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EXHIBIT 10.1
EIGHTH AMENDMENT
TO
NOTE AGREEMENT
This Eighth Amendment to the Note Agreement (the "Amendment") is
entered into as of August 7, 1995 by and among ORCHARD SUPPLY HARDWARE
CORPORATION, a Delaware corporation (the "Company"), ORCHARD SUPPLY HARDWARE
STORES CORPORATION (formerly Orchard Holding Corporation), a Delaware
corporation ("Holding"), and TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF
AMERICA ("Teachers").
A. This Amendment amends the Note Agreement dated as of May 15,
1992, as amended by Amendment to Note Agreement dated as of February 8, 1993,
Second Amendment to Note Agreement dated as of November 23, 1993, Third
Amendment to Note Agreement dated as of November 30, 1993, the Fourth Amendment
to Note Agreement dated as of January 19, 1994, the Fifth Amendment to Note
Agreement dated as of January 29, 1994, the Sixth Amendment to Note Agreement
dated as of April 27, 1994 and the Seventh Amendment to Note Agreement dated as
of May 31, 1994 (collectively, the "Agreement") by and among the Company,
Holding and Teachers pursuant to which the Company's 10.64% Senior Secured
Notes due May 31, 2002 (the "Notes") were issued.
B. The purpose of this Amendment is to set forth the
understandings and agreements of the Company, Holding and Teachers with respect
to the following amendments of the provisions of the Agreement on the
conditions stated herein.
C. Section 19 of the Agreement provides that the Agreement may be
amended by an instrument in writing executed by the Company and the written
consent of the holders of at least 66-2/3% in aggregate principal amount of
outstanding Notes.
NOW, THEREFORE, based upon the foregoing and in consideration of the
covenants, agreements and undertakings contained in this Amendment, the parties
hereto agree as follows:
1. Section 14 of the Agreement is hereby amended by amending the
defined terms listed below to read in their entirety as follows:
a. Change of Control: the happening of either of the following
events: (i) Holding shall cease to own, beneficially and of record, 100% of the
capital stock of the Company; or (ii) a sale or transfer of 51% or more of the
equity of Holding to an entity that is not an Affiliate of the Company or
Holding, provided that for purposes of calculating the percentage of shares of
common stock or voting power of Holding so owned or controlled, shares issued
in connection with an underwritten registered public offering shall be excluded
from the calculation.
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b. Credit Agreement: that certain Credit Agreement dated as of
August 8, 1995 between the Company and Bank of America National Trust and
Savings Association, as the same may be amended, amended and restated,
supplemented, or otherwise modified from time to time.
c. Holding Guaranty: the guaranty of Holding dated as of August
8, 1995, executed by Holding in respect of the Obligations.
2. Section 11.4(e) of the Agreement is hereby amended to read in
its entirety as follows:
"(e) the Company may become and remain liable with respect to
reimbursement obligations in respect of Letters of Credit, provided,
that the Company's actual and contingent reimbursement obligations
with respect to all Letters of Credit shall not exceed, in the
aggregate, $10,000,000 at any time;"
3. By its signature below the Company further represents that
upon the effectiveness of this Amendment there are no defaults or Events of
Default under the terms of the Agreement.
4. The amendments to the Agreement specified herein shall become
effective as of the date specified above when executed by all of the parties
hereto.
5. All terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
6. In the event of any conflict or inconsistency between the
provisions of this Amendment and the provisions of the Agreement with respect
to the matters set forth herein, the provisions of this Amendment shall
control. Each and every other term, condition, covenant, representation,
warranty and provisions set forth in the Agreement shall remain in full force
and effect and is hereby ratified, adopted and confirmed in full. All
references to the Agreement in any other agreement or document shall hereafter
be deemed to refer to the Agreement, as amended.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first written above.
ORCHARD SUPPLY HARDWARE CORPORATION,
a Delaware corporation
ATTEST: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Financial Officer
By:_______________________
▇▇▇▇▇▇▇ ▇▇▇▇, Secretary
ORCHARD SUPPLY HARDWARE STORES
CORPORATION (formerly, ORCHARD HOLDING
CORPORATION), a Delaware corporation
ATTEST: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Chief Financial Officer
By:_______________________
▇▇▇▇▇▇▇ ▇▇▇▇, Secretary
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Associate Director-Private
Placements
ATTEST: $12,806,300.00
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Principal Amount of Notes
By: /s/
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