, that if the Company shall default in the payment of interest due on such following June 1 or December 1, this Note shall bear interest from the next preceding June 1 or December 1 to which interest has been paid on such Note, or if no interest has been paid on such Note, then from May 29, 2002. The interest so payable on any June 1 or December 1, 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 May 15 prior to such June 1 or the November 15 prior to such December 1. 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 or the Maturity Date falls on a day that is not a Business Day, the interest or principal payment shall be made on the next day that is a Business Day, and no interest on such payments shall accrue for the period from and after the Interest Payment Date or the Maturity Date. Interest on the Note 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: May 29, 2002
Sears Roebuck Acceptance Corp. |
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By _____________________________ |
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By _____________________________ |
[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.
JPMorgan Chase Bank
By:___________________________________
Authorized Officer
[FORM OF REVERSE SIDE OF NOTE]
SEARS ROEBUCK ACCEPTANCE CORP.
7.00% Note due June 1, 2032
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 JPMORGAN CHASE 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 "7.00% Notes due June 1, 2032" of the Company (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 integral 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 or in the City of Luxembourg.
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 a 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.
10. The Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (the "Additional Amounts") to any holder of a Note who is a United States Alien (as defined below) as may be necessary in order that every net payment of the principal of or interest on such Note after deduction or withholding for or on account of any present or future tax, assessment or governmental charge imposed by the United States (or any political subdivision or taxing authority thereof or therein) upon, or as a result of, such payment, will not be less than the amount provided for in such Note to be then due and payable. However, the Company will not be required to make any payment of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge imposed because of the existence of any present or former connection between such holder (or between a fiduciary, settlor or beneficiary of, or a person holding a power over, such holder, if such holder is an estate or trust, or a partner or shareholder of such holder, if such holder is a partnership or corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, person holding a power, partner or shareholder) being or having been a citizen or resident thereof or being, or having been, present in the United States for 183 days or more in a taxable year or being, or having been, engaged in a trade or business or present therein or having, or having had, a permanent establishment therein;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as a personal holding company, foreign personal holding company, controlled foreign corporation, passive foreign investment company; private foundation or other tax exempt organization, in each case with respect to the United States, or as a corporation which accumulates earnings to avoid United States federal income tax;
(d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note;
(e) any tax, assessment or other governmental charge that a paying agent must withhold from any payment of principal of or interest on any Note, if another paying agent can make such payment without withholding;
(f) any tax, assessment or other governmental charge imposed because of the failure to comply with certification, identification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the United States of the holder or beneficial owner of such Note, if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed because such holder (or a partnership of which such holder is a member) is or was the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote;
(h) any tax, assessment or other governmental charge imposed on any holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner of the Note would not have been entitled to the payment of an Additional Amount had such beneficiary, settlor, member or beneficial owner been the holder of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) or (h).
The term "United States" means the United States of America, the Commonwealth of Puerto Rico and each territory and possession of the United States of America and the area subject to its jurisdiction. The term "United States Alien" means any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which, as to the United States, is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
Any additional amounts payable under this Paragraph and Paragraph 11(a) are herein referred to as "Additional Amounts," and all references herein to principal of and interest on the Notes shall include such Additional Amounts.
11. (a) The Company may redeem this Note at any time, in whole or in part, by paying the holder hereof the greater of:
100% of the principal amount of the portion of this Note that the Company redeems, plus any interest that has accrued, but that the Company has not previously paid to the holder hereof, up to the date that the Company redeems that portion of this Note; and
The Company must give the holder hereof at least 30, but not more than 60, days notice that it will redeem any portion of this Note. Interest will cease to accrue on that portion of this Note that the Company calls for redemption when the redemption price is paid.
"Adjusted Treasury Rate" means, for any redemption date, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming that the price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) was equal to the Comparable Treasury Price for that redemption date, plus 0.25%.
"Comparable Treasury Issue" means the United States Treasury security selected by a Reference Treasury Dealer appointed by the Company:
that has a maturity comparable to the remaining term of this Note, and
"Comparable Treasury Price" means, for any redemption date:
the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of those quotations (if any), or
"Reference Treasury Dealer" means each of Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc., and Lehman Brothers Inc., and their respective successors; provided, however, that if any of them ceases to be a primary U.S. Government securities dealer in New York City, the Company may replace that entity with another primary U.S. Government securities dealer in New York City.
