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EXHIBIT 10.70
THIS UNSECURED NOTE, AND PAYMENT AND ENFORCEMENT HEREOF, IS SUBJECT TO
THE TERMS AND PROVISIONS OF THAT CERTAIN SUBORDINATION AGREEMENT DATED
APRIL ______, 2001 BETWEEN THE FROST NATIONAL BANK, A NATIONAL BANKING
ASSOCIATION DOING BUSINESS AS FROST CAPITAL GROUP AND DELL XXXXXXXXX
AND ACKNOWLEDGED BY XXXXXXXXX INDUSTRIES, INC., XXXXXXXXX OPERATING
CORP., XXXXXXXXX HOLDING CORP., NBF, INC., C.G. PRODUCTS, INC., AND
XXXXXXXXX INDUSTRIES, L.P., AS SUCH SUBORDINATION AGREEMENT MAY BE
AMENDED FROM TIME TO TIME.
UNSECURED NOTE
DATE: __________________, 2001
MAKER: Xxxxxxxxx Industries, Inc.
MAKER'S MAILING ADDRESS
(INCLUDING COUNTY): 000 Xxxxxxxx Xxxxxxx
Xxxxxxx Xxxxxx, Xxxxx
Xxxxx Xxxxxxx, Xxxxx 00000
PAYEE: Dell Xxxxxxxxx
PLACE FOR PAYMENT (INCLUDING COUNTY): 000 Xxxxxxxxxx Xxxxx
Xxxxxxx Xxxxxx, Xxxxx
Xxxxxxxxxxx, Xxxxx 00000
PRINCIPAL AMOUNT: $100,000.00
ANNUAL INTEREST RATE ON UNPAID PRINCIPAL FROM DATE: $5,000 per calendar month,
pro-rated on a daily basis for partial months
TERMS OF PAYMENT (PRINCIPAL AND INTEREST): Interest is payable on or before the
first day of each month during the term of this note, with the first payment due
May 1, 2001. The principal amount of this note, and any unpaid interest thereon,
shall be paid in full on October 1, 2001; provided, however, the due date for
this note shall be accelerated in the event of a Change in Control of Maker. An
early prepayment of this note may be made without penalty.
A "Change in Control" means: (1) the acquisition of beneficial
ownership within the meaning of Rule 13d-3 under the Securities Exchange Act of
1934, as amended ("Beneficial Ownership"), of an aggregate of more than fifty
percent (50%) of the voting power of Maker's outstanding voting securities by
any person or group (as such term is used in Rule 13d-5 under such Act) whose
Beneficial Ownership is less than ten percent
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(10%) of the voting power of Maker's outstanding voting securities on the date
hereof; or (2) a sale or other disposition of substantially all of the assets of
Maker or substantially all of the operating assets of Xxxxxxxxx Industries L.P.
Maker promises to pay to the order of Payee at the place for payment
and according to the terms of payment the principal amount plus interest at the
rates stated above. All unpaid amounts shall be due by the final scheduled
payment date.
If Maker defaults in the payment of this note, and the default
continues after Payee gives Maker notice of the default and the time within
which it must be cured, as may be required by law or by written agreement, then
Payee may declare the unpaid principal balance and earned interest on this note
immediately due. Maker and each surety, endorser, and guarantor waive all
demands for payment, presentations for payment, notices of intention to
accelerate maturity, notices of acceleration of maturity, protests, and notices
of protest, to the extent permitted by law.
If this note is given to an attorney for collection, or if suit is
brought for collection, or if it is collected through probate, bankruptcy, or
other judicial proceeding, then Maker shall pay Payee all costs of collection,
including reasonable attorney's fees and court costs, in addition to other
amounts due.
Each Maker is responsible for all obligations represented by
this note.
Xxxxxxxxx Industries, Inc.
By:
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Xxxxx Xxxxxxxxx, CEO
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