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EXHIBIT 10.8
ADVANCING NOTE
$29,000,000.00 Houston, Texas June 5, 1998
On the dates hereinafter prescribed, for value received, EAGLE
GEOPHYSICAL, INC., a Delaware corporation, (herein called "Borrower"), having an
address at 00 Xxxxx Xxxxxx Xxxx, 0xx Xxxxx Xxxx, Xxxxxxx, Xxxxx 00000, promises
to pay to the order of BANK ONE, TEXAS, N.A. (herein called "Bank"), at its
principal offices at 000 Xxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000, (i) the
principal amount of TWENTY-NINE MILLION AND NO/100 DOLLARS ($29,000,000.00) or
the principal amount advanced pursuant to the terms of the Loan Agreement of
even date herewith between Borrower and Bank (the "Loan Agreement") as of the
date of maturity of this Note, whether by acceleration or otherwise, whichever
may be the lesser, and (ii) interest on the principal balance from time to time
advanced and remaining unpaid from the date of the advance until maturity at a
rate of interest equal to lesser of (a) the "Interest Rate" (as defined in the
Loan Agreement), or (b) the Maximum Rate (as hereinafter defined). Any increase
or decrease in interest rate resulting from a change in the Maximum Rate shall
be effective immediately when such change becomes effective, without notice to
Borrower, unless Applicable Law (as defined below) requires that such increase
or decrease not be effective until a later time, in which event such increase or
decrease shall be effective at the earliest time permitted under the provisions
of such law.
Notwithstanding the foregoing, if during any period the Interest
Rate exceeds the Maximum Rate, the rate of interest in effect on this Note shall
be limited to the Maximum Rate during each such period, but at all times
thereafter the rate of interest in effect on this Note shall be the Maximum Rate
until the total amount of interest accrued on this Note equals the total amount
of interest which would have accrued hereon if the Floating Rate had at all
times been in effect.
All payments on this Note shall be applied first to accrued interest
and the balance, if any, to principal.
This Note is an advancing credit note and it is contemplated that by
reason of prepayments hereon there may be times when no indebtedness is owing
hereunder; but notwithstanding such occurrence, this Note shall remain valid and
in full force and effect as to each principal advance made hereunder subsequent
to each such occurrence. Each principal advance and each payment hereof made
pursuant to this Note shall be reflected by Bank's records and the aggregate
unpaid amounts reflected by such records shall constitute rebuttably presumptive
evidence of the principal and unpaid, accrued interest remaining outstanding on
this Note.
"Maximum Rate" means the Maximum Rate of non-usurious interest
permitted from day to day by applicable law, including as to Article 5069-1.04,
Xxxxxx's Texas Revised Civil Statutes Annotated (and as the same may be
incorporated by reference in other Texas statutes), but otherwise without
limitation, that rate based upon the "indicated weekly rate ceiling."
"Applicable Law" means that law in effect from time to time and
applicable to this Note which lawfully permits the charging and collection of
the highest permissible lawful, non-usurious rate of interest on this Note,
including laws
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of the State of Texas and laws of the United States of America. It is intended
that Article 1.04, Title 79, Revised Civil Statutes of Texas, 1927, as amended
(Article 5069-1.04, as amended, Vernon's Texas Civil Statutes) shall be included
in the laws of the State of Texas in determining Applicable Law; and for the
purpose of applying said Article 1.04 to this Note, the interest ceiling
applicable to this Note under said Article 1.04 shall be the indicated weekly
rate ceiling from time to time in effect. Borrower and Bank hereby agree that
Chapter 15 of Subtitle 3, Title 79, Revised Civil Statutes of Texas, 1925, as
amended, shall not apply to this Note or the loan transaction evidenced by, and
referenced in, the Loan Agreement in any manner, including without limitation,
to any account or arrangement evidenced or created by, or provided for in, this
Note.
"Business Day" shall mean any day on which banks are open for
general banking business in the State of Texas, other than a Saturday, a Sunday,
a legal holiday or any other day on which banks in the State of Texas are
required or authorized by law or executive order to close.
