EXECUTION COPY
$500,000,000
THE HOME DEPOT, INC.
6 1/2% SENIOR NOTES DUE 2004
PURCHASE AGREEMENT
September 21, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
INVEMED ASSOCIATES LLC
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Ladies and Gentlemen:
1. The Home Depot, Inc., a Delaware corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the initial purchasers named in Schedule A hereto (the "PURCHASERS") U.S.
$500,000,000 principal amount of its 6 1/2% Senior Notes due September 15, 2004
(the "OFFERED SECURITIES") to be issued under an indenture, dated as of
September 27, 1999 (the "INDENTURE"), between the Company and The Bank of New
York, as Trustee. The United States Securities Act of 1933 is herein referred to
as the "SECURITIES ACT."
The Company hereby agrees with the Purchasers as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the Purchasers that:
(a) A preliminary offering circular and an offering circular relating
to the Offered Securities have been prepared by the Company. Such preliminary
offering circular (the "PRELIMINARY OFFERING CIRCULAR") and offering circular
(the "OFFERING CIRCULAR"), as supplemented as of the date of this Agreement,
together with the documents listed in Schedule B hereto and any other document
approved by the Company for use in connection with the contemplated resale of
the Offered Securities are hereinafter collectively referred to as the "OFFERING
DOCUMENT." On the date of this Agreement, the Offering Document does not include
any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Offering Document based upon written
information furnished to the Company by any Purchaser through Credit Suisse
First Boston Corporation ("CSFBC") specifically for use therein, it being
understood and agreed that the only such information is that described as such
in Section 7(b) hereof. Except as disclosed in the Offering Document, on the
date of this Agreement, the Company's Annual Report on Form 10-K most recently
filed with the Securities and Exchange Commission (the "COMMISSION") and all
subsequent reports (collectively, the "EXCHANGE ACT REPORTS") that have been
filed by the Company with the Commission or sent to stockholders pursuant to the
Securities Exchange Act of 1934 (the "EXCHANGE ACT") do not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. Such documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act and the rules and regulations of the Commission thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware.
(c) The Indenture has been duly authorized by all necessary corporate
action on the part of the Company; the Offered Securities have been duly
authorized by all necessary corporate action on the part of the Company; and
when the Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below), the Indenture will have been
duly executed and delivered by the Company, such Offered Securities will have
been duly executed, authenticated, issued and delivered and such Offered
Securities will constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
(d) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any Purchaser for a
brokerage commission, finder's fee or other like payment.
(e) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court on the part of the Company is
required for the consummation of the transactions contemplated by this
Agreement, the Registration Rights Agreement dated the date hereof, between the
Company and
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the Purchasers (the "REGISTRATION RIGHTS AGREEMENT") in connection with the
issuance and sale of the Offered Securities by the Company except for the order
of the Commission declaring the Exchange Offer Registration Statement or the
Shelf Registration Statement (each as defined in the Registration Rights
Agreement) effective.
(f) The execution, delivery and performance of the Indenture, this
Agreement, and the Registration Rights Agreement, and the issuance and sale of
the Offered Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any law, statute, rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of their
properties, or any indenture, mortgage, deed of trust, bond debenture, note or
other evidence of indebtedness or any material lease, contract or other material
agreement to which the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is bound, or the charter or by-laws of the
Company or any such subsidiary, as currently in effect, and the Company has full
corporate power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(g) This Agreement and the Registration Rights Agreement have been duly
authorized, executed and delivered by the Company.
(h) Except as disclosed in the Offering Document, the Company and its
subsidiaries have good and marketable title to all real properties and all other
properties and assets owned by them, in each case free from liens, encumbrances
and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them and except as
disclosed in the Offering Document, the Company and its subsidiaries hold any
leased real or personal property under valid and enforceable leases with no
exceptions that would materially interfere with the use made or to be made
thereof by them, except for such liens, encumbrances, defects and exceptions as
would not have a material adverse effect on the Company and its subsidiaries
taken as a whole ("MATERIAL ADVERSE EFFECT").
