LOAN AGREEMENT
THIS LOAN AGREEMENT (this "LOAN AGREEMENT") is made and entered into as of
this 18th day of March, 1998 by and between Spin Forge, LLC, a California
limited liability company with principal offices at 1700 East Grand Avenue, El
Segundo, California 90245 ("BORROWER") and Dynamic Materials Corporation, a
Delaware corporation, with principal offices at 551 Aspen Ridge Drive,
Lafayette, Colorado 80026 ("LENDER"). Capitalized terms not otherwise defined
herein shall have the meaning ascribed to them in the Purchase Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties each hereby promise and agree as follows:
1. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings, unless the context otherwise requires:
"BORROWER FINANCIAL STATEMENTS" shall mean an income
statement, a balance sheet, a trial balance, a statement of cash disbursements,
a statement of cash receipts and all bank statements for all accounts of Spin
Forge, LLC.
"DEBT" shall mean, for any Person, all indebtedness of such
Person for borrowed money or for the deferred purchase price of Property or
services for which such Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or in respect of which such Person otherwise assures a
creditor against loss.
"DOVER" shall mean DDI Properties, Inc., a Delaware
corporation, along with any of its successors or assigns.
"DOVER NOTE" shall mean the Assumption of and Second
Modification of Unconditional Promissory Note by and between Borrower and Dover,
dated December 11, 1996.
"EVENT OF DEFAULT" shall mean the occurrence of any of the
events specified in Section 6 hereof.
"FREEDOM FORGE" shall mean Freedom Forge Corporation, a
Delaware corporation, along with any of its successors or assigns.
"FREEDOM FORGE NOTE" shall mean the Assumption and
Modification of Promissory Note and Restated Promissory Note by and between
Borrower and Freedom Forge, dated December 11, 1996.
"GUARANTOR" shall mean Joseph Allwein and Darlene Bauer.
"GUARANTOR FINANCIAL STATEMENTS" shall mean a personal balance
sheet and a personal bank statement for Joseph Allwein and Darlene Bauer.
"INDEBTEDNESS" shall mean any and all amounts owing or to be
owing by Borrower to Lender in connection with the Master Promissory Note or any
Security Instruments, including this Agreement, and all other liabilities of
Borrower to Lender from time to time existing, whether in connection with this
or other transactions.
"LIABLE PARTY" shall mean Borrower, any Guarantor, and any
other drawer, accepter, endorser, guarantor, surety, accommodation party or
other Person now or hereafter primarily or secondarily liable upon or for
payment of all or any part of the Indebtedness evidenced by this Agreement, the
Master Promissory Note and the Security Instruments.
"MASTER PROMISSORY NOTE" shall mean the promissory note of the
Borrower described in Section 2.1 hereof and being in the form of note attached
as Exhibit A hereto, together with any and all renewals, extensions for any
period, increases or rearrangements thereof.
"MATURITY DATE" shall mean January 1, 2002.
"MAXIMUM RATE" shall mean the maximum nonusurious rate of
interest allowed to be charged by Lender to Borrower by applicable law, as such
applicable law or rate of interest is in effect from time to time.
"OPERATING LEASE" shall mean that certain Operating Lease by
and between Borrower and Lender dated as of an even date herewith.
"OPTION AGREEMENT" shall mean that certain Option Agreement by
and between Borrower and Lender dated as of an even date herewith.
"PERSON" shall mean any individual, corporation, partnership,
joint venture, association, joint stock company, trust, unincorporated
organization, government or any agency or political subdivision thereof, or any
other form of entity.
"PROPERTY" shall mean any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"PURCHASE AGREEMENT" shall mean that certain Asset Purchase
Agreement dated as of an even date herewith.
"REAL PROPERTY" shall mean all of Borrower's right, title and
interest in real property consisting of land and buildings, together with all
structures, improvements, fixtures, appurtenant easements and other appurtances
thereto, located in Los Angeles County, California,
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with a street address of 1700 East Grand Avenue, El Segundo, California 90245,
as is more particularly described on Exhibit A to the Option Agreement.
