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EXECUTION COPY
MASTER MODIFICATION AGREEMENT
THIS MASTER MODIFICATION AGREEMENT (this "Agreement") dated
as of April 20, 1998, by and among THE HOME DEPOT, INC., a Delaware
corporation, as Guarantor (the "Guarantor"); HOME DEPOT U.S.A., INC. a Delaware
corporation, as Lessee and Construction Agent ("Lessee" or "Construction
Agent"), HD REAL ESTATE FUNDING CORP., a Delaware corporation, as Facility
Lender ("Facility Lender"), CREDIT SUISSE LEASING 92A, L.P., a Delaware limited
partnership, as lessor ("Lessor"), the financial institutions listed on the
signature pages hereto (each, a "Lender" and collectively, the "Lenders") and
CREDIT SUISSE FIRST BOSTON, a Swiss bank operating through its New York branch,
as Agent Bank for the Lenders (in such capacity, the "Agent Bank");
W I T N E S S E T H:
WHEREAS, each of the parties described above have entered
into that certain Participation Agreement, dated as of June 25, 1996, as
amended by that certain First Amendment and Supplement to the Participation
Agreement, dated as of May 8, 1997 (as amended, the "Participation Agreement")
wherein the Lessor has agreed to acquire and construct certain facilities to be
leased to the Lessee, financed by certain debt provided by the Lenders,
together with certain equity contributions of the Lessor;
WHEREAS, the Lessee has requested, and each of the parties,
subject to the terms and conditions hereof, has agreed, to modify the terms of
the Participation Agreement and the other Operative Documents (as such term is
defined in the Participation Agreement) to allow the Lessee to lease to the
Lessor, pursuant to a long-term ground lease in substantial the form attached
as Exhibit A hereto (the "Ground Lease"), certain real property located in
Atlanta, Georgia, as more fully described on Exhibit A to the Ground Lease (the
"Land"), which Lessee desires to lease back from the Lessor in order to
construct an office building thereon for use by the Lessee;
WHEREAS, the parties hereto wish to enter into this Agreement
to evidence their consent to the Lessee's request and to set forth certain
modifications to the Operative Documents, all as more particularly set forth
below;
NOW, THEREFORE, for and in consideration of the mutual
premises contained herein and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
SECTION I. Definitions; Interpretation.
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Unless the context shall otherwise require, capitalized terms used and
not defined herein shall have the meanings assigned thereto in Appendix 1 to
the Participation Agreement and the rules of interpretation set forth in
Appendix 1 thereto shall apply to this Agreement.
SECTION II. Consent.
Notwithstanding any provision of the Operative Documents to the
contrary, each of the parties hereto hereby agrees (i) that the Lessee may
enter into a Ground Lease with the Lessor with respect to Land which shall
constitute a Property pursuant to the terms of the Operative Documents, (ii)
that Lessee may, subject to the terms of the Operative Documents, including
without limitation, Section 3.10 of the Participation Agreement, build a
Support Facility thereon and (iii) any provision of the Operative Documents not
expressly amended or modified by the terms of this Agreement shall be deemed
modified to the extent necessary to reflect that the Lessor is leasing the Land
under the Ground Lease and is not acquiring fee title to the Land.
SECTION III. Amendments.
A. Participation Agreement.
1. Amendments to Section 3.1 of the Participation
Agreement. Section 3.1 of the Participation Agreement is hereby
amended by deleting subsection (a) thereof in its entirety and by
substituting the following in lieu thereof:
"(a) purchase Land (through Advances funded by the Lessor
and the Facility Lender as provided herein) or enter
into the Ground Lease with Lessee with respect to
Land;"
2. Amendment to Section 3.5 of the Participation
Agreement. Section 3.5 of the Participation Agreement is hereby
amended by deleting the preamble and subsections (c) and (e) thereof
and substituting the following in lieu thereof:
"SECTION 3.5. Procedures for Acquisitions of Land.
With respect to each acquisition of Land or the entering into
of the Ground Lease, . . .