"Reference Treasury Dealer Quotation" means, for each of at least four Reference Treasury Dealers selected by the Company and any redemption date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day before that redemption date. The Trustee will determine this average.
(b) The Notes may also be redeemed prior to maturity as provided under this Paragraph 11(b).
The Notes may be redeemed at the option of the Company, as a whole but not in part, at any time prior to maturity, upon the giving of a notice of redemption as described below, at a redemption price equal to 100% of the principal amount of the Notes together with accrued interest to the date fixed for redemption (the "Redemption Amount") if the Company determines that, as a result of (A) any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of the United States or of any political subdivision or taxing authority thereof or therein, or any change in the application, official interpretation or enforcement of such laws, regulations or rulings, including a decision rendered by a court of competent jurisdiction in the United States or any political subdivision thereof, whether or not such decision was rendered with respect to the Company; or (B) any action taken by a taxing authority which action is generally applied or is taken with respect to the Company, which change, amendment, action, decision or memorandum is promulgated on or after May 29, 2002, there is a substantial probability that the Company has or will become obligated to pay Additional Amounts with respect to the Notes in accordance with Paragraph 10 hereof, and the Company cannot avoid such obligation by taking reasonable measures available to it. Prior to the publication of any notice of redemption of the Notes pursuant to the foregoing, the Company shall deliver to the Trustee an opinion of legal counsel to the Company stating that the Company is entitled to effect such redemption and a certificate setting forth facts showing that the conditions precedent to the right of the Company to so redeem have occurred.
Notice of redemption will be given by the Company not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the redemption price will be specified in the notice. Each notice shall be given in the manner described in Paragraph 11(c).
(c) (i) Any redemption notice given under Paragraph 11(b) above shall state the date fixed for redemption and the Redemption Amount. On the redemption date, the Company shall be bound to redeem the Notes to which such notice relates at their Redemption Amount upon presentment thereof. Notices to holders shall be mailed by the Trustee, first class postage prepaid, at their last addresses as they appear in the Security Register. If applicable, notice of intention to redeem the Notes also shall be given in the manner described in subparagraph (ii) below. Such notice by publication shall be published at least once a week for two successive weeks prior to the date fixed for redemption, the first such publication to be not less than 30 days nor more than 60 days prior to the date fixed for redemption.
(ii) If and so long as the Notes are listed on the Luxembourg Stock Exchange and such Exchange shall so require, notices to holders of the Notes will be given in a daily newspaper of general circulation in Luxembourg. If publication in Luxembourg is not practical, such publication shall be made elsewhere in Europe. The term "daily newspaper" shall mean a newspaper customarily published on each Business Day in morning editions, whether or not it shall be published in Saturday, Sunday or holiday editions. Such publication is expected to be made in the Luxemburger Wort. Such notices will be deemed to have been given on the date of such publication. If by reason of the temporary or permanent suspension of publication of any newspaper or by reason of any other cause, it shall be impossible to make publication of such notice in a daily newspaper as herein provided, then such publication or other notice in lieu thereof, as shall be made by the Trustee, shall constitute sufficient publication of such notice, if such publication or other notice shall, so far as may be possible, approximate the terms and conditions of the publication in lieu of which it is given. The Trustee shall promptly furnish to the Company and each other paying agency a copy of each such notice so published.
12. Notwithstanding anything to the contrary in the Indenture, the term "Business Day" shall mean, for all purposes with respect to the Notes, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a legal holiday for banking institutions in any of the City of Wilmington, Delaware, the City of Chicago, the City of New York, the City of Luxembourg, or the city in which the principal corporate trust office of the Trustee is located.
13. This Note shall be governed by the laws of the State of Delaware.
Exhibit 4
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 1 |
$500,000,000 |
CUSIP NO. 812404 BK 6 |
SEARS ROEBUCK ACCEPTANCE CORP.
