$170,000 December 29, 2000
FOR VALUE RECEIVED, the undersigned Mark Baker (hereinafter referred to
as "Maker"), promises to pay to the order of HOME DEPOT U.S.A., INC.
(hereinafter referred to as "Payee") the principal sum of ONE HUNDRED SEVENTY
THOUSAND DOLLARS ($170,000), such amount to be due and payable on or before the
six month anniversary of the date hereof, upon the terms and conditions set
The outstanding principal amount of this promissory note (the "Note"),
shall be payable in immediately available funds when due. Such payment shall be
delivered on the date due to Payee at 2455 Paces Ferry Road, N.W., Atlanta, GA
30339, Attention: Treasurer, or at such other place as the holder hereof may
from time to time designate in writing. This Note may be prepaid in whole or in
part at any time without the prior written consent of Payee and without penalty
The following events shall constitute an event of default hereunder:
(a) if any amounts due hereunder are not paid as and when due, or (b) if any
bankruptcy, reorganization, debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any liquidation proceeding is commenced by
Maker and is not dismissed for thirty days, or (c) if a receiver is appointed
for any part of the property or assets of Maker.
Upon the occurrence of an event of default, any and all of the
liabilities of Maker pursuant hereto may, at the option of Payee and without
demand or notice of any kind, be declared and thereupon immediately shall become
due and payable, and Payee may exercise any rights available to it by operation
of law. Upon default, Payee has the right to assess interest at the rate of
prime plus 2%, calculated from the date of default.
Failure on the part of Payee to insist on the strict performance of any
or all of the terms, provisions, and covenants contained in this Note shall not
be construed as a waiver or relinquishment of any term, provisions or covenants
Time is of the essence of this Note.
Presentment for payment, demand, protest, and notice of demand, protest
and non-payment, and all other notices are hereby waived by Maker. No extension
of the time for the payment of this Note, made by agreement with any person now
or hereafter liable for the payment of this Note, shall operate to release,
discharge, modify, change or affect the original liability of Maker under this
Note, either in whole or in part unless Payee agrees otherwise in writing. This
Note may not be changed orally. This Note can only be changed by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
If any provisions of this Note or the application thereof to any person
or circumstance shall be invalid or unenforceable to any extent, the remainder
of this Note and the application of such provisions to other persons or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
This Note is intended as a contract under, and shall be construed and
enforceable in accordance with, the laws of the State of Georgia.
As used herein, the terms "Maker" and "Payee" shall be deemed to
include each party's respective heirs, successors, legal representatives,
subsidiaries, parent companies, affiliates, and assigns, whether by voluntary
action of the parties or by operation of law.
IN WITNESS WHEREOF, Maker and Payee have executed this Note under seal
effective as of the date first above written.
/s/ Mark Baker
HOME DEPOT U.S.A., INC.
By: /s/ Carol B. Tome
Name: Carol B. Tome
Title: Sr. Vice President - Finance and