(i) Except as disclosed in the Offering Document, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined adversely
to the Company or any of its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under the
Indenture, this
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Agreement, the Registration Rights Agreement, or which are otherwise material in
the context of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge, contemplated.
(j) Except as disclosed in the Offering Document, since the date of the
latest audited financial information included in the Offering Document there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Offering Document, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(k) No securities of the same class (within the meaning of Rule
144A(d)(3) under the Securities Act) as the Offered Securities are listed on any
national securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated inter-dealer quotation system.
(l) Assuming the accuracy of the representations and warranties
contained in Section 4 of the Agreement, the offer and sale of the Offered
Securities in the manner contemplated by this Agreement will be exempt from the
registration requirements of the Securities Act by reason of Section 4(2)
thereof and Regulation S thereunder and it is not necessary in connection with
the offer and sale of the Offered Securities to the Purchasers to qualify an
indenture in respect of the Offered Securities under the United States Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT").
(m) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has, within the six-month period prior to the
date hereof, offered or sold in the United States or to any U.S. person (as such
terms are defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered Securities (A) in the
United States by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act or (B)
with respect to any such securities sold in reliance on Rule 903 of Regulation S
("REGULATION S") under the Securities Act, by means of any directed selling
efforts within the meaning of Rule 902(c) of Regulation S. The Company, its
affiliates and any person acting on its or their behalf have complied and will
comply with the offering restrictions requirement of Regulation S. The Company
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for this Agreement and the
Registration Rights Agreement.
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3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and each of the Purchasers agrees, severally and not jointly, to
purchase from the Company at a purchase price of 99.332% of the principal amount
thereof, the respective principal amounts of Offered Securities set forth
opposite the names of the Purchasers in Schedule A hereto.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent Global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in federal (same day) funds by
official check or checks or wire transfer to an account previously designated by
the Company for such purpose at a bank reasonably acceptable to CSFBC at 9:30
A.M. (New York time), on September 27, 1999 or at such other time not later than
seven full business days thereafter as CSFBC and the Company determine, such
time being herein referred to as the "CLOSING DATE", against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Offered Securities. The Global Securities will be made available for checking at
the offices of Xxxxx Xxxx & Xxxxxxxx or its designated custodian at least 24
hours prior to the Closing Date.
4. REPRESENTATIONS BY PURCHASERS; RESALE BY PURCHASERS. (a) Each
Purchaser severally represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the Securities
Act.
(b) Each Purchaser severally acknowledges that the Offered Securities
have not been registered under the Securities Act and may not be offered or sold
within the United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to another exemption from the
registration requirements of the Securities Act. Each Purchaser severally
represents and agrees that it has offered and sold the Offered Securities, and
will offer and sell the Offered Securities only in accordance with Rule 903 or
Rule 144A under the Securities Act ("RULE 144A"). Accordingly, neither such
Purchaser nor its affiliates, nor any persons acting on its or their behalf,
have engaged or will engage in any directed selling efforts with respect to the
Offered Securities, and such Purchaser, its affiliates and all persons acting on
its or their
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behalf have complied and will comply with the offering restrictions requirement
of Regulation S and Rule 144A.
(c) Each Purchaser severally agrees that it and each of its affiliates
has not entered and will not enter into any contractual arrangement with respect
to the distribution of the Offered Securities except for any such arrangements
with the other Purchasers or affiliates of the other Purchasers or with the
prior written consent of the Company.
