EXHIBIT 4(e)
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 3, 2003
(this "First Supplemental Indenture"), is by and among SEARS ROEBUCK
ACCEPTANCE CORP., a corporation organized and existing under the laws
of the State of Delaware (the "Company"), SEARS, ROEBUCK AND CO., a
corporation organized and existing under the laws of the State
of New York ("Sears") and BNY MIDWEST TRUST COMPANY, an Illinois trust
company (the "Trustee").
PRELIMINARY STATEMENT
The Company and the Trustee have entered into an Indenture,
dated as of October 1, 2002 (the "Indenture"). Capitalized terms
used herein have the meanings assigned to them in the Indenture unless
otherwise indicated. In Section 11.1 of Article XI of the Indenture
it is provided that, among other things, the Company, when authorized by
resolution of its Board, and the Trustee, subject to the conditions and
restrictions in the Indenture contained, may from time to time and at any
time enter into an indenture or indentures supplemental thereto for the
following purposes among others: to add to the covenants and agreements
of the Company for the benefit of the Holders of all or any series of
Securities.
The Company created and issued under and in accordance with the
provisions of the Indenture, the Securities identified on Annex A hereto
(collectively, the "Notes").
Sears now desires to guarantee payment of principal, interest and
premium (if any) on the Notes irrevocably and unconditionally and to
enter into this First Supplemental Indenture to evidence this guarantee
of the Notes.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
1.The following shall be added as additional definitions in
Section 1.1 of Article I of the Indenture:
Benefitted Party
The term "Benefitted Party" shall have the meaning specified in
Section 14.13.
First Supplemental Indenture
The term "First Supplemental Indenture" shall mean the First
Supplemental Indenture, dated November 3, 2003, by and among the
Company, Sears and the Trustee.
Notes
The term "Notes" shall have the meaning specified in the
Preliminary Statement of the First Supplemental Indenture and
shall include all Securities outstanding under the Indenture on the
date hereof and any Security issued upon registration of transfer
or exchange of any such Security or upon replacement of a lost,
stolen, mutilated or destroyed such Security, but shall not
mean any Securities authorized and issued after the date hereof.
Guarantee
The term "Guarantee" shall mean the guarantee of Sears set forth
in Section 14.13.
2.The following shall be added as new Section 14.13 of Article XIV
of the Indenture:
Section 14.13. Guarantee. Subject to the provisions of this
Indenture and any supplemental indenture hereto, Sears hereby
irrevocably and unconditionally guarantees to each
Holder of a Note outstanding on the date of the First
Supplemental Indenture or any Note thereafter authenticated
and delivered by the Trustee and to the Trustee and its successors
and assigns, that: (i) the principal of (and premium, if any) and
interest on the Notes shall be paid in full when due, whether at
maturity, by acceleration or otherwise, and (ii) in case of any
extension of time in payment or renewal of any Notes or pursuant
to any cure period provisions of the Notes or the Indenture, they
shall be paid in full when due in accordance with the terms of the
extension or renewal or cure period. Failing payment when due of
any amount so guaranteed, Sears shall be obligated to pay the same.
Sears agrees that this is a guarantee of payment and not
a guarantee of collection. For the avoidance of doubt, the
Guarantee does not extend to nor shall it benefit the Holder of
any Security issued under the Indenture other than the Notes, including
any Security authorized and issued after the date hereof,
unless the terms of such Security specifically make this
Guarantee applicable thereto and Sears consents to such application.
Sears hereby agrees that its obligations with regard to
the Guarantee shall be unconditional, irrespective of any circumstances
which might otherwise constitute a legal or equitable defense
of a guarantor. In the event of a default in the payment of
principal, interest or premium (if any) the Trustee or any
Holder of Notes may seek to enforce the Guarantee against
Sears without first proceeding against the Company.