7.00% Note due June 1, 2032
7.00% | 7.00% |
Due 2032 | Due 2032 |
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 CEDE & Co., or registered assigns, the principal sum of Five Hundred Million Dollars ($500,000,000) upon presentation and surrender of this Note, on the first day of June, 2032 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 or the City of Luxembourg, 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 7.00% 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 June 1 or December 1, 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 December 1, 2002, in which case from May 29, 2002), semi-annually, commencing on December 1, 2002, on June 1 and December 1, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if this Note is dated after any May 15 and before the following June 1, or after any November 15 and before the following December 1, then this Note shall bear interest from such following June 1 or December 1, as applicable, provided, however, that if the Company shall default in the payment of interest due on such following June 1 or December 1, this Note shall bear interest from the next preceding June 1 or December 1 to which interest has been paid on such Note, or if no interest has been paid on such Note, then from May 29, 2002. The interest so payable on any June 1 or December 1, 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 May 15 prior to such June 1 or the November 15 prior to such December 1. 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 or the Maturity Date falls on a day that is not a Business Day, the interest or principal payment shall be made on the next day that is a Business Day, and no interest on such payments shall accrue for the period from and after the Interest Payment Date or the Maturity Date. Interest on the Note 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: May 29, 2002
Sears Roebuck Acceptance Corp.
By _____________________________ By _____________________________ |
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated and referred to in the within-mentioned Indenture.
JPMorgan Chase Bank
By:___________________________________
Authorized Officer
REVERSE SIDE OF NOTE
SEARS ROEBUCK ACCEPTANCE CORP.
7.00% Note due June 1, 2032
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 JPMORGAN CHASE 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 "7.00% Notes due June 1, 2032" of the Company (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 integral 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 or in the City of Luxembourg.
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 a 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.
10. The Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (the "Additional Amounts") to any holder of a Note who is a United States Alien (as defined below) as may be necessary in order that every net payment of the principal of or interest on such Note after deduction or withholding for or on account of any present or future tax, assessment or governmental charge imposed by the United States (or any political subdivision or taxing authority thereof or therein) upon, or as a result of, such payment, will not be less than the amount provided for in such Note to be then due and payable. However, the Company will not be required to make any payment of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge imposed because of the existence of any present or former connection between such holder (or between a fiduciary, settlor or beneficiary of, or a person holding a power over, such holder, if such holder is an estate or trust, or a partner or shareholder of such holder, if such holder is a partnership or corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, person holding a power, partner or shareholder) being or having been a citizen or resident thereof or being, or having been, present in the United States for 183 days or more in a taxable year or being, or having been, engaged in a trade or business or present therein or having, or having had, a permanent establishment therein;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as a personal holding company, foreign personal holding company, controlled foreign corporation, passive foreign investment company; private foundation or other tax exempt organization, in each case with respect to the United States, or as a corporation which accumulates earnings to avoid United States federal income tax;
(d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note;
(e) any tax, assessment or other governmental charge that a paying agent must withhold from any payment of principal of or interest on any Note, if another paying agent can make such payment without withholding;
(f) any tax, assessment or other governmental charge imposed because of the failure to comply with certification, identification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the United States of the holder or beneficial owner of such Note, if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed because such holder (or a partnership of which such holder is a member) is or was the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote;
(h) any tax, assessment or other governmental charge imposed on any holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner of the Note would not have been entitled to the payment of an Additional Amount had such beneficiary, settlor, member or beneficial owner been the holder of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) or (h).
The term "United States" means the United States of America, the Commonwealth of Puerto Rico and each territory and possession of the United States of America and the area subject to its jurisdiction. The term "United States Alien" means any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which, as to the United States, is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
Any additional amounts payable under this Paragraph and Paragraph 11(a) are herein referred to as "Additional Amounts," and all references herein to principal of and interest on the Notes shall include such Additional Amounts.
11. (a) The Company may redeem this Note at any time, in whole or in part, by paying the holder hereof the greater of:
100% of the principal amount of the portion of this Note that the Company redeems, plus any interest that has accrued, but that the Company has not previously paid to the holder hereof, up to the date that the Company redeems that portion of this Note; and
The Company must give the holder hereof at least 30, but not more than 60, days notice that it will redeem any portion of this Note. Interest will cease to accrue on that portion of this Note that the Company calls for redemption when the redemption price is paid.
"Adjusted Treasury Rate" means, for any redemption date, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming that the price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) was equal to the Comparable Treasury Price for that redemption date, plus 0.25%.