(d) Each Purchaser severally agrees that it and each of its affiliates
will not offer or sell the Offered Securities in the United States by means of
any form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act, or by means of a public offering within
the meaning of Section 4(2) of the Securities Act, including, but not limited to
(i) any advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising. Each Purchaser severally agrees, with
respect to resales made in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of such resale or otherwise
prior to settlement of such resale a notice to the effect that the resale of
such Offered Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees that (i) it
has not offered or sold and prior to the date six months after the date of issue
of the Offered Securities will not offer or sell any Offered Securities to
persons in the United Kingdom except to persons whose ordinary activities
involve them in acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer to the
public in the United Kingdom within the meaning of the Public Offers of
Securities Regulations 1995; (ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx 0000 with respect to
anything done by it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom; and (iii) it has only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it in
connection with the issue of the Offered Securities to a person who is of a kind
described in Article 11(3) of the Financial Services Xxx 0000 (Investment
Advertisements) (Exemptions) Order 1996 or is a person to whom such document may
otherwise lawfully be issued or passed on.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Purchasers that:
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(a) The Company will advise CSFBC promptly of any proposal to amend or
supplement the Offering Document and will not effect such amendment or
supplementation without CSFBC's consent, which consent shall not be unreasonably
withheld. If, at any time prior to the completion of the resale of the Offered
Securities by the Purchasers, any event occurs as a result of which the Offering
Document as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Company promptly will notify CSFBC of such event and
promptly will prepare, at its own expense, an amendment or supplement which will
correct such statement or omission. Neither CSFBC's consent to, nor the
Purchasers' delivery to offerees or investors of, any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(b) The Company will furnish to CSFBC copies of any preliminary
offering circular, the Offering Document and all amendments and supplements to
such documents, in each case as soon as available and in such quantities as
CSFBC reasonably requests. At any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act and any Offered Securities are
outstanding, upon request of holders and prospective purchasers of the Offered
Securities the Company will furnish or cause to be furnished, to such holders
and purchasers, copies of the information required to be delivered to holders
and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4)
under the Securities Act (or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by such holders of the
Offered Securities. The Company will pay the expenses of printing and
distributing to the Purchasers all such documents.
(c) The Company will endeavor in good faith in cooperation with the
Purchasers to arrange for the qualification of the Offered Securities for sale
and the determination of their eligibility for investment under the laws of such
jurisdictions in the United States and Canada as CSFBC designates and will
continue such qualifications in effect so long as required for the resale of the
Offered Securities by the Purchasers, provided that the Company will not be
required to qualify as a foreign corporation or to file a general consent to
service of process or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(d) During the period of ten years hereafter, the Company will furnish
to CSFBC and, upon request, to each of the other Purchasers, as soon as
practicable
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after the end of each fiscal year, a copy of its annual report to stockholders
for such year; and the Company will furnish to CSFBC and, upon request, to each
of the other Purchasers (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Exchange Act or mailed to stockholders and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date or, if
earlier, until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Company will,
upon request, furnish to CSFBC, each of the other Purchasers and any holder of
Offered Securities a copy of the restrictions on transfer applicable to the
Offered Securities.
(f) During the period of two years after the Closing Date or, if
earlier, until such time as the Offered Securities are no longer restricted
securities (as defined in Rule 144 under the Securities Act), the Company will
use its reasonable efforts to cause its affiliates (as defined in Rule 144 under
the Securities Act) not to resell any of the Offered Securities that have been
reacquired by any of them.
(g) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Indenture, and the Registration Rights
Agreement, including (i) the fees and expenses of the Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Offered Securities
and, as applicable, the Exchange Securities (as defined in the Registration
Rights Agreement), the preparation and printing of this Agreement, the
Registration Rights Agreement, the Offered Securities, the Indenture, the
Offering Document and amendments and supplements thereto, and any other document
relating to the issuance, offer, sale and delivery of the Offered Securities and
as applicable, the Exchange Securities; (iii) the cost of any advertising
approved by the Company in connection with the issue of the Offered Securities
(iv) for any expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Offered Securities or the Exchange
Securities for sale under the laws of such jurisdictions in the United States
and Canada as CSFBC designates and the printing of memoranda relating thereto,
(v) for any fees charged by investment rating agencies for the rating of the
Securities or the Exchange Securities, and (vi) for expenses incurred in
distributing preliminary offering circulars and the Offering Document (including
any amendments and supplements thereto) to the Purchasers. The Company will also
pay or reimburse the Purchasers (to the extent incurred by them) for all travel
expenses of the Company's officers and employees and any other expenses of the
Company in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
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(h) In connection with the offering, until CSFBC shall have notified
the Company and the other Purchasers of the completion of the resale of the
Offered Securities, neither the Company nor any of its affiliates has or will,
either alone or with one or more other persons, bid for or purchase for any
account in which it or any of its affiliates has a beneficial interest any
Offered Securities or attempt to induce any person to purchase any Offered
Securities; and neither it nor any of its affiliates will make bids or purchases
for the purpose of creating actual, or apparent, active trading in, or of
raising the price of, the Offered Securities.
