{"id":41202,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/participation-agreement-the-home-depot-inc-home-depot-usa4.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"participation-agreement-the-home-depot-inc-home-depot-usa4","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/participation-agreement-the-home-depot-inc-home-depot-usa4.html","title":{"rendered":"Participation Agreement &#8211; The Home Depot Inc., Home Depot USA Inc., HD Real Estate Funding Corp., Credit Suisse Leasing 92A LP and Credit Suisse First Boston"},"content":{"rendered":"<pre>\nFIRST AMENDMENT AND SUPPLEMENT TO THE PARTICIPATION AGREEMENT\n\n\n         FIRST AMENDMENT AND SUPPLEMENT TO THE PARTICIPATION AGREEMENT, dated\nas of May 8, 1997 (this 'Agreement'), among The Home Depot, Inc., as Guarantor\n(the 'Guarantor'), Home Depot U.S.A., Inc., as Lessee and Construction Agent\n(the 'Lessee'), HD Real Estate Funding Corp., as Facility Lender (the 'Facility\nLender'), the lenders named on Schedule I hereto, as Lenders (the 'Lenders'),\nCredit Suisse First Boston, formerly known as Credit Suisse, as Agent Bank and\nLender (the 'Agent Bank'), and Credit Suisse Leasing 92A L.P., as Lessor (the\n'Lessor').\n\n                              W I T N E S S E T H:\n\n         WHEREAS, the Guarantor, the Lessee, the Facility Lender, the lenders\nnamed therein, the Agent Bank and the Lessor are parties to the Participation\nAgreement dated as of June 25, 1996 (the 'Original Participation Agreement' and\nas amended hereby, the 'Participation Agreement'), among the Guarantor, the\nLessee, the Facility Lender, the Agent Bank, the Lessor and the lenders named\ntherein (the 'Existing Lenders');\n\n         WHEREAS, the Guarantor, the Lessee, the Facility Lender, the Existing\nLenders, the Agent Bank and the Lessor have agreed, subject to the terms and\nconditions contained herein, to amend and supplement the Original Participation\nAgreement and the lenders named on Schedule A hereto (the 'New Lenders') have\nagreed to become parties thereto and to be bound by the terms thereof:\n\n         NOW, THEREFORE, in consideration of the premises and the covenants and\nagreements contained herein, the parties hereto hereby agree as follows:\n\n         SECTION 1.        Definitions and Rules.\n\n         (a)      Capitalized terms used but not otherwise defined in this \nAmendment have the respective meanings specified in Appendix 1 of the Original\nParticipation Agreement and the rules of interpretation set forth in such\nAppendix 1 shall apply hereto.\n\n         (b)      Appendix 1 to the Original Participation Agreement is hereby\namended by amending and restating the following definitions in their entirety.\n\n         'Administrative Agent' shall mean Credit Suisse First Boston, as\n'Administrative Agent' pursuant to the Administration Agreement, and any\nsuccessor thereto.\n\n         'Agent Bank' means Credit Suisse First Boston, as 'Agent Bank' for the\nLenders pursuant to the Liquidity Agreement, or any successor or additional\nAgent Bank appointed in accordance with the terms of the Liquidity Agreement.\n\n\n\n\n\n\n         'Basic Term Expiration Date' shall mean May 8, 2002.\n\n         'Commercial Paper Notes' shall mean the Commercial Paper Notes issued\nby the Facility Lender pursuant to the Commercial Paper Documents in an\naggregate face amount not to exceed $582,000,000.\n\n         'Lessor's Commitment' means the commitment of Lessor to invest Lessor\nInvestment Amounts in the Properties in an aggregate amount not to exceed\n$18,000,000.\n\n         'Loan Termination Date' shall mean May 8, 2002, as such date may be\nextended from time to time pursuant to Section 2.5 of the loan Agreement.\n\n         'Maximum Property Costs' means the lesser of (x) $600,000,000 and (y)\nthe amount of the Total Commitments then in effect.\n\n         'Placement Agent' means Credit Suisse First Boston.\n\n         'Scheduled Commitment Termination Date' shall mean May 8, 2002.\n\n         'Scheduled Payment Date' means (a) as to any Lessor Basic Rent\nrelating to Lessor Investment Amounts having an Investment Period of three\nmonths or less, the last day of such Investment Period, and as to any Lessor\nInvestment Amount having an Investment Period longer than three (3) months,\neach day which is three (3) months, or a whole multiple thereof, after the\nfirst (1st) day of such Investment Period and the last day of such Investment\nPeriod, and (b) as to any Lender Basic Rent (x) the date of the maturity of any\nCommercial Paper Notes, and (y) the date on which any interest is due on any\nFacility Loans pursuant to the terms of the Liquidity Agreement.\n\n         (c)      Appendix 1 to the Original Participation Agreement is hereby\namended by adding the following definition.\n\n         'Basic Term' shall have the same meaning as 'Term.'\n\n         'Investment Period' has the meaning set forth in Appendix 3 to the \nParticipation Agreement.\n\n         SECTION 2.        (a)   Amendment to Appendix 3. Appendix 3 to the\nOriginal Participation Agreement is amended by deleting such Appendix in its\nentirety and substituting in lieu thereof Appendix 3 attached hereto.\n\n         (b)      Amendment to Exhibit N-1. Exhibit No-1 to the Original\nParticipation Agreement is amended by deleting such Exhibit in its entirety and\nsubstituting in lieu thereof Exhibit N-1 attached hereto.\n\n         (c)      Amendment to Exhibit N-2. Exhibit N-2 to the Original\nParticipation\n\n\n\n\n\nAgreement is amended by deleting such Exhibit in its entirety and substituting\nin lieu thereof Exhibit N-2 attached hereto.\n\n         (d)      Amendment to Exhibit N-3. Exhibit N-3 to the Original\nParticipation Agreement is amended by deleting such Exhibit in its entirety and\nsubstituting in lieu thereof Exhibit N-3 attached hereto.