"Comparable Treasury Issue" means the United States Treasury security selected by a Reference Treasury Dealer appointed by the Company:
that has a maturity comparable to the remaining term of this Note, and
"Comparable Treasury Price" means, for any redemption date:
the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of those quotations (if any), or
"Reference Treasury Dealer" means each of Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc., and Lehman Brothers Inc., and their respective successors; provided, however, that if any of them ceases to be a primary U.S. Government securities dealer in New York City, the Company may replace that entity with another primary U.S. Government securities dealer in New York City.
"Reference Treasury Dealer Quotation" means, for each of at least four Reference Treasury Dealers selected by the Company and any redemption date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day before that redemption date. The Trustee will determine this average.
(b) The Notes may also be redeemed prior to maturity as provided under this Paragraph 11(b).
The Notes may be redeemed at the option of the Company, as a whole but not in part, at any time prior to maturity, upon the giving of a notice of redemption as described below, at a redemption price equal to 100% of the principal amount of the Notes together with accrued interest to the date fixed for redemption (the "Redemption Amount") if the Company determines that, as a result of (A) any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of the United States or of any political subdivision or taxing authority thereof or therein, or any change in the application, official interpretation or enforcement of such laws, regulations or rulings, including a decision rendered by a court of competent jurisdiction in the United States or any political subdivision thereof, whether or not such decision was rendered with respect to the Company; or (B) any action taken by a taxing authority which action is generally applied or is taken with respect to the Company, which change, amendment, action, decision or memorandum is promulgated on or after May 29, 2002, there is a substantial probability that the Company has or will become obligated to pay Additional Amounts with respect to the Notes in accordance with Paragraph 10 hereof, and the Company cannot avoid such obligation by taking reasonable measures available to it. Prior to the publication of any notice of redemption of the Notes pursuant to the foregoing, the Company shall deliver to the Trustee an opinion of legal counsel to the Company stating that the Company is entitled to effect such redemption and a certificate setting forth facts showing that the conditions precedent to the right of the Company to so redeem have occurred.
Notice of redemption will be given by the Company not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the redemption price will be specified in the notice. Each notice shall be given in the manner described in Paragraph 11(c).
(c) (i) Any redemption notice given under Paragraph 11(b) above shall state the date fixed for redemption and the Redemption Amount. On the redemption date, the Company shall be bound to redeem the Notes to which such notice relates at their Redemption Amount upon presentment thereof. Notices to holders shall be mailed by the Trustee, first class postage prepaid, at their last addresses as they appear in the Security Register. If applicable, notice of intention to redeem the Notes also shall be given in the manner described in subparagraph (ii) below. Such notice by publication shall be published at least once a week for two successive weeks prior to the date fixed for redemption, the first such publication to be not less than 30 days nor more than 60 days prior to the date fixed for redemption.
(ii) If and so long as the Notes are listed on the Luxembourg Stock Exchange and such Exchange shall so require, notices to holders of the Notes will be given in a daily newspaper of general circulation in Luxembourg. If publication in Luxembourg is not practical, such publication shall be made elsewhere in Europe. The term "daily newspaper" shall mean a newspaper customarily published on each Business Day in morning editions, whether or not it shall be published in Saturday, Sunday or holiday editions. Such publication is expected to be made in the Luxemburger Wort. Such notices will be deemed to have been given on the date of such publication. If by reason of the temporary or permanent suspension of publication of any newspaper or by reason of any other cause, it shall be impossible to make publication of such notice in a daily newspaper as herein provided, then such publication or other notice in lieu thereof, as shall be made by the Trustee, shall constitute sufficient publication of such notice, if such publication or other notice shall, so far as may be possible, approximate the terms and conditions of the publication in lieu of which it is given. The Trustee shall promptly furnish to the Company and each other paying agency a copy of each such notice so published.
12. Notwithstanding anything to the contrary in the Indenture, the term "Business Day" shall mean, for all purposes with respect to the Notes, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a legal holiday for banking institutions in any of the City of Wilmington, Delaware, the City of Chicago, the City of New York, the City of Luxembourg, or the city in which the principal corporate trust office of the Trustee is located.
