Promissory Note - Home Depot Inc. and Frank L. Fernandez
PROMISSORY NOTE
$500,000.00 June 18, 2001
FOR VALUE RECEIVED, Frank L. Fernandez (the "Borrower"), promises to
pay to The Home Depot, Inc., a Delaware corporation ("Lender"), or its
assignee, the principal sum of Five Hundred Thousand Dollars ($500,000.00) with
interest from the date hereof at a rate of five and eight tenths percent (5.8%)
per annum, compounded annually, on the unpaid balance of such principal sum.
The obligation to pay such interest shall be forgiven twenty five percent (25%)
on each of the first four anniversaries of the date hereof. All income taxable
to the Borrower as a result of any imputed or forgiven interest will be fully
grossed-up by the Lender for any applicable taxes. The principal of this Note
shall be repaid by the Borrower upon the earlier of (i) the fourth anniversary
of the date hereof or (ii) ninety (90) days following the termination of the
Borrower's employment by the Lender for Cause (as defined in that certain
Employment Agreement effective as of April 2, 2001 by and between the Borrower
and the Lender (the "Employment Agreement")) or by the Executive without Good
Reason (as defined in the Employment Agreement).
All payments by the Borrower under this Note shall be in immediately
available funds. This Note may be prepaid in whole or in part at any time or
from time to time. Any such prepayment shall be without premium or penalty.
If any amount due under this Note becomes due and payable on a
Saturday, Sunday, or public or other banking holiday under the laws of the
State of Georgia, the due date thereof shall be extended to the next succeeding
business day.
Upon the failure to pay principal under this Note when due, which
shall remain unremedied for twenty days following the date when principal was
due hereunder; then, the Lender may declare, by written notice of default given
to the Borrower, the entire principal amount of this Note to be due and
payable, whereupon if such default remains unremedied for five days after
borrower's receipt of such notice, the entire principal amount of this Note
outstanding shall become due and payable without presentment, demand, protest,
notice of dishonor and all other demands and notices of any kind.
Should suit be commenced to collect any sums due under this Note, such
sum as the Court may deem reasonable shall be added hereto as attorneys' fees.
No delay or failure by the Lender in the exercise of any right or
remedy shall constitute a waiver thereof, and no single or partial exercise by
the Lender of any right or remedy shall preclude other or future exercise
thereof or the exercise of any other right or remedy.
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None of the terms or provisions of this Note may be excluded, modified
or amended except by a written instrument duly executed on behalf of the holder
expressly referring to this Note and setting forth the provision so excluded,
modified, or amended.
As used herein, the Borrower includes the successors, assigns and
distributees of the undersigned.
As used herein, the Lender includes the successors, assigns and
distributees of the Lender, as well as a holder in due course of this Note.
THIS NOTE SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA (WITHOUT REGARD TO CONFLICT OF
LAWS PRINCIPLES).
/s/ Frank L. Fernandez
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Frank L. Fernandez