Exhibit 10.25
TERM LOAN AGREEMENT
THIS TERM LOAN AGREEMENT (this "Agreement") is made, entered into, and
effective as of July , 2001 by and between Dynamic Materials Corporation, a
Delaware corporation ("Borrower"), and SNPE, Inc., a Delaware corporation
("Lender").
W I T N E S S E T H:
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WHEREAS, Borrower has requested that Lender extend a $4,000,000 term
loan to Borrower;
WHEREAS, Lender has agreed to make such Term Loan available to
Borrower, subject to the terms and on the conditions set forth in this
Agreement;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loan or other financial accommodation heretofore, now or
hereafter made by Lender to or on behalf of Borrower, the parties hereby,
intending to be legally bound, agree as follows:
SECTION 1. DEFINITIONS.
In addition to the capitalized terms defined elsewhere in this
Agreement, the following capitalized terms shall have the meanings set forth
below:
"Business Day" shall mean a day other than a Saturday, Sunday, or a
legal holiday on which banks are authorized or required to be closed in the
State of Colorado or the State of New York.
"Closing Date" shall mean July , 2001.
"Federal Funds Rate" shall mean for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day, provided that if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day.
"Loan Documents" shall mean this Agreement, the Note, the Stock Pledge
Agreement and any other instrument or agreement now or hereafter executed by
Borrower in connection with the Term Loan.
"Note" shall mean the term note in the form of Exhibit A attached
hereto as completed, executed and delivered by Borrower to Lender pursuant to
the terms of this Agreement.
"Term Loan" shall have the meaning provided in Section 2.1 hereof.
"Termination Date" shall mean the four year anniversary of the Closing
Date, as the same may be extended with the consent of Lender.
SECTION 2. TERM LOAN.
2.1. Term Loan. Lender agrees to make a term loan to Borrower in the
aggregate principal amount of $4,000,000 (the "Term Loan") from the date hereof
until the Termination Date. The Term Loan shall be evidenced by a single Note
made by Borrower payable to Lender in the original principal amount of
$4,000,000, in the form of Exhibit A.
2.2. Use of Proceeds. The proceeds of the Term Loan made hereunder
shall be used only for the acquisition by the Borrower of all of the outstanding
capital stock of Nobelclad Europe SA.
2.3. Interest Rates.
(a) Interest shall accrue on the outstanding Term Loan at a rate equal
to the applicable Federal Funds Rate plus 3.0%. Interest shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed.
(b) Upon the occurrence of any Event of Default (as defined in Section
6 hereof) and so long as such Event of Default is continuing, the unpaid
principal amount of the loan and accrued interest thereon, or any fees or any
other sum payable hereunder, shall thereafter until paid in full bear interest
at a rate per annum equal to the applicable Federal Funds Rate plus 6.0% (the
Penalty Rate); provided, that such rate shall be applied in lieu of and not in
addition to the rate specified in 2.3(a) above.
2.4. Interest Payments. The Borrower shall pay to Lender quarterly
interest on the unpaid principal balance of the Term Loan on March 31, June 30,
September 30 and December 31 of each year (with the first interest payment being
due on September 30, 2001).
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On the Termination Date, all amounts of accrued and unpaid interest shall be
immediately due and payable.
2.5. Principal Payments. Commencing September 30, 2002, and on the
last day of each calendar quarter thereafter, the Borrower shall make quarterly
principal payments in the amount of $333,333, with the final principal payment
being due on June 30, 2005 and amounting to $333,337. Borrower shall have the
right to prepay the Term Loan in whole at any time, or in part from time to
time, without premium or penalty, but with accrued interest on the principal
amount prepaid to the date of such prepayment.
SECTION 3. CONDITIONS TO CLOSING. The obligations of Lender hereunder shall be
subject to prior satisfaction of the following conditions:
3.1. Delivery of Note. Borrower shall have executed and delivered to
Lender the Note.
3.2. Stock Pledge Agreement. Borrower shall have executed and
delivered to Lender the Stock Pledge Agreement and shall have delivered all
applicable stock certificates, together with all necessary instruments of
transfer related thereto executed in blank.