13. This Note shall be governed by the laws of the State of Delaware.
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 2 |
$500,000,000
|
CUSIP NO. 812404 BK 6 |
SEARS ROEBUCK ACCEPTANCE CORP.
7.00% Note due June 1, 2032
7.00% | 7.00% |
Due 2032 | Due 2032 |
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 CEDE & Co., or registered assigns, the principal sum of Five Hundred Million Dollars ($500,000,000) upon presentation and surrender of this Note, on the first day of June, 2032 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 or the City of Luxembourg, 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 7.00% 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 June 1 or December 1, 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 December 1, 2002, in which case from May 29, 2002), semi-annually, commencing on December 1, 2002, on June 1 and December 1, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if this Note is dated after any May 15 and before the following June 1, or after any November 15 and before the following December 1, then this Note shall bear interest from such following June 1 or December 1, as applicable, provided, however, that if the Company shall default in the payment of interest due on such following June 1 or December 1, this Note shall bear interest from the next preceding June 1 or December 1 to which interest has been paid on such Note, or if no interest has been paid on such Note, then from May 29, 2002. The interest so payable on any June 1 or December 1, 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 May 15 prior to such June 1 or the November 15 prior to such December 1. 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 or the Maturity Date falls on a day that is not a Business Day, the interest or principal payment shall be made on the next day that is a Business Day, and no interest on such payments shall accrue for the period from and after the Interest Payment Date or the Maturity Date. Interest on the Note 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: May 29, 2002
Sears Roebuck Acceptance Corp.
By _____________________________ By _____________________________
|
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated and referred to in the within-mentioned Indenture.
JPMorgan Chase Bank
By: ___________________________________
REVERSE SIDE OF NOTE
SEARS ROEBUCK ACCEPTANCE CORP.
7.00% Note due June 1, 2032
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 JPMORGAN CHASE 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 "7.00% Notes due June 1, 2032" of the Company (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 integral 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 or in the City of Luxembourg.
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 a 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.
10. The Company will, subject to the exceptions and limitations set forth below, pay such additional amounts (the "Additional Amounts") to any holder of a Note who is a United States Alien (as defined below) as may be necessary in order that every net payment of the principal of or interest on such Note after deduction or withholding for or on account of any present or future tax, assessment or governmental charge imposed by the United States (or any political subdivision or taxing authority thereof or therein) upon, or as a result of, such payment, will not be less than the amount provided for in such Note to be then due and payable. However, the Company will not be required to make any payment of Additional Amounts to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge imposed because of the existence of any present or former connection between such holder (or between a fiduciary, settlor or beneficiary of, or a person holding a power over, such holder, if such holder is an estate or trust, or a partner or shareholder of such holder, if such holder is a partnership or corporation) and the United States, including, without limitation, such holder (or such fiduciary, settlor, beneficiary, person holding a power, partner or shareholder) being or having been a citizen or resident thereof or being, or having been, present in the United States for 183 days or more in a taxable year or being, or having been, engaged in a trade or business or present therein or having, or having had, a permanent establishment therein;
(b) any estate, inheritance, gift, sales, transfer or personal property tax or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge imposed by reason of such holder's past or present status as a personal holding company, foreign personal holding company, controlled foreign corporation, passive foreign investment company; private foundation or other tax exempt organization, in each case with respect to the United States, or as a corporation which accumulates earnings to avoid United States federal income tax;
(d) any tax, assessment or other governmental charge which is payable otherwise than by withholding from payments on or in respect of any Note;
(e) any tax, assessment or other governmental charge that a paying agent must withhold from any payment of principal of or interest on any Note, if another paying agent can make such payment without withholding;
(f) any tax, assessment or other governmental charge imposed because of the failure to comply with certification, identification, documentation, information or other reporting requirement concerning the nationality, residence, identity or connection with the United States of the holder or beneficial owner of such Note, if such compliance is required by statute or by regulation of the United States or of any political subdivision or taxing authority thereof or therein as a precondition to relief or exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed because such holder (or a partnership of which such holder is a member) is or was the actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote;
(h) any tax, assessment or other governmental charge imposed on any holder who is a fiduciary or partnership or other than the sole beneficial owner of the Note, but only to the extent that a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner of the Note would not have been entitled to the payment of an Additional Amount had such beneficiary, settlor, member or beneficial owner been the holder of such Note; or
(i) any combination of items (a), (b), (c), (d), (e), (f), (g) or (h).
