ORCHARD SUPPLY HARDWARE CORPORATION, the Company
and
ORCHARD SUPPLY HARDWARE STORES CORPORATION, the Guarantor
$100,000,000
9-3/8% Senior Notes due 2002
FIRST SUPPLEMENTAL INDENTURE
Dated as of November 27, 1996
Supplemental Indenture to Indenture Dated
As of January 15, 1994
U.S. Trust Company of California, N.A., as Trustee
FIRST SUPPLEMENTAL INDENTURE dated as of November 27, 1996
(this "Supplemental Indenture") between ORCHARD SUPPLY HARDWARE
CORPORATION, a Delaware corporation (the "Company"), ORCHARD
SUPPLY HARDWARE STORES CORPORATION, a Delaware corporation
("Orchard"), SEARS ROEBUCK ACCEPTANCE CORP., a Delaware
corporation ("SRAC"), and U.S. TRUST COMPANY OF CALIFORNIA,
N.A., a national banking association validly organized and
existing under the laws of the United States, as Trustee (the
"Trustee").
RECITALS
WHEREAS, the Company entered into an Indenture dated as of
January 15, 1994 with Orchard and the Trustee (the "Indenture")
pursuant to which the Company issued $100,000,000 in principal
amount of 9-3/8% Senior Notes due 2002 (the "Securities"); and
WHEREAS, Sections 9.01(1), 9.01(2) and 9.01(4) of the
Indenture provide that the Company, when authorized by a Board
Resolution, the Guarantor, when authorized by a Guarantor's
Board Resolution, and the Trustee, as applicable, may amend or
supplement the Indenture or the Securities without notice to or
consent of any Securityholder to cure any ambiguity, defect or
inconsistency, to evidence the succession of another Person to
the Guarantor, the Company or any Subsidiary of the Company and
the assumption by such successor of the covenants of the
Guarantor, the Company or such Subsidiary, as the case may be,
or to make any other change that does not have a material
adverse effect on the rights of any Securityholder; and
WHEREAS, the Company, Orchard and the Trustee desire to
supplement the
Indenture to include SRAC as an additional Guarantor under the
Indenture, to amend certain provisions of the Indenture and to
make certain other changes as set forth herein; and
WHEREAS, SRAC has agreed to guarantee the Securities pursuant
to Article Ten of the Indenture; and
WHEREAS, the entry into this Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions
of the Indenture; and
WHEREAS, all things necessary to make this Supplemental
Indenture a valid agreement of the Company, in accordance with
its terms, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
Intending to be legally bound hereby, the parties agree for
the benefit of each of the parties hereto and for the equal and
ratable benefit of the Holders of the Securities except as
otherwise provided in the Indenture or this Supplemental
Indenture as follows:
SECTION 1. The Indenture is hereby amended as follows:
(a) By amending Section 1.01 to add the following definition
thereto, in the appropriate
alphabetical sequence:
"SRAC" means Sears Roebuck Acceptance Corp., a Delaware
corporation.
"Orchard" means Orchard Supply Hardware Stores Corporation, a
Delaware corporation.
(b) By amending Section 1.01 to delete the definition in the
Indenture of "Guarantor" and add the following definition of
that term:
"Guarantor," except as otherwise provided by Section 4.13,
means each of Orchard and SRAC, until a successor shall have
become such pursuant to the applicable provisions of this
Indenture, and thereafter "Guarantor" shall mean such successor.
(c) By deleting current Section 4.13 and adding as new Section
4.13 the following:
SECTION 4.13 Reports
So long as any of the Securities is outstanding, whether or
not the Guarantor is subject to Section 13(a) or 15(d) of the
Exchange Act, to the extent permitted by the SEC, the Guarantor
shall file with the SEC the annual reports, quarterly reports
and other documents which the Guarantor would have been required
to file with the SEC pursuant to such Sections 13(a) and 15(d)
if the Guarantor were so subject, such documents to be filed
with the SEC on or prior to the respective dates (the "Required
Filing Dates") by which the Guarantor would have been required
so to file such documents. The Guarantor and, if the Company is
then subject to Section 13(a) or 15(d) of the Exchange Act, the
Company shall mail to the Trustee and each Holder copies of the
annual reports, quarterly reports and other documents which the
Guarantor or the Company was required to file with the SEC
pursuant to Section 13(a) or 15(d) of the Exchange Act or the
Guarantor would have been required to file with the SEC pursuant
to Section 13(a) or 15(d) of the Exchange Act if the Guarantor
were subject to such Sections. The Guarantor and the Company
also shall comply with the other provisions of TIA Section
314(a). For purposes of this Section 4.13, "Guarantor" shall
mean SRAC so long as (i) SRAC remains a Guarantor under this
Indenture and (ii) the rating assigned by Standard & Poor's
Corporation to the long-term debt obligations of SRAC is BBB or
higher. If either clause (i) or (ii) of the preceding sentence
shall fail to be satisfied, "Guarantor" for purposes of this
Section 4.13 shall mean Orchard.