3.3. Organizational Documents. Borrower shall have delivered to Lender
(i) certificates by an authorized officer of Borrower, upon which Lender may
conclusively rely until superseded by similar certificates delivered to Lender,
certifying (A) all requisite action taken in connection with the transactions
contemplated hereby, and (B) the names, signatures, and authority of Borrower's
authorized signers executing the Loan Documents, and (ii) such other documents
as Lender may reasonably require to be executed by, or delivered on behalf of
Borrower.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants to Lender as follows:
4.1. Organization, Powers, Etc. Borrower is duly organized, validly
existing and in good standing under the laws of the State of Delaware. Borrower
has the corporate power and authority to own its properties and to carry on its
business as presently conducted and to enter into this Agreement and the Note.
Borrower is qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where failure to so qualify and be in good
standing would have a material adverse effect on the financial condition or
operations of Borrower.
4.2. Organizational Authority. The execution, delivery and performance
of this Agreement and the other Loan Documents have been duly authorized. This
Agreement and the other Loan Documents have been duly executed and delivered.
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4.3. No Violation. The execution, delivery and performance of this
Agreement, the Note, and the other Loan Documents, and the borrowing of the Term
Loan hereunder, will not violate or constitute a material breach under the
organizational documents or by-laws of Borrower, nor any material indenture,
agreement, or other instrument to which Borrower is a party or by which Borrower
or its properties are bound, nor will it violate any laws, rules or regulations
applicable to Borrower the violation of which would result in a material adverse
effect on the financial condition or operations of Borrower. No consent,
permission, authorization, order or license of any governmental authority is
necessary in connection with the execution, delivery, performance or enforcement
of the Loan Documents.
4.4. Enforceability of Agreement. This Agreement and the Note are
legal, valid and binding agreements of Borrower, enforceable against Borrower in
accordance with their terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or other similar laws relating to the enforcement of
creditors' rights generally. The Stock Pledge Agreement is a legal, valid and
binding agreement of Borrower, enforceable against Borrower in accordance with
its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency or other similar laws relating to the enforcement of creditors'
rights generally.
SECTION 5. COVENANTS.
Borrower covenants and agrees, until the Term Loan has been terminated
and all amounts due hereunder have been paid in full, that:
5.1. Corporate Existence and Status. Borrower will cause to be done
all things necessary to preserve and keep in full force and effect its existence
and rights, to conduct its business in a prudent manner, to maintain in full
force and effect, and renew from time to time, its franchises, permits,
licenses, patents, and trademarks that are necessary to operate its business.
The Borrower will comply in all material respects with all valid laws and
regulations now in effect or hereafter promulgated by any properly constituted
governmental authority having jurisdiction; provided, however, that the Borrower
shall not be required to comply with any law or regulation which it is
contesting in good faith by appropriate proceedings as long as either the effect
of such law or regulation is stayed pending the resolution of such proceedings
or
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the effect of not complying with such law or regulation is not to jeopardize any
franchise, license, permit patent, or trademark necessary to conduct the
Borrower's business.
5.2. Insurance; Maintenance of Properties. The Borrower will maintain
with financially sound and reputable insurers, insurance with coverage and
limits as may be required by law or as may be reasonably required by Lender. The
Borrower will, upon request from time to time, furnish to Lender a schedule of
all insurance carried by it, setting forth in detail the amount and type of such
insurance. The Borrower will maintain in good repair, working order, and
condition, all properties used or useful in the business of the Borrower.
5.3. Payment of Taxes. The Borrower will pay all taxes, assessments,
and other governmental charges levied upon any of its properties or assets or in
respect of its franchises, business, income, or profits before the same become
delinquent, except that no such taxes, assessments, or other charges need be
paid if contested by the Borrower in good faith and by appropriate proceedings
promptly initiated and diligently conducted and if the Borrower has set aside
proper amounts, determined in accordance with U.S. GAAP, for the payment of all
such taxes, changes, and assessments.
5.4. Merger or Sale of Assets. Borrower shall not, without the written
consent of Lender, which consent shall not be unreasonably withheld, (a) merge,
consolidate or enter into a partnership or joint venture with any other person
or (b) sell, lease, transfer or otherwise dispose of its assets other than (i)
sales of inventory in the ordinary course of business and (ii) sales of obsolete
equipment.
5.5. Inspection. The Borrower will make available for inspection by
duly authorized representatives of Lender, or its designated agent, the
Borrower's books, records, and properties when reasonably requested to do so,
and will furnish Lender such information regarding its business affairs and
financial condition within a reasonable time after written request therefor.