The term "United States" means the United States of America, the Commonwealth of Puerto Rico and each territory and possession of the United States of America and the area subject to its jurisdiction. The term "United States Alien" means any person who, for United States federal income tax purposes, is a foreign corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or trust, or a foreign partnership one or more of the members of which, as to the United States, is a foreign corporation, a non-resident alien individual or a non-resident alien fiduciary of a foreign estate or trust.
Any additional amounts payable under this Paragraph and Paragraph 11(a) are herein referred to as "Additional Amounts," and all references herein to principal of and interest on the Notes shall include such Additional Amounts.
11. (a) The Company may redeem this Note at any time, in whole or in part, by paying the holder hereof the greater of:
100% of the principal amount of the portion of this Note that the Company redeems, plus any interest that has accrued, but that the Company has not previously paid to the holder hereof, up to the date that the Company redeems that portion of this Note; and
The Company must give the holder hereof at least 30, but not more than 60, days notice that it will redeem any portion of this Note. Interest will cease to accrue on that portion of this Note that the Company calls for redemption when the redemption price is paid.
"Adjusted Treasury Rate" means, for any redemption date, the rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming that the price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) was equal to the Comparable Treasury Price for that redemption date, plus 0.25%.
"Comparable Treasury Issue" means the United States Treasury security selected by a Reference Treasury Dealer appointed by the Company:
that has a maturity comparable to the remaining term of this Note, and
"Comparable Treasury Price" means, for any redemption date:
the average of the Reference Treasury Dealer Quotations for that redemption date, after excluding the highest and lowest of those quotations (if any), or
"Reference Treasury Dealer" means each of Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc., and Lehman Brothers Inc., and their respective successors; provided, however, that if any of them ceases to be a primary U.S. Government securities dealer in New York City, the Company may replace that entity with another primary U.S. Government securities dealer in New York City.
"Reference Treasury Dealer Quotation" means, for each of at least four Reference Treasury Dealers selected by the Company and any redemption date, the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m. (New York City time) on the third business day before that redemption date. The Trustee will determine this average.
(b) The Notes may also be redeemed prior to maturity as provided under this Paragraph 11(b).
The Notes may be redeemed at the option of the Company, as a whole but not in part, at any time prior to maturity, upon the giving of a notice of redemption as described below, at a redemption price equal to 100% of the principal amount of the Notes together with accrued interest to the date fixed for redemption (the "Redemption Amount") if the Company determines that, as a result of (A) any change in or amendment to the laws (or any regulations or rulings promulgated thereunder) of the United States or of any political subdivision or taxing authority thereof or therein, or any change in the application, official interpretation or enforcement of such laws, regulations or rulings, including a decision rendered by a court of competent jurisdiction in the United States or any political subdivision thereof, whether or not such decision was rendered with respect to the Company; or (B) any action taken by a taxing authority which action is generally applied or is taken with respect to the Company, which change, amendment, action, decision or memorandum is promulgated on or after May 29, 2002, there is a substantial probability that the Company has or will become obligated to pay Additional Amounts with respect to the Notes in accordance with Paragraph 10 hereof, and the Company cannot avoid such obligation by taking reasonable measures available to it. Prior to the publication of any notice of redemption of the Notes pursuant to the foregoing, the Company shall deliver to the Trustee an opinion of legal counsel to the Company stating that the Company is entitled to effect such redemption and a certificate setting forth facts showing that the conditions precedent to the right of the Company to so redeem have occurred.
Notice of redemption will be given by the Company not less than 30 nor more than 60 days prior to the date fixed for redemption, which date and the redemption price will be specified in the notice. Each notice shall be given in the manner described in Paragraph 11(c).
(c) (i) Any redemption notice given under Paragraph 11(b) above shall state the date fixed for redemption and the Redemption Amount. On the redemption date, the Company shall be bound to redeem the Notes to which such notice relates at their Redemption Amount upon presentment thereof. Notices to holders shall be mailed by the Trustee, first class postage prepaid, at their last addresses as they appear in the Security Register. If applicable, notice of intention to redeem the Notes also shall be given in the manner described in subparagraph (ii) below. Such notice by publication shall be published at least once a week for two successive weeks prior to the date fixed for redemption, the first such publication to be not less than 30 days nor more than 60 days prior to the date fixed for redemption.