"SECURITY INSTRUMENTS" shall mean this Agreement, the Stock
Pledge Agreement and the Personal Guaranty described or referred to in Section 8
of this Agreement and any and all other agreements or instruments now or
hereafter executed and delivered by the Borrower or any other Person in
connection with, or as security for the payment or performance of, the Master
Promissory Note or this Agreement, as such agreements may be amended or
supplemented from time to time.
2. AMOUNT AND TERMS OF LOAN.
2.1 ADVANCES. Subject to the terms and conditions of this Agreement,
Lender agrees to make advances to Borrower from time to time, the dates and
amounts of which advances are set forth on Schedule A attached hereto, as may be
amended from time to time upon the mutual written agreement of the parties. To
evidence the advances made by Lender pursuant to this Section 2.1, the Borrower
shall issue, execute and deliver the Master Promissory Note in the principal
amount of up to $600,000 dated of even date herewith and payable in full on the
Maturity Date. Lender shall not be obligated to make advances under this
Agreement if the amount of such advance, together with the then outstanding
principal balance of the Master Promissory Note, would exceed $600,000, unless
Lender (in its sole and absolute discretion) otherwise agrees in writing to
advance additional funds in which case such additional amounts shall constitute
further advances hereunder subject to all the terms and conditions of this
Agreement, the Master Promissory Note, and the Security Instruments. In the
event that the unpaid principal amount under the Master Promissory Note at any
time, for any reason, exceeds $600,000, Borrower covenants and agrees to pay the
excess principal amount forthwith upon demand unless Lender otherwise agrees in
writing. Such excess principal amount shall in all respects be deemed to be
included among the loans or advances made pursuant to the terms of this
Agreement.
2.2 NOTICE AND MANNER OF BORROWING. The amount and date of each
advance shall be set forth in Schedule A attached hereto unless Borrower
notifies Lender in writing of a proposed amendment to Schedule A at least ten
(10) business days prior to a scheduled advance and Lender, in its sole and
absolute discretion, agrees in writing to Borrower's proposed amendment.
2.3 CONDITIONS TO ADVANCES. Lender's obligation to extend each
advance pursuant to Section 2.1 above shall be subject to the following
conditions:
(a) In the event an advance is requested to be made on a date
other than a date set forth on Schedule A, Lender shall have received and
agreed in writing to a proposed amendment to Schedule A in accordance with
Section 2.2;
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(b) Lender shall have received Borrower Financial Statements
and Guarantor Financial Statements for the relevant time periods pursuant
to Section 4.2 hereof along with such other documents as Lender has
reasonably requested;
(c) No Event of Default or default or event which with notice
or the passage of time or both would become an Event of Default shall have
occurred and be continuing, including, without limitation, any failure by
Borrower to timely make any and all principal and interest payments due
to Dover under the Dover Note and due to Freedom Forge under the Freedom
Forge Note;
2.4 INTEREST RATE. The unpaid principal balance from time to time
outstanding under the Master Promissory Note shall bear no interest; provided,
however, that all past due principal on the Master Promissory Note, whether due
as a result of acceleration or maturity or otherwise, shall bear interest from
the date payment thereof shall have become due until the same is fully paid at
the Maximum Rate.
2.5 PREPAYMENT. Borrower, in its sole and absolute discretion,
reserves the right of prepaying the principal outstanding under the Master
Promissory Note, in full or in part, at any time without the payment of any
prepayment premium or fee.
3. REPRESENTATIONS AND WARRANTIES. In order to induce Lender to enter into
this Agreement, Borrower represents and warrants to Lender as follows:
3.1 LIMITED LIABILITY COMPANY EXISTENCE. Borrower is a limited
liability company duly organized, legally existing and in good standing under
the laws of the State of California, and is duly qualified as a foreign limited
liability company in all jurisdictions wherein the Property owned or the
business transacted by it makes such qualification necessary.
