EXHIBIT 10.34
Non-Negotiable
PROMISSORY NOTE
$3,733,000.00 Fort Worth, Texas _________________, 1996
FOR VALUE RECEIVED, the undersigned, KEVCO TEXAS, INC., a Texas
corporation ("Maker"), promises to pay to the order of the persons identified on
EXHIBIT "A" attached hereto (collectively "Payees"), at the addresses of Payees
set forth on EXHIBIT "A", the principal sum shown opposite the name of each of
the Payees on EXHIBIT "A" hereto [or an aggregate principal sum of THREE MILLION
SEVEN HUNDRED THIRTY-THREE THOUSAND AND NO/100 DOLLARS ($3,733,000.00)],
together with interest thereon on the unpaid principal balance from date until
maturity at a simple rate of interest per annum equal to the lesser of (i) ____
percent (___%) or (ii) the Maximum Rate. All past due principal and interest
shall bear interest at the Maximum Rate. As used herein, the term "Maximum
Rate" shall mean, on any day, the highest lawful non-usurious rate of interest
(if any) permitted by applicable law, whether state or federal, on such day,
including the rate permitted by Vernon's Texas Code Xxx. Art. 5069=1.04, but in
no event to exceed 18%.
If at any time and from time to time the rate of interest calculated
pursuant to subparagraph (i) above would exceed the Maximum Rate, thereby
causing the interest payable on this Note to be limited to the Maximum Rate as
provided in subparagraph (ii) above, then any subsequent reduction in the rate
specified in subparagraph (i) shall not reduce the rate of interest payable on
this note from and after the date of this Note equals the amount of interest
which would have accrued thereon if the applicable rate specified in
subparagraph (i) above had at all times been in effect.
Payments of both principal and interest hereon shall be made to Payees as
herein provided in lawful money of the United States of America, in immediately
available funds in Fort Worth, Texas. Interest shall be computed on the basis
of a year consisting of 365 days or, if appropriate, 366 days.
This Note, both principal and interest, shall be due and payable on the
first business day immediately following the consummation of an initial public
offering by
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Kevco, Inc., a Texas corporation, of shares of its $.01 par value
common stock. Any interest payable on this Note shall be calculated on the
unpaid principal balance to the date of any payment of principal and any
payments made shall be credited first to the discharge of the interest accrued
and the balance to the reduction of principal.
No part of this Note, whether principal or interest, may be prepaid prior
to its due date as set forth herein.
Time is of the essence. Therefore, in the event of default in the timely
and punctual payment of any installment hereof as provided herein, neither
Payees nor any other holders of the Note shall be obligated to accept any
installment called for by this Note, whether principal or interest. Late
payment of any installment, whether principal or interest, shall constitute
default in Maker's obligations hereunder. Upon default in the punctual payment
when due of this Note, whether principal or interest, Payees or any other
holders of this Note may in such event at their option declare the entire unpaid
balance of principal and interest owing hereon at once matured and due and
payable in full and any holder of this Note may in such event exercise any and
all rights, remedies or privileges possessed by such holder, whether under the
terms hereof or at law or in equity.
If default be made in the payment of this Note or any part thereof, whether
principal or interest, and this Note is placed in the hands of an attorney or
attorneys for collection, for enforcement or for any other purposes or is
collected or enforced through bankruptcy proceedings (including any proceedings,
federal or state, for the relief of debtors), or through any other court
proceedings, whether before or after maturity, Maker agrees to pay to the holder
or holders hereof reasonable attorneys' fees.
Maker and any present or future sureties, guarantors and endorsers of this
Note and any other parties hereto severally waive the order of their liability,
the marshalling of assets, demands, presentment for payment, notice of
dishonor, protest, notice of protest and diligence in collecting this Note and
each, every and all installments hereof or bringing suit against any parties
hereto. In case of renewal or extension of this note or any part hereof, any
and all collateral or liens given to the Payees or other holders hereof at any
time will remain in full force and effect to secure the payment of the renewal
or extension Note.
PROMISSORY NOTE: Kevco Texas, Inc.
101888.5/80851.07F (10-4-96 12:43 am) - Page 2
No provisions of this Note shall require the payment or permit the
collection of interest in excess of the Maximum Rate. If any excess of
interest in such respect is herein provided for or shall be adjudicated to be so
provided for herein the provisions of this paragraph shall govern and neither
Maker nor any of its successors, assigns or legal representative shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the amount permitted by law. If an excess amount should be collected it
shall be construed as a mutual mistake of the parties and the excess shall be
credited to principal. However, if all amounts due under this Note have been
paid, Maker and all of its successors, assigns or legal representatives shall be
entitled to a refund of the excess amount collected hereunder.
This Note and all payments and obligations hereof are fully performable in
Tarrant County, Texas where suit shall be brought hereon to enforce any of the
obligations created hereunder or to collect any amounts due hereunder and where
venue shall lie.
This Note is unsecured.
This Note is not negotiable and may not be assigned, sold, transferred,
hypothecated or otherwise disposed of, in whole or in part, by Payees.
MAKER:
KEVCO TEXAS, INC.
By:
-----------------------------
Its: Chairman of the Board
and President
PROMISSORY NOTE: Kevco Texas, Inc.
101888.5/80851.07F (10-4-96 12:43 am) - Page 3
EXHIBIT "A"
to Promissory Note
Name and Address of Payee Principal Amount
------------------------- ----------------
Xxxxxx X. Xxxxxx
1300 So. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000 $ 3,193,308.20
Xxxxxxxxx Xxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
P.O. Box 79170*
Fort Worth, Texas 76179 $ 175,824.30
Xxx Xxxxxxxx Xxxxxxx
000 Xxxxxxxxx
Xxxxx, Xxxxx 00000 $ 175,824.30
Xxxxxxx Xxxxxx Xxxxxx
1300 So. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000 $ 175,824.30
Xxxxx X. Xxxx, Xx.
1300 So. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000 $ 8,212.60
Xxxxx X. Xxxxxx
0000 X. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000 $ 4,106.30
*use this address for all mail
PROMISSORY NOTE: Kevco Texas, Inc.
101888.5/80851.07F (10-4-96 12:43 am) - Page 4