\n\n         SECTION 3. Additional Lenders. The New Lenders shall become parties to\nthe Participation Agreement as of the date hereof and shall be deemed 'Lenders'\nfor all purposes of the Participation Agreement and the other Operative\nDocuments and shall be subject to and shall benefit from all of the rights and\nobligations of a Lender under the Participation Agreement and the other\nOperative Documents. Each New Lender hereby agrees that it will perform its\nobligations as a Lender under the Participation Agreement as required by the\nterms thereof and hereby represents and warrants that the representations and\nwarranties of the Lenders contained in Section 9.6 of the Participation\nAgreement are true and correct on and as of the date hereof.\n\n         SECTION 4. Amendment to Schedule I. Schedule I to the Original\nParticipation Agreement is amended by deleting such Schedule in its entirety\nand substituting in lieu thereof Schedule I attached hereto.\n\n         SECTION 5. Amendment to Section 9.1\n\n         (a)      Amendment to Section 9.1(h). Section 9.1(h) of the Original\nParticipation Agreement shall be amended by deleting the address information\nfor the Lessor and replacing it with: 11 Madison Avenue, New York, NY 10010.\n\n         (b)      Amendment to Section 9.1(k). Section 9.1(k) of the Original\nParticipation Agreement is hereby amended by deleting such Section 9.1(k) in\nits entirety and substituting in lieu thereof the following:\n\n                  (k) General Partner.  Credit Suisse First Boston is the sole \n                      general partner of the Lessor.\n\n         SECTION 6. Amendment to Section 15.3. Section 15.3 of the Original\nParticipation Agreement shall be amended by deleting the address information\nfor the Lessor and the Agent Bank and replacing it with: 11 Madison Avenue,\n19th Floor, New York, New York 10010-3629.\n\n         SECTION 7. Amendment of Documents. Each of the parties hereto hereby\nconsents to the amendments executed as of the date hereof to the Lease, in the\nform of Exhibit Y hereto and to the Loan Agreement, in the form of Exhibit Z\nhereto and each other amendment referenced in Appendix 2 hereof.\n\n\n\n\n\n         SECTION 8. Section 15.5. Each of the parties hereto hereby agree that\nthe Original Participation Agreement has been amended and supplemented in\naccordance with Section 15.5 of the Original Participation Agreement and except\nas expressly amended hereby, that all of the terms and provisions of the\nOriginal Participation Agreement are in full force and effect.\n\n         SECTION 9. References in Operative Documents. Each of the parties\nhereto hereby agrees that each reference in the Operative Documents to the\nParticipation Agreement, the Lease, the Liquidity Agreement, the Notes and the\nLiquidity Notes means such documents as amended in connection herewith.\n\n         SECTION 10. Effectiveness. This Amendment shall become effective on\nthe date which all the conditions precedent set forth in Appendix A attached\nhereto and made a part hereof by this reference shall have been satisfied or\nwaived by the parties hereto as set forth therein.\n\n         SECTION 11. Counterparts. This Amendment may be executed in any number\nof counterparts by the parties hereto, each of which counterparts when so\nexecuted shall be an original, but all counterparts shall together constitute\none and the same instrument.\n\n         SECTION 12. Governing Law. THIS AMENDMENT SHALL IN ALL RESPECTS BE\nGOVERNED BY THE LAWS OF THE STATE OF GEORGIA (EXCLUDING ANY OTHER\nCONFLICT-OF-LAW OR CHOICE-OF-LAW RULES WHICH MIGHT LEAD TO THE APPLICATION OF\nTHE INTERNAL LAWS OF ANY OTHER JURISDICTION) AS TO ALL MATTERS OF CONSTRUCTION,\nVALIDITY AND PERFORMANCE.\n\n         SECTION 13. Successors and Assigns. All the terms and provisions of\nthis Amendment shall inure to the benefit of, and be binding upon, the parties\nhereto and their respective successors and permitted assigns.\n\n\n\n\n\n         IN WITNESS WHEREOF, the parties hereto have caused this Amendment to\nbe duly executed by their respective officers thereunto duly authorized as of\nthe day and year first above written.\n\n                                THE HOME DEPOT, INC., as Guarantor\n\n\n                                By: \/s\/Marshall L. Day              \n                                    ---------------------------------------\n                                    Name:  Marshall L. Day \n                                    Title: Senior Vice President\/Chief Financial\n                                           Officer\n\n                                Attest: \/s\/ Carol B. Tome           \n                                        -----------------------------------\n                                    Name:  Carol B. Tome\n                                    Title: Vice President\/Treasurer\n\n\n\n                                            [Corporate Seal]\n\n\n                                HOME DEPOT U.S.A., INC., as Lessee and      \n                                Construction Agent\n\n                                By: \/s\/ Carol B. Tome                       \n                                    ---------------------------------------\n                                    Name: Carol B. Tome\n                                    Title: Vice President\/Treasurer\n\n                                Attest: \/s\/Sheryl M. Mouso                 \n                                        -----------------------------------\n                                   Name:  Sheryl M. Mouso\n                                   Title: Assistant