(ii) If and so long as the Notes are listed on the Luxembourg Stock Exchange and such Exchange shall so require, notices to holders of the Notes will be given in a daily newspaper of general circulation in Luxembourg. If publication in Luxembourg is not practical, such publication shall be made elsewhere in Europe. The term "daily newspaper" shall mean a newspaper customarily published on each Business Day in morning editions, whether or not it shall be published in Saturday, Sunday or holiday editions. Such publication is expected to be made in the Luxemburger Wort. Such notices will be deemed to have been given on the date of such publication. If by reason of the temporary or permanent suspension of publication of any newspaper or by reason of any other cause, it shall be impossible to make publication of such notice in a daily newspaper as herein provided, then such publication or other notice in lieu thereof, as shall be made by the Trustee, shall constitute sufficient publication of such notice, if such publication or other notice shall, so far as may be possible, approximate the terms and conditions of the publication in lieu of which it is given. The Trustee shall promptly furnish to the Company and each other paying agency a copy of each such notice so published.
12. Notwithstanding anything to the contrary in the Indenture, the term "Business Day" shall mean, for all purposes with respect to the Notes, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a legal holiday for banking institutions in any of the City of Wilmington, Delaware, the City of Chicago, the City of New York, the City of Luxembourg, or the city in which the principal corporate trust office of the Trustee is located.
13. This Note shall be governed by the laws of the State of Delaware.
Exhibit 5
Anastasia D. Kelly
Senior Vice President,
General Counsel
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, IL 60179
May 29, 2002
Sears Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, Delaware 19807
Sears, Roebuck and Co.
3333 Beverly Drive
Hoffman Estates, IL 60179
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of Sears, Roebuck and Co. ("Sears"). I have examined (i) Registration Statement No. 333-62847, as filed with the Securities and Exchange Commission on September 3, 1998 and as amended on September 11, 1998 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended (the "Act"), of $5,000,000,000 aggregate principal amount of debt securities (the "Debt Securities") of Sears Roebuck Acceptance Corp. ("SRAC") 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 prospectus, dated May 21, 2002 (the "Prospectus"), relating to the offering and sale of Debt Securities, which is part of the Registration Statement, and the Prospectus Supplement, dated May 21, 2002 (the "Prospectus Supplement"), relating to the offering and sale of $1,000,000,000 aggregate principal amount of 7.00% Notes due June 1, 2032 (the "7.00% Notes") of SRAC; (iii) the Indenture dated as of May 15, 1995 between SRAC and JPMorgan Chase Bank (successor in interest to The Chase Manhattan Bank, N.A..), as Trustee, governing the Debt Securities (the "Indenture"); (iv) (a) the Pricing Agreement dated May 21, 2002 among SRAC, Sears, Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and Lehman Brothers Inc., as Representatives of the several Underwriters identified in Schedule I thereto, relating to the sale of the 7.00% Notes and (b) the Underwriting Agreement dated May 21, 2002 among SRAC, Sears, Morgan Stanley & Co. Incorporated, Bear, Stearns & Co. Inc. and Lehman Brothers Inc.; as Representatives of the several Underwriters identified in Schedule I to the Pricing Agreement, and (v) the form of the 7.00% Notes. I am familiar with the proceedings heretofore taken by SRAC in connection with the authorization, registration, issuance and sale of the Notes.
I am of the opinion that the 7.00% Notes, when duly issued, executed, authenticated and delivered in the manner provided for in the Indenture and sold and paid for in accordance with the terms of the Pricing Agreement and the Underwriting Agreement, will be legally issued and will constitute valid and binding obligations of SRAC, enforceable against SRAC in accordance with their terms, except as the foregoing may be limited by bankruptcy, insolvency, reorganization, moratorium, liquidation, fraudulent conveyance and transfer or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity, 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 an opinion from Morris, Nichols, Arsht & Tunnell addressed to me and dated May 29, 2002.