(d) By deleting the first paragraph of Section 11.02 and adding
as the new first paragraph of Section 11.02 the following:
Any notice or communication shall be sufficiently given if in
writing and delivered in Person, by facsimile and confirmed by
telecopy addressed as follows:
if to the Company or Orchard:
Orchard Supply Hardware Corporation
6450 Via Del Oro
San Jose, California 95119
Attention: Chief Financial Officer
Telecopy Number: (408) 629-7174
with copies, in either case, to:
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Attention: General Counsel
Telecopy Number: (847) 286-2471
if to SRAC:
Sears Roebuck Acceptance Corp.
3711 Kennett Pike
Greenville, Delaware 19807
Attention: President
Telecopy Number: (302) 888-3156
with copies to:
Sears, Roebuck and Co.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Attention: General Counsel
Telecopy Number: (847) 286-2471
if to the Trustee:
U.S. Trust Company of California, N.A.
515 South Flower Street, Suite 2800
Los Angeles, California 90071
Attention: Corporate Trust Division
Telecopy Number: (213) 488-4029
SECTION 2. Subject to the provisions of Article Ten of the
Indenture, SRAC agrees that it will duly and punctually perform
and observe all of the covenants and conditions in the Indenture
to be performed by a Guarantor as if SRAC had been an original
Guarantor of the Securities. Any Guarantee endorsed on any
Security delivered after the date of this First Supplemental
Indenture in substitution or exchange for any outstanding
Security as provided in the Indenture shall also be executed and
delivered by SRAC substantially in the form attached hereto as
Exhibit A, and each such Guarantee on each such Security shall
constitute an obligation of SRAC; provided, however, that each
Guarantee hereunder shall be effective without such notation.
SECTION 3. Except as specifically supplemented and amended by
this Supplemental Indenture, the terms and provisions of the
Indenture shall remain in full force and effect. The Indenture,
as supplemented and amended by this Supplemental Indenture and
all other indentures supplemental thereto, is in all respects
ratified and confirmed, and the Indenture, this Supplemental
Indenture, and all indentures supplemental thereto shall be
read, taken and construed as one and the same instrument.
SECTION 4. If any provision of this Supplemental Indenture
limits, qualifies or conflicts with another provision hereof
which is required to be included in this Supplemental Indenture
by the TIA, the required provision shall control.
SECTION 5. All agreements of the Company and the Guarantor in
this Supplemental Indenture shall bind their respective
successors. All agreements of the Trustee in this Supplemental
Indenture shall bind its successor.
SECTION 6. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby,
and a Holder shall have no claim therefor against any party
hereto.
SECTION 7. Except for the Indenture, this Supplemental
Indenture may not be used to interpret another indenture, loan
or debt agreement of the Guarantor, the Company or a Subsidiary
of the Company. Any such indenture, loan or debt agreement may
not be used to interpret this Supplemental Indenture.
SECTION 8. The laws of the State of New York shall govern
this Supplemental Indenture without regard to principles of
conflicts of law.
SECTION 9. All terms used in this Supplemental Indenture and
not otherwise defined herein that are defined in the Indenture
shall have the meanings set forth therein.
SECTION 10. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original,
but all of them together represent the same agreement.
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of
the date first written above.
ORCHARD SUPPLY HARDWARE CORPORATION
[SEAL]
By: ________________________________
Stephen M. Hilberg
Chief Financial Officer
Attest: ______________________ and Vice President - Finance
ORCHARD SUPPLY HARDWARE STORES
CORPORATION, as Guarantor
[SEAL]
By: ________________________________
Stephen M. Hilberg
Chief Financial Officer
Attest: ______________________ and Vice President - Finance
SEARS ROEBUCK ACCEPTANCE CORP.,
as Guarantor
[SEAL]
By: ________________________________
Stephen D. Carp
Vice President, Finance
Attest: ______________________
U.S. TRUST COMPANY OF CALIFORNIA, N.A.,
as Trustee
[SEAL]
By: ________________________________
Name:
Title:
Attest: ______________________
EXHIBIT A
GUARANTEE
Sears Roebuck Acceptance Corp. (hereinafter referred to as the
"Guarantor",
which term includes any successor person under the Indenture
referred to in the Security upon which this notation is
endorsed), has unconditionally guaranteed to the Holder of this
Security the due and punctual payment of the principal of,
premium, if any, and interest on and any other obligation of the
Company with respect to, the Security upon which this notation
is endorsed, when and as the same shall become due and payable,
whether at maturity, by acceleration, redemption, repayment or
otherwise, in accordance with the terms of such Security and of
the Indenture. In the case of the failure of the Company
punctually to pay any such principal, premium, interest or other
obligations under the Security upon which this notation is
endorsed or the Indenture, the Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same
shall become due and payable, whether at maturity, upon
acceleration, redemption, repayment or otherwise, and as if such
payment were made by the Company. The obligations of the
Guarantor to the Holder of the Security upon which this notation
is endorsed are also set forth in the Indenture.
This Guarantee shall not be valid until the Trustee signs the
certificate of authentication on the Security upon which this
notation is endorsed.
SEARS ROEBUCK ACCEPTANCE CORP.
By:_______________________________________
Title:
By:_______________________________________
Title:
CH_DOCS\12637.2