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EXHIBIT 10.1b
TERM NOTE
$6,000,000.00 October 25, 1996
FOR VALUE RECEIVED, NDE ENVIRONMENTAL CORPORATION, a Delaware
corporation, TANKNOLOGY/NDE CORPORATION, a Delaware corporation, PROECO, INC.,
a Delaware corporation, and TANKNOLOGY CANADA (1988) INC., a Canadian federal
corporation, all of the foregoing having an address at 0000 Xxxxx Xxxxx Xxxx.
000, Xxxxxx, Xxxxx 00000, and USTMAN INDUSTRIES, INC., a Delaware corporation,
having an address at 00000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000
(collectively, "Borrower") unconditionally promise to pay to the order of BANK
ONE, TEXAS, NATIONAL ASSOCIATION, (herein called "Bank"), at its offices at 000
Xxxxxx, Xxxxxxx, Xxxxx 00000, the principal sum of SIX MILLION DOLLARS
($6,000,000.00).
The undersigned also promise to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Loan Agreement; provided,
however, that in no event shall such interest exceed the Maximum Rate (as
hereinafter defined).
"Maximum Rate" means the Maximum Rate of non-usurious interest permitted
from day to day by Applicable Law.
"Applicable Law" means that law in effect from time to time and
applicable to this Term Note which lawfully permits the charging and collection
of the highest permissible lawful, non-usurious rate of interest on this Term
Note, including laws 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. The Borrower
and the Bank hereby agree that Chapter 15 of Subtitle 3, Title 79, Revised
Civil Statutes of Texas, 1925, as amended, shall
/s/ JAC
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Borrower's Officer's Initials
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not apply to this Term Note or the loan transaction evidenced by, and
referenced in, the Loan Agreement (herein defined) in any manner, including
without limitation, to any account or arrangement evidenced or created by, or
provided for in, this Term Note.
In no event shall the aggregate of the interest on this Term Note, plus
any other amounts paid in connection with the loan evidenced by this Term 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 Term Note. The Bank and the Borrower specifically intend and agree to
limit contractually the interest payable on this Term Note to not more than an
amount determined at the Maximum Rate. Therefore, none of the terms of this
Term 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 the 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 Term Note or of any other instruments pertaining to or securing this Term
Note. If any amount of interest taken or received by the 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 the 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 Term Note.
This Note is the Term Note referred to in and is entitled to the
benefits of a certain Loan Agreement, dated as of October 25, 1996 (as the same
may be amended, modified, supplemented, extended, rearranged and/or restated
from time to time, the "Loan Agreement"), entered into by and among NDE
Environmental Corporation, et al., as Borrower, and Bank One, Texas, National
Association and secured by the Collateral Documents (as such term is defined in
the Loan Agreement). Reference is hereby made to the Loan Agreement for a
statement of the prepayment rights and penalties and obligations of the
Borrower, a description of the
/s/ JAC
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Xxxxxxxx's Officer's Initials
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properties and assets mortgaged, encumbered and assigned, the nature and extent
of the security and the rights of the parties to the Collateral Documents in
respect of such security, and for a statement of the terms and conditions under
which the due date of this Term Note may be accelerated. Upon the occurrence
of any Event of Default as specified in the Loan Agreement, the principal
balance hereof and the interest accrued hereon may be declared to be forthwith
due and payable in accordance with the Loan Agreement, and any indebtedness of
the holder hereof to the Borrower may be appropriated and applied hereon.
In addition to and not in limitation of the foregoing, the undersigned
further agrees, subject only to any limitation imposed by applicable law, to
pay all reasonable expenses, including reasonable attorneys' fees and legal
expenses, incurred by the holder of this Term Note in endeavoring to collect
any amounts payable hereunder which are not paid when due, whether by
acceleration or otherwise.
All parties hereto, whether as makers, endorsees, or otherwise,
severally waive presentment for payment, demand, protest, notice of intent to
accelerate, notice of acceleration and notice of dishonor.
THIS TERM NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF TEXAS AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EXECUTED this 25th day of October, 1996.
NDE ENVIRONMENTAL CORPORATION TANKNOLOGY/NDE CORPORATION
By: /s/ XXX XXXXX XXXXXXX By: /s/ XXX XXXXX XXXXXXX
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Xxx Xxxxx Xxxxxxx Xxx Xxxxx Xxxxxxx
Chairman of the Board Chairman of the Board
/s/ JAC
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USTMAN INDUSTRIES, INC.
By: /s/ XXX XXXXX XXXXXXX
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Xxx Xxxxx Xxxxxxx
Chairman of the Board
PROECO, INC.
By: /s/ XXX XXXXX XXXXXXX
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Xxx Xxxxx Xxxxxxx
Chairman of the Board
TANKNOLOGY CANADA (1988) INC.
By: /s/ XXX XXXXX XXXXXXX
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Xxx Xxxxx Xxxxxxx
President
/s/ JAC
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