Sears further, to the extent permitted by law, hereby
waives (a) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of
any other person or the failure of the Trustee, the Holders
or the Company (each a "Benefitted Party") to file or
enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other person,
(b) notice of the existence, creation or incurring of any new
or additional indebtedness or obligation, (c) any defense based
upon an election of remedies by a Benefitted Party, including
but not limited to an election law which provides that the
obligation of a surety must be neither larger in amount nor
in other respects more burdensome than that of the principal,
(d) any defense arising because of a Benefitted
Party's election, in any proceeding instituted under
Federal bankruptcy law, of the application of
11 U.S.C. Section 1111(b)(2) or (e) any defense based
on any borrowing or grant of a security
interest under 11 U.S.C. Section 364. Sears hereby
covenants that the Guarantee shall not be
discharged except by complete payment of principal,
interest and premium (if any) in accordance
with the provisions contained in the Notes, the Guarantee,
this Indenture and any supplemental indenture hereto.
If any Holder or the Trustee is required by any
court or otherwise to return to either the Company or
Sears, or any custodian acting in relation to either
the Company or Sears, any amount paid by the Company
or Sears to the Trustee or such Holder, the Guarantee,
to the extent theretofore discharged, shall be reinstated
in full force and effect. Sears agrees that it shall not
be entitled to any right of subrogation in relation to the
Holders or the Trustee in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
The Guarantee is a continuing guarantee and shall remain
in full force and effect and shall be binding upon Sears and
its successors and assigns until full and final payment of all of
principal, interest and premium (if any) under the Notes and
shall inure to the benefit of the successors and assigns of the
Trustee and the Holders and, in the event of any transfer or
assignment of rights by any Holder or the Trustee, the rights
and privileges herein conferred upon that party shall automatically
extend to and be vested in such transferee or assignee, all
subject to the terms and conditions hereof.
Sears acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this
First Supplemental Indenture. Sears, and by its acceptance
hereof, each beneficiary hereof, hereby confirms that it is its
intention that the Guarantee not constitute a fraudulent transfer
or conveyance for purposes of any Federal bankruptcy law, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar Federal, state or foreign law to the extent
applicable to the Guarantee. To effectuate the foregoing intention,
each such person hereby irrevocably agrees that the obligation of Sears
under the Guarantee shall be limited to the maximum amount as will,
after giving effect to such maximum amount and all other (contingent
or otherwise) liabilities of Sears that are relevant
under such laws, result in the obligations of Sears in respect
of such maximum amount not constituting a fraudulent transfer or
conveyance.
3. Effect of First Supplemental Indenture
Sears hereby agrees that by virtue of its execution and delivery
of this First Supplemental Indenture, it shall be deemed to have
signed on each Note issued under the Indenture the notation
of the Guarantee and accordingly, the Guarantee shall be deemed
to be a part of each Note.
4. Miscellaneous
Ratification of Indenture; First Supplemental Indenture; Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This First Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of a Note heretofore or hereafter authenticated and delivered shall be
bound hereby.
Governing Law. This First Supplemental Indenture shall be governed in
accordance with the internal laws of the State of Delaware.
Trustee Makes No Representations. The Trustee makes no representation
as to the validity or sufficiency of this First Supplemental Indenture.
Counterparts. This First Supplemental Indenture may be simultaneously
executed in any number of counterparts, each of which when so executed
and delivered shall be an original; but such counterparts shall together
constitute but one and the same instrument.
Effect of Headings. All descriptive headings of this First Supplemental
Indenture are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
IN WITNESS HEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed, and the corporate seal of the Trustee to be
hereunto affixed and attested, all as of the day and year first above written.
SEARS ROEBUCK ACCEPTANCE CORP.
By: /s/ Keith E. Trost
-------------------
Name: Keith E. Trost
Title: President
Attest:
/s/Kristin L. Kruska
- --------------------
Name: Kristin L. Kruska
Title: Assistant Secretary
SEARS, ROEBUCK AND CO.