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/ Anastasia D. Kelly |
page 2
Exhibit 8
Mayer, Brown, ROWE & MAW
190 SOUTH LA SALLE STREET
CHICAGO, ILLINOIS 60603-3441
Main Telephone |
May 29, 2002
Morgan Stanley & Co. Incorporated
Bear, Stearns & Co. Inc.
Lehman Brothers Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway, 2nd Floor
New York, New York 10036
As Representatives of the several Underwriters named in
Schedule I to the Pricing Agreement dated May 21, 2002
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, IL 60123
Sears Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, DE 19806
Re: |
Sears Roebuck Acceptance Corp. $1,000,000,000 of 7.00% Notes Due |
Ladies and Gentlemen:
We have acted as special tax counsel to Sears Roebuck Acceptance Corp., a Delaware corporation ("SRAC"), in connection with the issuance by SRAC of $1,000,000,000 of registered 7.00% Notes due June 1, 2032 (the "Notes") as described in the Prospectus Supplement dated May 21, 2002 (the "Prospectus Supplement") to the Prospectus dated May 21, 2002 (the "Prospectus"). The several Underwriters named in Schedule I to the Pricing Agreement (as defined below) are purchasing the Notes to be sold to the public in accordance with the terms of (i) the Pricing Agreement dated May 21, 2002 among SRAC, Sears, Roebuck & Co. ("Sears") and the several Underwriters (the "Pricing Agreement"), and (ii) the Underwriting Agreement dated May 21, 2002 among SRAC, Sears and the several Underwriters (the "Underwriting Agreement"). This opinion is being delivered pursuant to Section 8(j) of the
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12951435 01705337 |
MAYER, BROWN, ROWE & MAW |
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Morgan Stanley & Co. Incorporated |
Underwriting Agreement. All capitalized terms used herein and not otherwise defined have the meanings ascribed to them in the Underwriting Agreement.
In preparing our opinion we have reviewed the Prospectus, the Prospectus Supplement, the Underwriting Agreement and such other documents as we believe necessary for purposes of delivering this opinion. Our opinion is based on current provisions of the Internal Revenue Code of 1986, as amended (the "Code"), applicable Treasury regulations (the "Regulations"), and public administrative and judicial interpretations of the Code and the Regulations, all of which are subject to change, possibly with retroactive effect.
Subject to the foregoing, it is our opinion that the discussion included in the Prospectus Supplement "United States Tax Considerations" (the "Discussion") is a fair and accurate description of the material United States federal income and estate tax consequences of purchasing, owning and disposing of the Notes and is correct as of the date hereof, subject to the conditions, limitations, and assumptions described therein.
The Discussion does not cover all aspects of United States federal income and estate taxation that may be relevant to, or the actual tax effect that matters described therein will have on, any particular holder, and it does not address foreign, state, or local tax consequences. The Discussion does not cover the tax consequences applicable to all categories of investors, some of which (such as dealers in securities, insurance companies, individual retirement and other tax-deferred accounts, and other tax-exempt entities) may be subject to special rules.
Our opinion may change if (i) the applicable law changes, (ii) any of the facts with respect to the Notes as included in the Prospectus, Prospectus Supplement or Underwriting Agreement, change, or (iii) if the conduct of the parties is materially inconsistent with the facts reflected in the Prospectus, Prospectus Supplement or Underwriting Agreement.
Our opinion represents only our legal judgment based on current law and the facts as described above. Our opinion has no binding effect on the Internal Revenue Service or the courts. The Internal Revenue Service may take a position contrary to our opinion, and if the matter is litigated, a court may reach a decision contrary to our opinion.
This opinion is solely for the special benefit of the several Underwriters named in Schedule I to the Pricing Agreement, Sears and SRAC. This opinion may not be relied upon by any other person without our prior written consent.
12951435 01705337 |
MAYER, BROWN, ROWE & MAW |
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Morgan Stanley & Co. Incorporated |
We hereby consent to the use of our opinion as set forth in the Prospectus Supplement and the reference to our firm in the Prospectus Supplement. We also consent to the filing of our opinion as part of SRAC's current report on Form 8-K dated on or about May 30, 2002.
JPMorgan Chase Bank, as Trustee, may rely on this opinion as if it were addressed to them.
Very truly yours,
/s/ Mayer, Brown, Rowe & Maw
MAYER, BROWN, ROWE & MAW
JRB
12951435 01705337 |
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