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EXHIBIT 10.1a
REVOLVING NOTE
$5,000,000.00 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 FIVE MILLION DOLLARS
($5,000,000.00) or, if less, the aggregate unpaid principal amount of all Loans
(as defined in the Loan Agreement) made by the Bank to the Borrower pursuant to
the Loan Agreement, as shown in the records of the Bank, outstanding on such
date.
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 Note which lawfully permits the charging and collection of
the highest permissible lawful, non-usurious rate of interest on this 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, Xxxxxx'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
/s/ JAC
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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 not apply
to this Note or the loan transaction evidenced by, and referenced in, the Loan
Agreement (hereinafter defined) in any manner, including without limitation, to
any account or arrangement evidenced or created by, or provided for in, this
Note.
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. The Bank and the 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 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
Note or of any other instruments pertaining to or securing this 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
Note.
This Note is the Revolving 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
/s/ JAC
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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 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 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 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 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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