"(c) Upon satisfaction of the foregoing conditions
and receipt of the form of Deed or the Ground Lease, as
applicable, Lessor shall execute and deliver a limited power
of attorney to Lessee (or a representative thereof) in
recordable form and satisfactory to Lessor and Agent Bank
sufficient to allow Lessee, upon satisfaction of the
remaining conditions precedent set forth in Sections 7.1 and
7.2, to execute and record such documents necessary or
advisable in connection with the acquisition or lease, as
applicable, of such Land on the Property Closing Date;"
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and
"(e) Lessee shall give the Lessor, the Facility
Lender, and the Agent Bank an irrevocable prior written
notice not later than 1:00 p.m., New York time, on the
Business Day of the proposed Property Closing Date, pursuant,
in each case, to an Acquisition Request in the form of
Exhibit A attached hereto and made a part hereof by this
reference (an "Acquisition Request"), specifying with respect
to such Land: (i) the Property Closing Date, (ii) the Land to
be acquired or leased, (iii) the identity of the seller or
lessor and the Property Acquisition Cost (except in the case
of the Land subject to the Ground Lease), and (iv) the
Estimated Completion Date for such Property."
3. Amendment to Section 3.10 of the Participation
Agreement. Section 3.10 of the Participation Agreement is hereby
amended by deleting such Section in its entirety and substituting the
following in lieu thereof:
"SECTION 3.10. Use of Proceeds. The proceeds of all
Advances made pursuant to the Operative Documents shall be
used solely for the acquisition of Land located in the United
States or Canada (or the ground lease thereof) and the
construction of Improvements thereon pursuant to the
Construction Agency Agreement which shall be leased (upon
completion, in the case of Improvements constructed thereon
by the Construction Agent) by the Lessor to the Lessee
pursuant to the Lease, which Improvements shall be
constructed as a Facility on such Land; provided that the
total amount of Advances expended for the acquisition (or
ground lease) and construction of Properties to be used as
Support Facilities shall not exceed twenty percent (20%) of
the Total Commitments."
4. Amendment to Section 7.1 of the Participation
Agreement. Section 7.1 of the Participation Agreement is hereby amended
by deleting the preamble thereof and subsections (d) and (m) thereof
and substituting the following in lieu thereof:
"SECTION 7.1. Conditions Precedent -- Documentation.
The obligation of the Lessor to acquire a Property or to
enter into the Ground Lease with respect to a Property on a
Property Closing Date, to make the initial Advance in respect
of such Property on the initial Funding Date with respect to
such Property, and to make any related Lessor Investment
Amount available on such Funding Date, the right and
obligation of the Facility Lender to make any Loans to Lessor
on such Funding Date to fund such Advances and the obligation
of the Lenders to make Direct Funding Loans under the
Liquidity Agreement, are subject to satisfaction of the
following conditions precedent and to the conditions
precedent set forth in Section 7.2:"
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and
"(d) on or prior to the Property Closing Date for
the related Property, the Lessor shall have received (x) a
deed (a "Deed") (in form and substance appropriate for
recording with the applicable Governmental Authorities), with
respect to such Property (and all Improvements located
thereon) being purchased, on such Property Closing Date,
conveying fee simple title to such Property to the Lessor,
subject only to Permitted Exceptions or (y) in the case of
the Property subject to the Ground Lease, a copy of the
Ground Lease and a Memorandum thereof (in each case, in form
and substance satisfactory to the Lessor and the Agent and,
in the case of the Memorandum, in form and substance
satisfactory for recording), conveying leasehold title to the
such Property to the Lessor, in either case, subject only to
Permitted Exceptions;"
and
"(m) on or prior to the Property Closing Date for
the related Property, the Agent Bank shall have received
evidence satisfactory to it that each of the Deed (or in the
case of the Property subject to the Ground Lease, the
Memorandum thereof), the Memorandum of Lease, the Supplement
to the Assignment of Leases, the Consent to the Assignment,
the Mortgage, the Supplement to Master Assignment and the
consent to Master Assignment delivered on any Property
Closing Date shall have been or are being recorded with the
appropriate Governmental Authorities in the order in which
such documents are listed in this clause, and the UCC
Financing Statements with respect to the Property being
acquired or leased shall have been or are being filed with
the appropriate Governmental Authorities, and that all of the
recording fees, filing fees, transfer taxes and recording
taxes with respect to the foregoing have been paid; and"
5. Amendment to Section 9.3 of the Participation
Agreement. Section 9.3 of the Participation Agreement is hereby
amended by deleting subsections (b) and (c) thereof in their entirety
and substituting the following in lieu thereof:
"(b) Property. The Property then being acquired or,
in the case of the Property subject to the Ground Lease,
leased, consists of (i) Land on which Facilities will be
constructed pursuant to the Construction Agency Agreement,
and (ii) existing Improvements on such Land. Such Property is
located in the continental United States or Canada.