(i) During the period beginning on the date hereof and continuing to
and including the Closing Date, the Company will not offer, sell, contract to
sell, pledge or otherwise dispose of, directly or indirectly, any United States
dollar-denominated debt securities issued or guaranteed by the Company and
having a maturity of more than one year from the date of issue. The Company will
not at any time offer, sell, contract to sell, pledge or otherwise dispose of,
directly or indirectly, any securities under circumstances where such offer,
sale, pledge, contract or disposition would cause the exemption afforded by
Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder
to cease to be applicable to the offer and sale of the Offered Securities.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASERS. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the date of this
Agreement, of KPMG LLP in agreed form confirming that they are independent
public accountants certified with respect to the Home Depot, Inc. under rule 101
of the AICPA's Code of Professional Conduct, and its interpretations and
rulings.
(i) in their opinion the consolidated financial statements
examined by them and incorporated by reference in the Offering Document
and in the Exchange Act Reports comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, on the unaudited consolidated
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financial statements incorporated by reference in the Offering Document
and in the Exchange Act Reports;
(iii) on the basis of the review referred to in clause (ii) above,
a reading of the latest available unaudited interim consolidated
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) the unaudited consolidated financial statements
incorporated by reference in the Offering Document or in the
Exchange Act Reports do not comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and Regulations or
any material modifications should be made to such unaudited
consolidated financial statements for them to be in conformity
with generally accepted accounting principles;
(B) the unaudited consolidated net sales, operating income,
net earnings and net earnings per share amounts for the six-month
periods ended August 1, 1999 and August 2, 1998 incorporated by
reference in the Offering Document do not agree with the amounts
set forth in the unaudited consolidated financial statements for
those same periods or were not determined on a basis substantially
consistent with that of the corresponding amounts in the audited
statements of earnings;
(C) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of this Agreement, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available unaudited
consolidated balance sheet read by such accountants, there was any
decrease in consolidated net current assets or net assets, as
compared with amounts shown on the latest unaudited consolidated
balance sheet incorporated by reference in the Offering Document;
(D) for the period from the closing date of the latest
unaudited consolidated statement of earnings incorporated by
reference in the Offering Document to the closing date of the
latest
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available unaudited consolidated statement of earnings read by
such accountants there were any decreases, as compared with the
corresponding period of the previous year, in operating income
consolidated net earnings or in the ratio of earnings to fixed
charges;
except in all cases set forth in clauses 6(a)(iii)(C) and
6(a)(iii)(D) above for changes, increases or decreases which the
Offering Document disclose have occurred or may occur or which are
described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Offering Document and the Exchange Act Reports (in
each case to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal controls of
the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) a change in U.S. or international financial,
political or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of CSFBC, be likely to prejudice materially the
success of the proposed issue, sale or distribution of the Offered Securities,
whether in the primary market or in respect of dealings in the secondary market,
or (ii) (A) any change, or any development or event involving a prospective
change, in the condition (financial or other), business, properties or results
of operations of the Company and its subsidiaries, taken as one enterprise,
which, in the judgment of a majority in interest of the Purchasers including
CSFBC, is material and adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of and payment for the
Offered Securities; (B) any downgrading in the rating of any debt securities of
the Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (C) any material suspension or material limitation
of trading in securities generally on the New
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York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on any
exchange or in the over-the-counter market; (D) any banking moratorium declared
by U.S. Federal or New York authorities; or (E) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of war
by Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the Purchasers
including CSFBC, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Offered Securities.