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SECTION 6. EVENTS OF DEFAULT.
The occurrence of any of the following shall constitute an "Event of
Default" hereunder:
(a) Borrower shall fail to pay any principal or interest when due and
such failure shall continue for a period of three (3) Business Days;
(b) Borrower shall fail to observe or perform any covenant contained
in this Agreement or any other Loan Document, and such party shall not remedy
such failure within thirty (30) days after receipt of notice thereof from
Lender;
(c) Any representation or warranty made by Borrower herein proves
untrue in any material respect as of the date of the making or furnishing
thereof;
(d) There shall exist or occur any "Event of Default" (as defined in
such applicable agreement) under any loan agreement, guaranty, indenture or
similar agreement to which Borrower is a party and for which Lender is the
beneficiary; or
(e) Borrower shall (i) make an assignment for the benefit of its
creditors; (ii) admit in writing its inability to pay its debts as they become
due; (iii) file a petition under any applicable insolvency, debtor relief, or
reorganization statute, including without limitation, the Federal Bankruptcy
Code; (iv) be subject to an involuntary petition under any applicable
insolvency, debtor relief or reorganization statute, including without
limitation, the Federal Bankruptcy Code, which is not dismissed within sixty
(60) days of its filing; (v) appoint or consent to the appointment of any
receiver, conservator, liquidating agent or committee in any insolvency,
readjustment of debts, marshaling of assets or liabilities, or similar
proceedings of or relating to Borrower; or (vi) take any corporate action for
the purpose of effecting any of the foregoing.
Upon the occurrence of any Event of Default, Lender may, without further notice
or demand, (i) terminate all other obligations of Lender to Borrower hereunder,
(ii) declare all principal, interest and other amounts due hereunder (including,
without limitation, the Term Loan) to be immediately due and payable without
presentment, demand, protest or any other notice of any kind, all of which are
expressly waived, and (iii) exercise any or all of its rights and remedies under
this Agreement, the Note and Stock Pledge Agreement, or otherwise available by
agreement or under law, all of which remedies shall be cumulative and may be
exercised concurrently; provided, however, that if an Event of Default specified
in subsection (e) shall occur, the Term Loan and all other obligations of Lender
to Borrower hereunder shall automatically terminate and all principal, interest
and other amounts due hereunder shall automatically become due and payable,
without declaration, demand or notice by Lender.
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SECTION 7. MISCELLANEOUS.
7.1. Notices. All written notices, requests, or other communications
herein provided for must be addressed:
to the Borrower, as follows:
Dynamic Materials Corporation
5405 Spine Road
Boulder, Colorado 80301
Attn: Richard A. Santa, Vice President and Chief Financial Officer
Facsimile: (303) 604-3938
to Lender as follows:
SNPE, Inc.
101 College Road East
Princeton, New Jersey 08540
Attention: Bernard Fontana, President
Facsimile: (609) 987-2767
or at such other address as either party may designate to the other in writing.
Such communication will be effective (i) if by facsimile, when such facsimile is
transmitted and the appropriate confirmation of delivery is received, (ii) if
given by mail, 96 hours after such communication is deposited in the U.S. mail
(certified mail return receipt requested), or (iii) if given by other means,
when delivered at the address specified in this Section 7.1.
7.2. Non-Waiver. No delay or failure on the part of Lender in the
exercise of any power or right shall operate as a waiver thereof, or as an
acquiescence in any default, nor shall any single or partial exercise of any
power or right preclude any other or future exercise thereof or the exercise of
any other power or right. No acceptance of payments past the Termination Date
thereof shall constitute a novation or waiver of the terms hereof. No waiver
shall be valid against Lender unless made in writing and signed by Lender, and
then only to the extent expressly specified therein.
7.3. Governing Law, Etc. THIS AGREEMENT, THE NOTE AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF NEW
YORK. Time is of the essence hereunder. This Agreement may be executed in any
number of counterparts, and all such counterparts taken together shall be deemed
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to constitute an original. This Agreement shall be binding upon, and shall inure
to the benefit of, Borrower and Lender and their respective successors and
assigns.
7.4. Survival of Representations and Warranties. All representations
and warranties contained herein or made by or furnished on behalf of Borrower in
connection herewith shall survive the execution and delivery of this Agreement
and all other Loan Documents.
