Exhibit 10.35
Non-Negotiable
PROMISSORY NOTE
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," and in the percentage set forth opposite the respective names of
Payees on EXHIBIT "A" hereto, an aggregate amount equal to Maker's net income
for the period July 1, 1996 through the day immediately preceding the day on
which an initial public offering of the $.01 par value common stock of Kevco,
Inc., a Texas corporation, is consummated, net of cash distributions declared
and paid during such period, 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
Xxxxxx'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 below the Maximum Rate until the total amount of interest accrued 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.
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This Note, both principal and interest, shall be due and payable on or
before Decemer 31, 1996. 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.
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.
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
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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 is unsecured.
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 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
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EXHIBIT "A"
to Promissory Note
(No. 80851)
Name and Address of Payee Percentage Amount
------------------------- -----------------
Xxxxxx X. Xxxxxx
1300 So. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000 85.54%
Xxxxxxxxx Xxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
P.O. Box 79170 *
Fort Worth, Texas 76179 4.71%
Xxx Xxxxxxxx Xxxxxxx
000 Xxxxxxxxx
Xxxxx, Xxxxx 00000 4.71%
Xxxxxxx Xxxxxx Xxxxxx
1300 So. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000 4.71%
Xxxxx X. Xxxx, Xx.
1300 So. Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxx 00000 .22%
Xxxxx X. Xxxxxx
0000 X. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000 .11%
*use this address for all mail
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