(c) Title. Upon (x) the acquisition by purchase of
such Property on such Property Closing Date, the Lessor will
have good and marketable title to such Property in fee simple
and (y) in the case of the Property subject to the Ground
Lease, upon leasing the Property pursuant to the Ground
Lease, the Lessor shall
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have good and marketable leasehold title to such Property, in
either case, subject only to Permitted Exceptions. The Lessor
will at all times have good and marketable title to all
Improvements located on such Property, subject only to
Permitted Liens."
B. Appendix I to Operative Documents. Appendix I to the
Operative Documents is hereby amended as follows:
(1) By adding the following definition of Ground Lease
in correct alphabetical order:
"Ground Lease" shall mean that certain Ground Lease,
dated as of April __, 1998, by and among Lessee, as ground
lessor, and Lessor, as ground lessee with respect to the
Property described therein."
(2) By deleting the definitions of "Operative
Documents", "Property" and "Property Closing Date" in their entirety
and substituting the following in lieu thereof:
"Operative Documents" means the following:
(a) the Issuing and Paying Agency Agreement;
(b) the Participation Agreement;
(c) the Loan Agreement;
(d) the Notes;
(e) the Lease and each Lease Supplement;
(f) the Assignment of Leases and each Supplement to the
Assignment of Lease;
(g) each Consent to Assignment;
(h) the Guaranty;
(i) the Mortgages;
(j) the Financing Statements;
(k) the Construction Agency Agreement and each Construction
Agency Agreement Supplement;
(l) the Construction Agency Agreement Assignment;
(m) the Consent to Construction Agency Agreement Assignment;
(n) the Funding Requests;
(o) the Acquisition Requests;
(p) the Liquidity Agreement;
(q) the Liquidity Notes;
(r) the Commercial Paper Notes;
(s) the Master Assignment and each Supplement to Master
Assignment;
(t) each Consent to Master Assignment;
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(u) the Construction Documents;
(v) the Security Agreement;
(w) each other Commercial Paper Document;
(x) the Ground Lease; and
(y) the Fee Letter.
"Property" means (i) as of the relevant Property
Closing Date, a parcel of Land (including all Appurtenant
Rights attached thereto) acquired, or the rights in a parcel
of land leased, by the Lessor pursuant to the provisions of
the Participation Agreement and all of the Improvements then
located on or under the related Land, and (ii) as of the
Completion Date, the Land and Improvements described in
clause (i) together with any Improvements constructed thereon
in accordance with the Construction Agency Agreement, or
thereafter constructed thereon.
"Property Closing Date" means each date on which the
Lessor purchases any Property or enters into the Ground Lease
with respect to any Property.