(c) The Purchasers shall have received an opinion, dated the Closing
Date, of King and Spalding, counsel for the Company, that:
(i) the Company is an existing corporation in good standing
under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described
in the Offering Document;
(ii) the Indenture has been duly authorized, executed and
delivered by the Company; the Offered Securities on the Closing Date
have been duly authorized, executed, authenticated, issued and
delivered and conform to the description thereof contained in the
Offering Document; and the Indenture and the Offered Securities
constitute valid and legally binding obligations of the Company
enforceable against the Company in accordance with their terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(iii) no consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required on the
part of the Company for the consummation of the transactions
contemplated by this Agreement, the Indenture or the Registration
Rights Agreement in connection with the issuance or sale of the Offered
Securities by the Company, except such as may be required under state
securities laws except for the order of the Commission declaring the
Exchange Offer Registration Statement or the Shelf Registration
Statement effective;
(iv) the execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement and the issuance
and sale of the Offered Securities and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the
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terms and provisions of, or constitute a default under, any statute,
rule, regulation or order of any governmental agency or body or any
court having jurisdiction over the Company or any subsidiary of the
Company or any of their properties, or the charter or by-laws of the
Company or any such subsidiary, as currently in effect, and the Company
has full corporate power and authority to authorize, issue and sell the
Offered Securities as contemplated by this Agreement;
(v) in addition, such counsel shall state that, in their
capacity as counsel for the Company, they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
and with representatives and counsel for the Purchasers at which the
contents of the Offering Document were discussed, and, although such
counsel is not passing on and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Offering Document, on the basis of the information that was
developed in the course of such counsel's performance of the services
referred to above, nothing has come to such counsel's attention that
causes such counsel to believe that the Offering Circular, or any
amendment or supplement thereto, or any Exchange Act Report as of the
date hereof and as of such Closing Date, contained any untrue statement
of a material fact or omitted to state any material fact necessary to
make the statements therein not misleading; the descriptions in the
Company's Form 10-K for the year ended January 31, 1999 under the
Caption "Item 3. Legal Proceedings"of statutes, legal and governmental
proceedings and contracts and other documents are accurate and fairly
present the information; it being understood that such counsel need
express no opinion or belief as to the financial statements or other
financial data contained in, incorporated by reference in, or omitted
from the Offering Circular and the Exchange Act Reports;
(vi) this Agreement and the Registration Rights Agreement have
each been duly authorized, executed and delivered by the Company;
(vii) assuming (A) the accuracy of the representations and
warranties of the Company set forth in Section 2 of this Agreement
(other than clauses (k), (l) and (m) thereof) and of the Purchasers set
forth in Section 4 of this Agreement, (B) the due performance by the
Company of the covenants and agreements set forth in Section 5 of this
Agreement and the due performance by the Purchasers of the covenants
set forth in Section 4 of this Agreement, (C) compliance by the
Purchasers with the offering and transfer procedures and restrictions
described in the Offering Document and (D) the accuracy of the
representations and warranties
13
made in accordance with the Offering Document by buyers to whom the
Purchasers initially resell the Offered Securities, it is not necessary
in connection with (A) the offer, sale and delivery of the Offered
Securities by the Company to the Purchasers pursuant to this Agreement
and the Offering Document or (B) the initial resales of the Offered
Securities by the Purchasers in the manner contemplated by this
Agreement and the Offering Document to register the Offered Securities
under the Securities Act or to qualify an indenture in respect thereof
under the Trust Indenture Act (it being understood that we express no
opinion in this paragraph as to any subsequent resale of any Offered
Securities).