3.2 POWER AND AUTHORIZATION. Borrower is duly authorized and
empowered to incur the obligations provided for in this Agreement and to create
and issue the Master Promissory Note; and Borrower is duly authorized and
empowered to execute, deliver and perform the Security Instruments, including
this Agreement, to which it is a party; and Borrower has taken all limited
liability company action necessary to authorize the execution, delivery and
performance of this Agreement, the Master Promissory Note and the Security
Instruments to which it is a party.
3.3 BINDING OBLIGATIONS. This Agreement, the Master Promissory Note
and the Security Instruments constitute valid and legally binding obligations of
Borrower and the Guarantors, as the case may be, enforceable in accordance with
their respective terms except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditor's rights and by rules of law governing
specific performance, injunctive relief or other equitable remedies.
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3.4 TAXES; GOVERNMENTAL CHARGES. Borrower has filed all tax returns
and reports required to be filed and has paid all taxes, assessments, fees and
other governmental charges levied upon it or upon its Properties or income which
are due and payable, including interest and penalties, or has provided adequate
reserves for the payment thereof.
3.5 DEFAULTS. Borrower is not in default nor has any event or
circumstance occurred which, but for the passage of time or the giving of
notice, or both, would constitute a default under any loan or credit agreement,
indenture, mortgage, deed of trust, security agreement or other agreement or
instrument evidencing or pertaining to any Debt of Borrower, or under any
material agreement or instrument to which Borrower is a party or by which it is
bound. No Event of Default hereunder has occurred and is continuing.
3.6 TITLES. Borrower has good title to its Property, free and
clear of all liens, except:
(a) The Second Amended Deed of Trust securing the Dover Note;
and
(b) Security Instruments securing the Indebtedness evidenced
by this Agreement and the Master Promissory Note.
3.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties made by Borrower in connection with this Agreement, the Master
Promissory Note and the Security Instruments shall survive the delivery of the
Master Promissory Note and the making of advances thereunder and shall terminate
at such time as the Indebtedness evidenced by this Agreement, the Master
Promissory Note and the Security Instruments has been paid in full.
4. AFFIRMATIVE COVENANTS. The Borrower will at all times comply with the
covenants contained in this Section 4, from the date hereof and for so long as
any part of the Indebtedness is outstanding.
4.1 POWER AND AUTHORIZATION. Lender is duly authorized and empowered
to incur the obligations provided for in this Agreement; and Lender is duly
authorized and empowered to execute, deliver and perform this Agreement; and
Lender has taken all action necessary to authorize the execution, delivery and
performance of this Agreement.
4.2 BINDING OBLIGATIONS. This Agreement constitutes valid and
legally binding obligations of Lender, enforceable in accordance with their
respective terms except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to or
affecting enforcement of creditor's rights and by rules of law governing
specific performance, injunctive relief or other equitable remedies.
4.3 AUDIT RIGHT. Borrower will maintain complete and accurate books
of record and account and will permit any officer, employee or agent of Lender
to visit and inspect any of the
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Property of Borrower, examine any Borrower Financial Statements or books of
record and account, examine any Guarantor Financial Statements, perform audits
on the Borrower and any of Borrower's Property, take copies and extracts
therefrom, and discuss the affairs, finances and accounts of Borrower with
Borrower's members, officers and accountants, all at such times and as often as
the Lender may desire.
4.4 REPORTING. Borrower will promptly furnish to Lender from time to
time upon request by Lender such information regarding the business and affairs
and financial condition of Borrower as Lender may reasonably request, and will
furnish on a monthly basis to Lender the following:
(a) Borrower Financial Statements on a monthly basis within 15
business days after the end of the applicable month; and
(b) Guarantor Financial Statements and such other information
as Lender may reasonably request concerning the financial condition of the
Guarantor as of each June 30 and December 31, within 20 business days
after such date, and at such other times as Lender may request.