C. Lease.
The Lease is hereby amended as follows:
1. Amendments to Section 2.2 of the Lease. Section 2.2
of the Lease is hereby amended by deleting such Section in its
entirety and substituting the following in lieu thereof:
"2.2. Acceptance Procedure. Lessor hereby authorizes
one or more employees of Lessee, to be designated by Lessor
as the authorized representative or representatives of Lessor
(such designation to be evidenced by delivery of a power of
attorney pursuant to Section 3.5 of the Participation
Agreement) to accept delivery of the Deed to each Property to
be subject to the hereto on the Property Closing Date for
such Property (other than the Property subject to the Ground
Lease) and to execute such other agreements, easements and
other documents in connection therewith. Lessor and Lessee
hereby agree that such acceptance of delivery of such Deed
(other than the Property subject to the Ground Lease), and
the execution and delivery by Lessee on each Property Closing
Date for a Property to be subject hereto of a Lease
Supplement in the form of Exhibit A attached hereto and made
a part hereof by this reference (appropriately completed)
shall, without further act, constitute the irrevocable
acceptance by Lessee of that Property which is the subject
thereof for all purposes of this Lease and the other
Operative Documents on the terms set forth therein and
herein, and that such Property, together with any
Improvements then existing
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thereon shall be deemed to be included in the leasehold
estate of this Lease as of such Property Closing Date and any
Improvements constructed thereon pursuant to the Construction
Agency Agreement and this Lease shall be deemed to be
included in the leasehold estate of this Lease as of the
Completion Date at which time Lessee shall execute and
deliver to Lessor a Lease Supplement with respect to such
Improvements (appropriately completed)."
2. Amendments to Section 3.1 of the Lease. Section 3.1 of the
Lease is hereby amended by adding the following subsection after subsection
(c):
"(d) During the Term, Lessee shall pay to Lessor, as rent for
the sublease by Lessor to Lessee of its leasehold interest in the Land
under the Ground Lease, an amount equal to the amount payable by
Lessor to Lessee as ground rent under Section 3 of the Ground Lease.
The amount payable by the Lessee under this Section 3.1(d) shall be
due on each date on which ground rent is due from Lessor under Section
3 of the Ground Lease, and shall automatically be offset against the
amount due under such Section 3 of the Ground Lease on each date on
which such amount is due."
SECTION IV. Forms of Documents. Notwithstanding any provision of the
Operative Documents to the contrary, the parties hereto hereby agree that, with
respect to the Property subject to the Ground Lease, the forms of the following
Operative Documents attached hereto as the respective exhibits referenced below
shall be executed and delivered by the Lessee and the Participants in
satisfaction of the conditions of the Operative Documents:
Supplement to Master Assignment - Exhibit B
Supplement to Construction Agency Agreement - Exhibit C
Supplement to Assignment of Leases - Exhibit D
Special Power of Attorney - Exhibit E
Lease Supplement - Exhibit F
Lessee's Consent - Exhibit G
Mortgage - Exhibit H
Consent to Master Assignment - Exhibit I
Memorandum of Lease - Exhibit J
Ground Lease - Exhibit K
Memorandum of Ground Lease - Exhibit L
Acquisition Request - Exhibit M
Property Closing Certificate - Exhibit N
SECTION V. Conditions of Effectiveness. This Agreement shall become
effective as of the date first above written (the "Effective Date") when this
Agreement shall have been executed and delivered by each of the Guarantor, the
Lessee, the Facility Lender, the Lessor, the Agent Bank and the Requited
Lenders.
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SECTION VI. No Waiver, Etc. Lessee and Guarantor each hereby agrees
that nothing herein shall constitute a waiver by the Participants of any Lease
Default or Lease Event of Default, whether known or unknown, which may exist
under the Lease. Lessee and Guarantor each hereby further agrees that no
action, inaction or agreement by the Participants, including without
limitation, any indulgence, waiver, consent or agreement altering the
provisions of the Operative Documents which may have occurred with respect to
the non-payment of any obligation under the terms of the Operative Documents or
any portion thereof, or any other matter relating to the Operative Documents,
shall require or imply any future indulgence, waiver, or agreement by the
Participants.