In giving the opinions required by this subsection (c) of this Section
6, King & Spalding, (i) may limit such opinion to the laws of the State of
Georgia and New York and the corporate law of the State of Delaware and the
Federal laws of the United States, and (ii) may rely, as to matters of fact,
upon the representations and warranties of the Company contained herein and upon
certificates of officers of the Company and of public officials. The foregoing
opinions may also be subject to such assumptions and qualifications as are
satisfactory to counsel for the Purchasers.
(d) You shall have received an opinion, dated such Closing Date, of
Xxxxx X. Xxxxxxxxxx, Corporate Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated under the laws of the
State of Delaware;
(ii) such counsel does not know of any legal or governmental
proceedings required to be described in the Offering Document in which
are not described as required or of any contracts or documents of a
character required to be described in the Offering Document or to be
filed as exhibits to any document incorporated by reference in the
Offering Document which are not described and filed as required;
(iii) the documents incorporated by reference in the Offering
Document, when they were filed with the Commission, complied as to form
in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder;
(iv) the execution, delivery and performance by the Company of
the Indenture, this Agreement and the Registration Rights Agreement and
the issuance and sale of the Offered Securities and compliance with the
terms and provisions thereof will not result in a breach or violation
of any of the material terms and provisions of, or constitute a default
under any
14
indenture, mortgage, deed of trust, bond, debenture, note or other
evidence of indebtedness or any material lease, contract or other
agreement or instrument known to such counsel to which the Company or
any of its subsidiaries is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is bound.
In giving the opinions required by this subsection (d) of this Section
6, Xxxxx X. Xxxxxxxxxx (i) may limit such opinion to the laws of the State of
Georgia and the corporate law of the State of Delaware and the Federal laws of
the United States, and (ii) may rely, as to matters of fact, upon the
representations and warranties of the Company contained herein and upon
certificates of officers of the Company and of public officials. The foregoing
opinions may also be subject to such assumptions and qualifications as are
satisfactory to counsel for the Purchasers.
(e) The Purchasers shall have received from Xxxxx Xxxx & Xxxxxxxx,
counsel for the Purchasers, such opinion or opinions, dated Closing Date, with
respect to the validity of the Offered Securities, the Offering Document, the
exemption from registration for the offer and sale of the Offered Securities by
the Company to the several Purchasers and the resales by the several Purchasers
as contemplated hereby and other related matters as CSFBC may require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(f) The Purchasers shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of their
knowledge after reasonable investigation, shall state that the representations
and warranties of the Company in this Agreement are true and correct, that the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date, and
that, subsequent to the dates of the most recent financial statements in the
Exchange Act Reports there has been no material adverse change, nor any
development or event involving a prospective material adverse change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Offering Document or as described in such certificate.
(g) The Purchasers shall have received a letter, dated the Closing
Date, of KPMG LLP which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection will be a
date not more than three days prior to the Closing Date for the purposes of this
subsection.
15
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFBC may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Purchaser, its partners, directors and officers and each
person, if any, who controls such Purchaser within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such Purchaser may become subject, under the Securities Act or
the Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Offering Document, or any amendment or supplement thereto, or any related
preliminary offering circular, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, including any losses, claims, damages or liabilities
arising out of or based upon the Company's failure to perform its obligations
under Section 5(a) of this Agreement, and will reimburse each Purchaser for any
legal or other expenses reasonably incurred by such Purchaser in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Purchaser through CSFBC specifically for use therein, it being
understood and agreed that the only such information consists of the information
described as such in subsection (b) below and, PROVIDED, FURTHER, that with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from any preliminary offering circular the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any Purchaser
that sold Offered Securities to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale was an initial resale by
such Purchaser and any such loss, claim, damage or liability of such Purchaser
results from the fact that there were not or given to such person, at or prior
to the written confirmation of the sale such Offered Securities to such person,
a copy of the Offering Document (exclusive of any material included therein but
not attached thereto) if the Company had previously furnished copies thereof to
such Purchaser and the untrue statement or omission or alleged untrue statement
or omission was corrected in the Offering Memorandum.