4.5 NOTICE OF CERTAIN EVENTS. Borrower will notify Lender
immediately if Borrower becomes aware of the occurrence of any Event of Default
or of any fact, condition, or event that, with the giving of notice or the
passage of time, or both, could become an Event of Default, or of the failure of
Borrower to observe any of its undertakings in accordance with this Agreement,
the Master Promissory Note or the Security Instruments.
4.6 TAXES AND OTHER LIENS. Borrower will pay and discharge promptly
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or upon any of its Property as well as all claims of any kind
which, if unpaid, might become a lien or encumbrance upon any or all of its
Property.
4.7 MAINTENANCE. Borrower will (i) maintain its limited liability
company existence, rights and franchises; (ii) observe and comply with all
present and future laws applicable to it in the operation of its business and
all material agreements to which it is subject.
4.8 PERFORMANCE OF OBLIGATIONS. Borrower will pay the Master
Promissory Note according to the reading, tenor and effect thereof, and Borrower
will do and perform every act and discharge all of the obligations to be
performed and discharged by Borrower under the Security Instruments, including
this Agreement, at the time or times and in the manner specified.
4.9 PAYMENT OF DEBT. Borrower will make all payments of principal
and interest, on or before the date on which such payments become due and
payable, with respect to all Debt existing from time to time for which Borrower
is directly or indirectly liable, including, without
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limitation, all payments of principal and interest due under the Dover Note and
the Freedom Forge Note.
4.10 ALTERATIONS TO DOVER NOTE. Borrower will provide Lender with
copies of all documents, including correspondence, relating to any amendments or
modifications of the Dover Note including, without limitation, any changes in
the payment schedule under the Dover Note.
4.11 REIMBURSEMENT OF EXPENSES. Borrower will, upon request,
promptly reimburse Lender for all amounts expended, advanced or incurred by
Lender to satisfy any obligation of Borrower under this Agreement or any
Security Instrument, to collect upon the Master Promissory Note, or to enforce
the rights of Lender under this Agreement of any other Security Instrument,
which amounts will include all court costs, attorneys' fees and accountants'
fees.
4.12 MINIMUM BALANCE. Borrower shall maintain a cash balance of no
less than Two Hundred Thousand Dollars ($200,000) at all times.
5. NEGATIVE COVENANTS. The Borrower will at all times comply with the
covenants contained in this Section 5, from the date hereof and for so long as
any part of the Indebtedness is outstanding. Borrower will not, without the
prior written consent of Lender:
(a) file a petition for bankruptcy or reorganization;
(b) other than as required under the Purchase Agreement,
attempt to sell, lease, exchange, transfer or otherwise dispose of,
whether by distribution, gift, abandonment or otherwise, any of its
Property including, without limitation, any attempted sale, lease,
exchange, transfer or other disposition of the Real Property;
(c) grant, create, incur, assume, permit or suffer to exist
any lien, mortgage, pledge, security interest, or other encumbrance with
respect to any of its Property, whether now owned or hereafter acquired,
including, without limitation, the Real Property, except:
(i) The Second Amended Deed of Trust securing
the Dover Note; and
(ii) Security Instruments securing the
Indebtedness evidenced by this Agreement and
the Master Promissory Note;
(d) make any liquidating or non-liquidating distributions or
any payments to its members, assignees, agents, employees or consultants
or any other Person other than (i) payments made in the ordinary course of
business or (ii) the distribution of any proceeds received by Seller
pursuant to the Purchase Agreement unless otherwise provided herein;
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(e) permit any change in membership, including, without
limitation, any sale or assignment of a member's interest in Borrower.
Borrower will not, without prior written consent of Lender, change its
limited liability company name or structure, or consolidate with, merge
into or acquire any Person, or permit any other Person to consolidate
with, merge into or acquire Borrower;
(f) file any articles of dissolution or take any other
equivalent action which would affect its organization and existence under
California law;
(g) enter into any obligations, contractual or otherwise, with
any Person other than any such obligations entered into in the ordinary
course of business;
(h) incur or suffer to exist any Debt or other obligation with
respect to which it is directly or indirectly liable, whether as a
borrower, guarantor or otherwise, except:
(i) the Dover Note,
(ii) the Freedom Forge Note, and
(iii) the Indebtedness;
(i) permit any amendment to its Articles of Organization or
its Operating Agreement (except for any amendment (i) that is not material
and (ii) the effect of which would not impair Lender's rights under this
Agreement, the Master Promissory Note or the Security Instruments).