By: /s/Glenn R. Richter
---------------------
Name: Glenn R. Richter
Title: Senior Vice President and Chief Financial Officer
Attest:
/s/April Hanes-Dowd
- -----------------------
Name: April Hanes-Dowd
Title: Secretary
BNY MIDWEST TRUST COMPANY,
As Trustee
By: /s/M. Callahan
----------------------
Name: M. Callahan
Title: Assistant Vice President
Attest:
/s/ D. G. Donovan
- --------------------
Name: D. G. Donovan
Title: Assistant Vice President
ANNEX A
MATURITY
SERIES DATE COUPON CUSIP# PRINCIPAL
- -------------- -------- ------- ------- ---------
Medium Term Notes Series VI 1/7/04 Variable 81240QMS8 $ 201,385,000
Medium Term Notes Series VI 1/7/04 Variable 81240QMS8 $ 57,000,000
Medium Term Notes Series VI 2/23/04 Variable 81240QMT6 $ 60,100,000
Medium Term Notes Series VI 2/23/04 Variable 81240QMT6 $ 95,500,000
Medium Term Notes Series VI 2/23/04 Variable 81240QMT6 $ 3,000,000
Medium Term Notes Series VI 2/23/04 Variable 81240QMT6 $ 20,000,000
Medium Term Notes Series VI 2/23/04 Variable 81240QMT6 $ 15,000,000
Medium Term Notes Series VI 3/23/04 Variable 81240QMU3 $ 50,000,000
Medium Term Notes Series VI 4/23/04 Variable 81240QMV1 $ 85,500,000
Medium Term Notes Series VI 4/23/04 Variable 81240QMV1 $ 45,000,000
Medium Term Notes Series VI 4/23/04 Variable 81240QMV1 $ 25,000,000
Medium Term Notes Series VI 5/11/04 Variable 81240QMW9 $ 132,000,000
Medium Term Notes Series VI 5/11/04 Variable 81240QMW9 $ 31,500,000
Medium Term Notes Series VI 5/11/04 Variable 81240QMW9 $ 500,000
Medium Term Notes Series VI 5/11/04 Variable 81240QMW9 $ 2,000,000
Medium Term Notes Series VI 5/11/04 Variable 81240QMW9 $ 5,000,000
Medium Term Notes Series VI 5/12/04 Variable 81240QMX7 $ 25,000,000
Medium Term Notes Series VII 2/20/04 Variable 81240QMY5 $ 98,050,000
Medium Term Notes Series VII 2/20/04 Variable 81240QMY5 $ 200,000
Medium Term Notes Series VII 2/20/04 Variable 81240QMY5 $ 6,500,000
Medium Term Notes Series VII 2/20/04 Variable 81240QMY5 $ 40,000,000
Medium Term Notes Series VII 2/20/04 Variable 81240QMY5 $ 5,000,000
Medium Term Notes Series VII 2/25/04 Variable 81240QMZ2 $ 35,500,000
Medium Term Notes Series VII 2/25/04 Variable 81240QMZ2 $ 1,000,000
Medium Term Notes Series VII 2/25/04 Variable 81240QMZ2 $ 77,000,000
Medium Term Notes Series VII 2/25/04 Variable 81240QMZ2 $ 50,000,000
Medium Term Notes Series VII 2/25/04 Variable 81240QMZ2 $ 25,000,000
Medium Term Notes Series VII 2/25/04 Variable 81240QMZ2 $ 61,700,000
Medium Term Notes Series VII 3/9/04 Variable 81240QNA6 $ 6,000,000
Medium Term Notes Series VII 3/9/04 Variable 81240QNA6 $ 6,000,000