Secretary\n\n\n\n                                            [Corporate Seal]\n\n\n                                HD REAL ESTATE FUNDING CORPORATION\n                                as Facility Lender\n\n\n                                By: \/s\/ Tiffany Percival            \n                                    ---------------------------------------\n                                    Name:  Tiffany Percival\n                                    Title:     Vice President\n\n\n\n\n\n                                CREDIT SUISSE LEASING 92A, L.P., as Lessor\n\n\n                                By: CREDIT SUISSE FIRST BOSTON, its general    \n                                partner\n\n                                By: \/s\/ Carl Weatherley-White       \n                                    ----------------------------------\n                                    Name:  Carl Weatherley-White\n                                    Title:  Associate\n\n\n                                By: \/s\/    \n                                    ----------------------------------\n                                    Name:\n                                    Title:\n\n\n                                CREDIT SUISSE FIRST BOSTON, formerly        \n                                known as credit Suisse, as Agent Bank\n\n                                By: \/s\/ Heather Riekenberg          \n                                    ----------------------------------\n                                    Name:   Heather Riekenberg\n                                    Title: Vice President\n\n                                By:  \/s\/ Ira Lubinsky                       \n                                    ----------------------------------\n                                    Name:  Ira Lubinsky\n                                    Title: Associate\n\n\n                                CREDIT SUISSE FIRST BOSTON, formerly\n                                known as Credit Suisse, as Lender\n\n\n                                By: \/s\/ Carl Weatherley-White       \n                                    ----------------------------------\n                                    Name:  Carl Weatherley-White\n                                    Title: Associate\n\n\n                                By: \/s\/   \n                                    ----------------------------------\n                                    Name:\n                                    Title:\n\n\n\n\n\n                                DEUTSCHE BANK AG, NEW YORK AND\/OR   \n                                CAYMAN ISLANDS BRANCH \n                                as Documentation Agent\n\n\n                                By: \/s\/ Joel Makowsky               \n                                    -----------------------------------\n                                    Name:  Joel Makowsky\n                                    Title: Assistant Vice President\n\n\n                                By: \/s\/ Elizabeth Hope Tallmadge   \n                                    -----------------------------------\n                                    Name:  Elizabeth Hope Tallmadge\n                                    Title: Director\n\n\n                                NATIONSBANK, N.A. (SOUTH)\n                                as Lender\n\n\n                                By: \/s\/ Shawn B. Welch              \n                                    -----------------------------------\n                                    Name:  Shawn B. Welch\n                                    Title: Vice President\n\n\n                                By:                                 \n                                    -----------------------------------\n                                    Name:\n                                    Title:\n\n                                SUNTRUST BANK, ATLANTA,\n                                as Lender\n\n                                By: \/s\/ Christopher Deisley \n                                    -----------------------------------\n                                    Name:  Christopher Deisley\n                                    Title: First Vice President\n\n                                By: \/s\/ Jeffrey L. Seavey           \n                                    -----------------------------------\n                                    Name:  Jeffrey L. Seavey\n                                    Title: Vice President\n\n\n\n\n                                TORONTO DOMINION (TEXAS), INC.,\n                                as Lender\n\n\n                                By: \/s\/ Darlene Riedel                      \n                                    -----------------------------------\n                                    Name:  Darlene Riedel\n                                    Title: Vice President\n\n\n                                UNION BANK OF SWITZERLAND,\n                                as Lender\n\n                                By: \/s\/ Daniel R. Strickford                \n                                    -----------------------------------\n                                    Name:  Daniel R. Strickford\n                                    Title: Assistant Vice President\n\n\n                                By: \/s\/ Samuel Azizo                        \n                                    -----------------------------------\n                                    Name:  Samuel Azizo\n                                    Title: Vice President\n\n\n                                BANK OF AMERICA NT&amp;SA,\n                                as Lender\n\n                                By: \/s\/ Robert A. Kilgannon                 \n                                    -----------------------------------\n                                    