6. EVENTS OF DEFAULT. The occurrence of any of the following events shall
constitute an Event of Default under this Agreement:
6.1 PAYMENTS. Borrower shall fail to make any payment of principal
or interest due with respect to the Master Promissory Note or defaults in any
other manner under the Dover Note; provided, however, that such failure shall
not constitute an Event of Default if such failure is caused directly by
Lender's continued failure to make rent payments under the Operating Lease or to
make advances as required under Section 2.1 hereof, and provided further that in
the event Borrower defaults under the Dover Note, Lender may work directly with
Dover to cure any such default.
6.2 REPRESENTATIONS AND WARRANTIES. The determination by Lender that
(i) any representation or warranty made by Borrower or any Guarantor in any
Security Instrument, including this Agreement was incorrect in any material
respect as of the date thereof; or (ii) any representation, statement, financial
statement (including, without limitation, the Borrower Financial Statements and
the Guarantor Financial Statements), certificate or data furnished or made by
the Borrower or any Guarantor (or any officer, accountant or attorney of the
Borrower or any Guarantor) under this
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Agreement or any Security Instrument was untrue in any material respect, as of
the date as of which the facts therein set forth were stated or certified.
6.3 AFFIRMATIVE COVENANTS. A breach of any of the covenants or
agreements contained in Section 4 of this Agreement if such breach is capable of
being cured and has not been cured to the satisfaction of Lender within three
(3) business days after written notice is given by Lender to Borrower.
6.4 NEGATIVE COVENANTS. A breach of any of the covenants or
agreements contained in Section 5 of this Agreement if such breach if such
breach is capable of being cured and has not been cured to the satisfaction of
Lender within three (3) business days after written notice is given by Lender to
Borrower.
6.5 OTHER SECURITY INSTRUMENT OBLIGATIONS. A breach by Borrower or
Guarantor of any of the covenants or agreements contained in any Security
Instrument other than this Agreement, and such breach continues unremedied
beyond the expiration of any applicable grace period which may be expressly
allowed under such Security Instrument.
6.6 DEFAULT ON OTHER DEBT. Borrower or any Liable Party defaults in
any payment of principal of or interest on any other Debt, including, without
limitation, the Dover Note and the Freedom Forge Note, beyond any period of
grace provided with respect thereto, or in any performance of any other
agreement, term, or condition contained in any agreement or instrument under or
by which any such Debt is created, evidenced or secured if the effect of such
default is to cause such obligation to become due before its stated maturity or
to permit the holder(s) of such obligation or the trustee(s) under any such
agreement or instrument to cause such obligation to become due prior to its
stated maturity, whether or not such default or failure to perform is waived by
the holder(s) of such obligation or such trustee(s).
6.7 INVOLUNTARY BANKRUPTCY OR OTHER PROCEEDINGS. With respect to
Borrower or any Liable Party:
(a) death or insolvency (however such insolvency may be
evidenced);
(b) commencement of any proceeding, procedure or remedy
supplementary to or in enforcement of a judgment against Borrower or any
other Liable Party, or with respect to any Property of any of them;
(c) action by any governmental authority or any court to take
possession of any substantial part of the Property of (or in the case of
an entity, such action to assume control over the affairs or operations
of) Borrower or any other Liable Party;
(d) appointment of a receiver for to take possession of the
Property of Borrower or any other Liable Party;
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(e) issuance of a writ or order of attachment or garnishment
against any of the Property of Borrower or any other Liable Party;
(f) commencement of an involuntary case or other proceeding
against Borrower or any other Liable Party seeking reduction,
cancellation, abatement or other relief with respect to the debts or other
liabilities of Borrower or any other Liable Party through liquidation,
reorganization or other relief pursuant to any bankruptcy, insolvency or
other similar law now or hereafter in effect; or
(g) entry of an order for relief against Borrower or any other
Liable Party in any case under the Federal Bankruptcy Code or any other
bankruptcy, insolvency or other similar law now or hereafter in effect.