Medium Term Notes Series VII 3/9/04 Variable 81240QNA6 $ 50,000,000
Medium Term Notes Series VII 3/9/04 Variable 81240QNA6 $ 69,700,000
InterNotes Series I 12/15/05 5.650% 8124JFAA4 $ 35,384,000
InterNotes Series I 12/17/07 6.600% 8124JFAB2 $ 32,125,000
InterNotes Series I 12/17/12 7.400% 8124JFAC0 $ 45,163,000
InterNotes Series I 12/15/09 7.250% 8124JFAD8 $ 34,341,000
InterNotes Series I 12/15/05 5.750% 8124JFAE6 $ 42,917,000
InterNotes Series I 12/17/07 6.700% 8124JFAF3 $ 25,351,000
InterNotes Series I 12/17/12 7.500% 8124JFAG1 $ 54,895,000
InterNotes Series I 12/15/09 7.300% 8124JFAH9 $ 27,994,000
InterNotes Series I 1/16/06 6.000% 8124JFAJ5 $ 16,419,000
InterNotes Series I 1/15/08 7.000% 8124JFAK2 $ 17,834,000
InterNotes Series I 1/15/13 7.500% 8124JFAL0 $ 14,229,000
InterNotes Series I 1/15/10 7.400% 8124JFAM8 $ 10,459,000
InterNotes Series I 1/17/06 5.900% 8124JFAN6 $ 23,187,000
InterNotes Series I 1/15/08 6.900% 8124JFAP1 $ 19,777,000
InterNotes Series I 1/15/13 7.500% 8124JFAQ9 $ 21,498,000
InterNotes Series I 1/15/10 7.400% 8124JFAR7 $ 19,068,000
InterNotes Series I 1/17/06 5.900% 8124JFAS5 $ 50,190,000
InterNotes Series I 1/15/08 6.750% 8124JFAT3 $ 56,371,000
InterNotes Series I 1/15/13 7.500% 8124JFAU0 $ 36,380,000
InterNotes Series I 1/15/10 7.450% 8124JFAV8 $ 40,699,000
InterNotes Series I 1/17/06 5.400% 8124JFAW6 $ 59,717,000
InterNotes Series I 1/15/08 6.150% 8124JFAX4 $ 43,647,000
InterNotes Series I 2/15/05 4.950% 8124JFAY2 $ 89,413,000
InterNotes Series I 2/15/08 6.200% 8124JFAZ9 $ 39,998,000
InterNotes Series I 2/15/06 5.400% 8124JFBA3 $ 50,182,000
InterNotes Series I 2/15/08 6.100% 8124JFBB1 $ 27,315,000
InterNotes Series I 2/15/06 5.500% 8124JFBC9 $ 40,414,000
InterNotes Series I 2/15/08 6.250% 8124JFBD7 $ 24,063,000
InterNotes Series I 2/15/06 5.800% 8124JFBE5 $ 58,535,000
InterNotes Series I 2/15/08 6.650% 8124JFBF2 $ 46,362,000
InterNotes Series I 3/15/06 5.400% 8124JFBG0 $ 40,439,000
InterNotes Series I 3/17/08 6.200% 8124JFBH8 $ 24,349,000
InterNotes Series I 3/15/13 7.150% 8124JFBJ4 $ 13,819,000
InterNotes Series I 3/15/10 7.000% 8124JFBK1 $ 20,171,000
InterNotes Series I 3/15/06 5.200% 8124JFBL9 $ 26,670,000
InterNotes Series I 3/17/08 6.000% 8124JFBM7 $ 15,595,000
InterNotes Series I 3/15/13 7.050% 8124JFBN5 $ 8,358,000
InterNotes Series I 3/15/10 6.800% 8124JFBP0 $ 6,002,000
InterNotes Series I 3/15/06 5.750% 8124JFBQ8 $ 27,233,000
InterNotes Series I 3/17/08 6.650% 8124JFBR6 $ 18,041,000
InterNotes Series I 3/15/10 7.375% 8124JFBS4 $ 10,572,000
InterNotes Series I 3/15/13 7.750% 8124JFBT2 $ 10,792,000