The principal sum of this Note, after giving credit for unadvanced
principal, if any, remaining at final maturity, shall be due and payable on or
before the Maturity Date, as prescribed in the Loan Agreement defined below;
interest to accrue upon the principal sum from time to time owing and unpaid
hereunder shall be due and payable in monthly installments, as it accrues, with
the first such monthly installment of interest hereon being due and payable on
the first day of July 1998, and with such subsequent installments of interest
being due and payable on the first day of each succeeding month thereafter;
provided, however, the final installment of interest hereunder shall be due and
payable not later than the maturity of the principal sum hereof, howsoever such
maturity may be brought about.
When the first (1st) day of a calendar month falls upon a Saturday,
Sunday or legal holiday, the payment of interest and principal, if any, due upon
such date shall be due and payable upon the next succeeding Business Day.
In no event shall the aggregate of the interest on this Note, plus
any other amounts paid in connection with the loan evidenced by this Note which
would under Applicable Law be deemed "interest," ever exceed the maximum amount
of interest which, under Applicable Law, could be lawfully charged on this Note.
Bank and Borrower specifically intend and agree to limit contractually the
interest payable on this Note to not more than an amount determined at the
Maximum Rate. Therefore, none of the terms of this Note or any other instruments
pertaining to or securing this Note shall ever be construed to create a contract
to pay interest at a rate in excess of the Maximum Rate, and neither Borrower
nor any other party liable herefor shall ever be liable for interest in excess
of that determined at the Maximum Rate, and the provisions of this paragraph
shall control over all provisions of this Note or of any other instruments
pertaining to or securing this Note. If any amount of interest taken or received
by Bank shall be in excess of the maximum amount of interest which, under
Applicable Law, could lawfully have been collected on this Note, then the excess
shall be deemed to have been the result of a mathematical error by the parties
hereto and shall be refunded promptly to Borrower. All amounts paid or agreed to
be paid in connection with the indebtedness evidenced by this Note which would
under Applicable Law be deemed "Interest" shall, to the extent permitted by
Applicable Law, be amortized, prorated, allocated and spread throughout the full
term of this Note.
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This Advancing Note is the Note issued pursuant to the Loan
Agreement. Reference is hereby made to the Loan Agreement for a statement of the
rights and obligations of the holder of this Note and the duties and obligations
of Borrower in relation thereto; but neither this reference to the Loan
Agreement nor any provisions thereof shall affect or impair the absolute and
unconditional obligation of Borrower to pay any outstanding and unpaid principal
of and interest on this Note when due, in accordance with the terms of the Loan
Agreement. Each advance and each payment made pursuant to this Note shall be
reflected by notations made by Bank on its records and the aggregate unpaid
amounts reflected by the notations on the records of Bank shall be deemed
rebuttably presumptive evidence of the principal amount owing under this Note.
In the event of default in the payment when due of any of the
principal of or any interest on this Note, or in the event of default under the
terms of the Loan Agreement or any of the Loan Documents, or if any event occurs
or condition exists which authorizes the acceleration of the maturity of this
Note under any agreement made by Borrower, Bank (or other holder of this Note)
may, at its option, without presentment or demand or any notice to Borrower or
any other person liable herefor, declare the unpaid principal balance of and
accrued interest on this Note to be immediately due and payable.
If this Note is collected by suit or through the Probate or
Bankruptcy Court, or any judicial proceeding, or if this Note is not paid at
maturity, however such maturity may be brought about, and is placed in the hands
of an attorney for collection, then Borrower agrees to pay reasonable attorneys'
fees, not to exceed 10% of the full amount of principal and interest owing
hereon at the time this Note is placed in the hands of an attorney.
Xxxxxxxx and all sureties, endorsers and guarantors of this Note
waive demand, presentment for payment, notice of nonpayment, protest, notice of
protest, notice of intent to accelerate maturity, notice of acceleration of
maturity, and all other notices, filing of suit and diligence in collecting this
Note or enforcing any of the security herefor, and agree to any substitution,
exchange or release of any such security or the release of any party primarily
or secondarily liable hereon and further agrees that it will not be necessary
for Bank, in order to enforce payment of this Note by them, to first institute
suit or exhaust its remedies against any Borrower or others liable herefor, or
to enforce its rights against any security herefor, and consent to any one or
more extensions or postponements of time of payment of this Note on any terms or
any other indulgences with respect hereto, without notice thereof to any of
them. Bank may transfer this Note, and the rights and privileges of Bank under
this Note shall inure to the benefit of Bank's representatives, successors or
assigns.
Executed this 5th day of June 1998.
EAGLE GEOPHYSICAL, INC.
By: /s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx
Vice President
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