Name:   Robert A. Kilgannon\n                                    Title:  Senior Vice President\n\n\n                                THE BANK OF NEW YORK,\n                                as Lender\n\n                                By: \/s\/ Michael Flannery\n                                    -----------------------------------\n                                    Name:  Michael Flannery\n                                    Title: Vice President\n\n\n                                THE FIRST NATIONAL BANK OF CHICAGO,\n                                as Lender\n\n                                By: \/s\/ Dianne M. Stark\n                                    -----------------------------------\n                                    Name:  Dianne M. Stark\n                                    Title: Vice President\n\n\n\n\n\n                                FIRST UNION NATIONAL BANK OF GEORGIA\n                                as Lender\n\n                                By: \/s\/ Shelley N. Rogers           \n                                    -----------------------------------\n                                    Name:  Shelley N. Rogers\n                                    Title: Assistant Secretary\n\n\n                                MORGAN GUARANTY TRUST CO. OF NEW YORK,\n                                as Lender\n\n                                By: \/s\/ John M. Mikolay         \n                                    -----------------------------------\n                                    Name:  John M .Mikolay\n                                    Title: Vice President\n\n\n                                WACHOVIA BANK OF GEORGIA,\n                                as Lender\n\n                                By: \/s\/ John T. Seeds                      \n                                    -----------------------------------\n                                    Name:  John T .Seeds\n                                    Title: Senior Vice President\n\n\n\n                                CANADIAN IMPERIAL BANK OF COMMERCE,\n                                as Lender\n\n                                By: \/s\/ Richard W. Crannell, Jr.    \n                                    -----------------------------------\n                                    Name:  Richard W. Crannell, Jr.\n                                    Title: As Agent\n\n\n\n                                THE CHASE MANHATTAN BANK,\n                                as Lender\n\n\n                                By: \/s\/ Ellen Geitnor                       \n                                    -----------------------------------\n                                    Name:  Ellen Geitnor\n                                    Title: Vice President\n\n\n\n\n\n                                THE BANK OF NOVA SCOTIA,\n                                as Lender\n\n\n                                By: \/s\/ William E. Zarrett\n                                    -----------------------------------\n                                    Name:   William E. Zarrett\n                                    Title:  Senior Relationship Manager\n\n  \n                                ABN AMRO BANK N.V.,\n                                as Lender\n\n                                By: \/s\/ Steven L. Hipsman           \n                                    -----------------------------------\n                                    Name:   Steven L. Hipsman\n                                    Title:  Vice President\n\n                                By:  \/s\/ Larry Kelley                       \n                                    -----------------------------------\n                                    Name:   Larry Kelley\n                                    Title:  Group Vice President\n\n\n                                NORWEST BANK MINNESOTA, NATIONAL    \n                                ASSOCIATION, as Lender\n\n\n                                By: \/s\/ Ann C. Pifer                        \n                                    -----------------------------------\n                                    Name:   Ann C. Pifer\n                                    Title:  Vice President\n\n\n                                CRESTAR BANK,\n                                as Lender\n\n\n                                By: \/s\/ Keith A. Hubbard           \n                                    -----------------------------------\n                                    Name:   Keith A. Hubbard\n                                    Title:  Senior Vice President\n\n\n\n\n\n\n                                BANK BOSTON, N.A.,\n                                as Lender\n\n\n                                By: \/s\/ Peter L. Griswold          \n                                    -----------------------------------\n                                    Name:   Peter L. Griswold\n                                    Title:  Director\n\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7234,7786],"corporate_contracts_industries":[9493,9418],"corporate_contracts_types":[9560,9567],"class_list":["post-41202","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-credit-suisse-first-boston-inc","corporate_contracts_companies-home-depot-inc","corporate_contracts_industries-retail__building","corporate_contracts_industries-financial__securities","corporate_contracts_types-finance","corporate_contracts_types-finance__loan"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/41202","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=41202"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41202"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41202"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41202"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}