InterNotes Series I 4/17/06 4.800% 8124JFBU9 $ 17,315,000
InterNotes Series I 4/15/08 5.600% 8124JFBV7 $ 11,146,000
InterNotes Series I 4/17/06 4.350% 8124JFBW5 $ 8,084,000
InterNotes Series I 4/15/08 5.250% 8124JFBX3 $ 7,349,000
InterNotes Series I 4/15/10 5.850% 8124JFBY1 $ 2,062,000
InterNotes Series I 4/15/13 6.450% 8124JFBZ8 $ 8,666,000
InterNotes Series I 5/15/06 4.050% 8124JFCA2 $ 5,190,000
InterNotes Series I 5/15/08 5.000% 8124JFCB0 $ 17,614,000
InterNotes Series I 5/17/10 5.625% 8124JFCC8 $ 2,288,000
InterNotes Series I 5/15/13 6.200% 8124JFCD6 $ 12,360,000
InterNotes Series II 5/15/06 3.850% 8124JFCE4 $ 5,562,000
InterNotes Series II 5/15/08 4.800% 8124JFCF1 $ 5,681,000
InterNotes Series II 5/17/10 5.450% 8124JFCH7 $ 4,309,000
InterNotes Series II 5/15/13 6.000% 8124JFCJ3 $ 8,851,000
InterNotes Series II 5/15/06 3.750% 8124JFCK0 $ 6,963,000
InterNotes Series II 5/15/08 4.750% 8124JFCL8 $ 5,872,000
InterNotes Series II 5/17/10 5.350% 8124JFCM6 $ 4,042,000
InterNotes Series II 5/15/13 6.000% 8124JFCN4 $ 13,799,000
InterNotes Series II 5/15/06 3.500% 8124JFCP9 $ 5,095,000
InterNotes Series II 5/15/08 4.350% 8124JFCQ7 $ 6,396,000
InterNotes Series II 5/17/10 5.000% 8124JFCR5 $ 4,386,000
InterNotes Series II 5/15/13 5.650% 8124JFCS3 $ 6,782,000
InterNotes Series II 5/15/06 3.550% 8124JFCT1 $ 5,709,000
InterNotes Series II 5/15/08 4.300% 8124JFCU8 $ 3,331,000
InterNotes Series II 5/17/10 4.950% 8124JFCV6 $ 3,570,000
InterNotes Series II 5/15/13 5.550% 8124JFCW4 $ 8,128,000
InterNotes Series II 6/15/06 3.500% 8124JFCX2 $ 4,169,000
InterNotes Series II 6/16/08 4.300% 8124JFCY0 $ 4,599,000
InterNotes Series II 6/15/10 4.950% 8124JFCZ7 $ 1,899,000
InterNotes Series II 6/17/13 5.500% 8124JFDA1 $ 6,340,000
InterNotes Series II 6/15/06 3.300% 8124JFDB9 $ 5,513,000
InterNotes Series II 6/16/08 4.100% 8124JFDC7 $ 6,630,000
InterNotes Series II 6/15/10 4.750% 8124JFDD5 $ 2,249,000
InterNotes Series II 6/17/13 5.400% 8124JFDE3 $ 14,202,000
InterNotes Series II 6/15/06 2.700% 8124JFDF0 $ 4,823,000
InterNotes Series II 6/16/08 3.550% 8124JFDG8 $ 2,480,000
InterNotes Series II 6/15/10 4.250% 8124JFDH6 $ 3,806,000
InterNotes Series II 6/17/13 4.900% 8124JFDJ2 $ 4,289,000
InterNotes Series II 6/15/06 2.700% 8124JFDK9 $ 1,808,000
InterNotes Series II 6/15/08 3.500% 8124JFDL7 $ 1,682,000
InterNotes Series II 6/15/10 4.150% 8124JFDM5 $ 2,234,000
InterNotes Series II 7/15/06 2.900% 8124JFDN3 $ 4,112,000
InterNotes Series II 7/15/08 3.850% 8124JFDP8 $ 2,450,000
InterNotes Series II 7/15/10 4.550% 8124JFDQ6 $ 5,013,000
Retail 2/1/43 7.400% 812404507 $ 250,000,000