SECTION VII. Ratification of Operative Documents. Except as expressly
amended herein, all terms, covenants and conditions of the Participation
Agreement and the other Operative Documents shall remain in full force and
effect, and the parties hereto do expressly ratify and confirm the Operative
Documents as amended herein. All future references to the Operative Documents
shall be deemed to refer to the Operative Documents as amended hereby.
SECTION VIII. Binding Nature. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, their respective heirs, successors,
successors-in-title, and assigns.
SECTION IX. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Georgia.
SECTION X. Entire Understanding. This Agreement sets forth the entire
understanding of the parties with respect to the matters set forth herein, and
shall supersede any prior negotiations or agreements, whether written or oral,
with respect thereto.
SECTION XI. Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts and
may be delivered by telecopier. Each counterpart so executed and delivered
shall be deemed an original and all of which taken together shall constitute
but one and the same instrument.
[Signatures Set Forth on Next Page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
through their authorized officers as of the date first above written.
HOME DEPOT U.S.A., INC.
By: /s/ Xxxxx X. Tome
----------------------------------------
Title: Vice President & Treasurer
Attest: /s/ Xxxxx Xxxxxx
------------------------------------
Assistant Secretary
THE HOME DEPOT, INC.
By: /s/ Xxxxxxxx Day
----------------------------------------
Title: Sr. Vice President &
Chief Financial Officer
Attest: /s/ Xxxxx X. Tome
------------------------------------
Vice President & Treasurer
HD REAL ESTATE FUNDING CORP.
By: /s/ Xxxxxxx X. Briton
----------------------------------------
Title: Vice President
Attest: /s/ Xxxxx X. Xxxxxx
------------------------------------
Title: Secretary
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CREDIT SUISSE LEASING 92A, L.P., A
DELAWARE LIMITED PARTNERSHIP
BY: CREDIT SUISSE FIRST BOSTON, ITS
GENERAL PARTNER
By: /s/ Xxxx Wheatherley-White
---------------------------------------
Title: Associate
By: /s/ Xxxxxxx O'Day
---------------------------------------
Title: Associate
CREDIT SUISSE FIRST BOSTON, AS AGENT BANK
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Title: Assistant Vice President
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CREDIT SUISSE FIRST BOSTON,
as Lender
By /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
DEUTCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLANDS BRANCH,
as Document Agent
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
NATIONSBANK, N.A. (SOUTH),
as Lender
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
By:
-----------------------------------
Name:
Title:
SUNTRUST BANK, ATLANTA,
as Lender
By: /s/ Xxxxxxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxxxxxx Xxxxxxx
Title: First Vice President
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By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.,
as Lender
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
UNION BANK OF SWITZERLAND,
as Lender
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
BANK OF AMERICA NT&SA,
as Lender
By: /s/ Xxxxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Managing Director
By:
-----------------------------------
Name:
Title:
00
XXX XXXX XX XXX XXXX,
as Lender
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
By:
-----------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By:
-----------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK OF
GEORGIA, as Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Vice President
XXXXXX GUARANTY TRUST CO. OF NEW
YORK, as Lender
By:/s/ Xxxx X. Xxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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By:
-----------------------------------
Name:
Title
WACHOVIA BANK OF GEORGIA,
as Lender
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
as Lender
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
CIBC Xxxxxxxxxxx Corp.
As AGENT
By:
-----------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Lender
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX,
as Lender
By: /s/ Xxxxxxx X. Zegreti
-----------------------------------
Name: Xxxxxxx X. Zegreti
Title: Senior Relationship Manager
By:
-----------------------------------
Name:
Title:
ABN AMRO BANK N.V.,
as Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
NORTHWEST BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Lender
By: /s/ Xxx X. Xxxxx
-----------------------------------
Name: Xxx X Xxxxx
Title: Vice President
By:
-----------------------------------
Name:
Title:
CRESTAR BANK,
as Lender
By:/s/ Xxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
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By:
-----------------------------------
Name:
Title:
BANKBOSTON, N.A.,
as Lender
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Director
By:
-----------------------------------
Name:
Title