16
(b) Each Purchaser will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities to which the Company may
become subject, under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering Document, or any
amendment or supplement thereto, or any related preliminary offering circular,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFBC specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of the following information in
the Offering Document: under the caption "Plan of Distribution": the information
in the table and the second, eighth and ninth paragraphs; PROVIDED, HOWEVER,
that the Purchasers shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company's failure to perform its
obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
17
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party which consent shall not be
unreasonably withheld, effect any settlement of any pending or threatened action
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action and does not
include a statement as to or an admission of fault, culpability or failure to
act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Purchasers other from the offering of the Offered Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Purchasers on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Purchasers on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
discounts and commissions received by the Purchasers from the Company under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Purchasers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Offered Securities purchased by it were
resold exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any
18
person who was not guilty of such fraudulent misrepresentation. The Purchasers'
obligations in this subsection (d) to contribute are several in proportion to
their respective purchase obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Purchaser within the meaning of the Securities Act or the Exchange Act; and the
obligations of the Purchasers under this Section shall be in addition to any
liability which the respective Purchasers may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act.
8. DEFAULT OF PURCHASERS. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of the Offered Securities, CSFBC may make arrangements
satisfactory to the Company for the purchase of such Offered Securities by other
persons, including any of the Purchasers, but if no such arrangements are made
by the Closing Date, the non-defaulting Purchasers shall be obligated severally,
in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of the
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total principal amount of the Offered Securities and arrangements
satisfactory to CSFBC and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Purchaser or the Company, except as provided in Section 9. As
used in this Agreement, the term "PURCHASER" includes any persons substituted
for a Purchaser under this Section 8. Nothing herein will relieve a defaulting
Purchaser from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Purchasers set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
any Purchaser, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the Purchasers
is not consummated, the Company shall remain responsible for the expenses to be
paid
19
or reimbursed by it pursuant to Section 5 and the respective obligations of the
Company and the Purchasers pursuant to Section 7 shall remain in effect. If the
purchase of the Offered Securities by the Purchasers is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 8 or the occurrence of any event specified in clause (C), (D) or (E)
of Section 6(b)(ii), the Company will reimburse the Purchasers for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telegraphed and confirmed to
the Purchasers, c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at 0000 Xxxxx Xxxxx Xxxx, XX, Xxxxxxx, XX 00000, Attention: Xxxxxx X.
Xxxxx, Executive Vice President and Chief Financial Officer, with a copy to
Xxxxx X. Xxxxxxxxxx, Corporate Counsel; provided, however, that any notice to a
Purchaser pursuant to Section 7 will be mailed, delivered or telegraphed and
confirmed to such Purchaser.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. REPRESENTATION OF PURCHASERS. CSFB will act for the Purchasers in
connection with this purchase, and any action under this Agreement taken by CSFB
will be binding upon all the Purchasers.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
20
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
21
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the several
Purchasers in accordance with its terms.
Very truly yours,
THE HOME DEPOT, INC.
By: /s/ Xxxxx X. Tome
-------------------------------
Name: Xxxxx X. Tome
Title: Vice President-Treasurer
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
INVEMED ASSOCIATES LLC
Acting on behalf of themselves
and as the Representative
of the Purchasers
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
22
SCHEDULE A
PRINCIPAL-AMOUNT
OF OFFERED SENIOR
INITIAL PURCHASER NOTES
-------------------------------------- -------------------
CREDIT SUISSE FIRST BOSTON CORPORATION $250,000,000
INVEMED ASSOCIATES LLC $250,000,000
------------
Total....................................... $500,000,00
------------
------------
23
SCHEDULE B
- Home Depot's Annual Report on Form 10-K for the fiscal year ended
January 31, 1999;
- Home Depot's Quarterly Report on Form 10-Q for the fiscal quarter
ended May 2, 1999; and
- Home Depot's Quarterly Report on Form 10-Q for the fiscal quarter
ended August 1, 1999
24