7.5. Descriptive Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
7.6. Severability. In case any one provision contained in this
Agreement, the Note or any other Loan Document shall be invalid, illegal or
unenforceable in any respect, the legality, validity, or enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby.
7.7. Entire Agreement. This Agreement, the Note, and any other Loan
Document integrate all the terms and conditions mentioned herein or incidental
hereto and supersede all oral representations and negotiations and prior
writings with respect to the subject matter hereof
7.8. JURY TRIAL WAIVER. THE BORROWER AND LENDER EACH WAIVE ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, BETWEEN LENDER AND THE BORROWER ARISING OUT OF, IN
CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered under seal the day and year first above written.
BORROWER:
Dynamic Materials Corporation
By: ________________________________
Name:
Title:
LENDER:
SNPE, Inc.
By: ________________________________
Name:
Title:
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EXHIBIT A
TERM NOTE
$4,000,000 Denver, Colorado
July , 2001
FOR VALUE RECEIVED, the undersigned, Dynamic Materials Corporation, a
Delaware corporation (the "Borrower"), hereby promises to pay to the order of
SNPE, Inc., a Delaware corporation (the "Lender"), at its principal office at
101 College Road East, Princeton, New Jersey 08540, or at such other place as
the holder hereof may designate in writing to Borrower, on or before the
Termination Date (as defined in that certain Term Loan Agreement dated as of
even date herewith, between Borrower and Lender, as hereinafter amended,
restated, supplemented or modified from time to time, the "Term Loan Agreement";
capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Term Loan Agreement), the principal sum of FOUR
MILLION AND NO/100 DOLLARS ($4,000,000.00) pursuant to the terms of the Term
Loan Agreement, plus all accrued and unpaid interest thereon as set forth in the
Term Loan Agreement. Interest shall accrue from the date hereof up to and
through the date on which all principal and interest hereunder is paid in full,
shall be computed on the basis of actual days elapsed in a year of 360 days, and
shall be calculated on the principal balance from time to time outstanding
hereunder at such rates of interest per annum as provided for in the Term Loan
Agreement. In addition to principal and interest, Borrower agrees to pay all
reasonable costs of collection, including without limitation, reasonable
attorneys' fees and expenses, if the indebtedness evidenced hereby is collected
at law or by or through an attorney-at-law, or in bankruptcy, receivership, or
other court proceedings. All amounts payable hereunder shall be paid in
immediately available funds in lawful money of the United States of America.
Borrower may at any time prepay the indebtedness represented by this
Term Note (this "Note") in whole or in part without penalty or premium. Payments
shall be applied first to accrued and unpaid interest hereunder, and then to
outstanding principal amounts.
This Note is issued pursuant to the Term Loan Agreement to which
reference is hereby made for a complete description of the terms and conditions
of the indebtedness evidenced by this Note. Lender or any holder hereof is and
shall be entitled to the benefits of Stock Pledge Agreement executed and
delivered to Lender pursuant to the requirements of the Term Loan Agreement.
Upon the occurrence and during the continuation of any Event of Default (as
defined in the Term Loan Agreement), the holder of this Note may, without
further notice or demand, declare any unpaid balance hereof, including principal
and accrued interest, to be immediately due and payable as provided in the Term
Loan Agreement, and may exercise any and all remedies referred to in the Term
Loan Agreement and the Stock Pledge Agreement, or otherwise existing under
applicable law.
No delay or failure on the part of Lender or on the part of any holder
of this Note in the exercise of any right, power or privilege granted under this
Note or the Term Loan Agreement, or otherwise available by agreement, at law or
in equity, shall impair any such right, power or privilege, or be construed as a
waiver of any Event of Default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege. No waiver shall be valid against
Lender unless made in writing and signed by Lender, and then only to the extent
expressly specified therein.
TIME IS OF THE ESSENCE HEREUNDER. THIS NOTE SHALL BE GOVERNED IN ALL
RESPECTS BY THE LAWS OF THE STATE OF NEW YORK.
PRESENTMENT, DEMAND AND NOTICE OF DISHONOR ARE HEREBY WAIVED.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed
and delivered under seal on its behalf, all as of the date first above written.
Dynamic Materials Corporation
By: ___________________________
Name:
Title:
[CORPORATE SEAL]