6.8 VOLUNTARY PETITIONS. With respect to Borrower or any Liable
Party:
(a) commencement of a voluntary case or other proceeding by
Borrower or any other Liable Party seeking reduction, cancellation,
abatement or other relief with respect to the debts or other liabilities
of Borrower or any other Liable Party through liquidation, reorganization
or other relief pursuant to any bankruptcy, insolvency or other similar
law now or hereafter in effect, including consent to any such relief; or
(b) a general assignment for the benefit of creditors or a
failure generally to, or an admission in writing of an inability to, pay
debts as they become due by Borrower or any other Liable Party.
6.9 UNDISCHARGED JUDGMENTS. Failure by Borrower to pay, bond or
otherwise discharge within thirty (30) days any judgment or order for the
payment of money in excess of $10,000 that is not otherwise being satisfied in
accordance with its terms and is not stayed on appeal or otherwise being
appropriately contested in good faith.
6.10 MATERIAL ADVERSE CHANGE. The occurrence of a material adverse
change in the financial condition of Borrower or any Guarantor or any other
event or circumstance which gives Lender reasonable grounds upon which to
conclude that Borrower or a Guarantor, as the case may be, may not or will not
be able to perform or observe in the normal course their obligations under this
Agreement, the Master Promissory Note or any Security Instrument.
7. REMEDIES. Upon the occurrence of an Event of Default, Lender shall, in
its sole and absolute discretion, have the following rights and remedies:
7.1 ACCELERATION. Lender shall have the right to immediately declare
all unpaid principal on the Master Promissory Note due and payable, without
demand for payment, presentment
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for payment, protest, notice of intent to accelerate, notice of acceleration or
any other notices of any kind, each of which is hereby expressly waived by
Borrower.
7.2 TERMINATION OF LENDER'S OBLIGATIONS. Lender shall have the right
to immediately terminate and cease performance of any and all of Lender's
obligations under this Agreement, the Master Promissory Note and the Operating
Lease.
7.3 ASSUMPTION OF DOVER NOTE. Lender shall have the right to either
(i) assume Borrower's obligations under the Dover Note, or (ii) purchase the
Dover Note from the holder of the Dover Note provided the holder consents to
such sale.
7.4 ADDITIONAL RIGHTS. After any acceleration in accordance with
Section 7.1, Lender shall have, in addition to the rights and remedies provided
by this Agreement and the Master Promissory Note, all those rights and remedies
provided by the Security Instruments and by all applicable laws, including,
without limitation, the Uniform Commercial Code as enacted in the State of
California.
8. SECURITY INSTRUMENTS. The Indebtedness shall be secured by a
combination of the Stock Pledge Agreement and the Personal Guaranty. Lender may
release all or some portion of the pledged shares upon a written required made
by Joe Allwein provided that (i) no Event of Default has occurred and is
continuing under this Agreement and (ii) Lender is satisfied in its sole and
absolute discretion that the payment of the Indebtedness will be sufficiently
secured after such requested release.
9. MISCELLANEOUS.
9.1 FURTHER ASSURANCE. From time to time, Borrower will execute and
deliver to Lender such additional documents and will provide such additional
information as Lender may reasonably request to carry out the terms of this
Agreement and be informed of Borrower's financial condition and affairs.
9.2 CUMULATIVE RIGHTS AND WAIVERS. Each and every right granted to
Lender hereunder or under the Master Promissory Note or any Security Instrument
delivered hereunder or in connection herewith, or allowed at law or equity shall
be cumulative of and may be exercised in addition to any and all other rights of
Lender, and no delay or failure in exercising any right shall operate as a
waiver thereof, nor shall any single or partial exercise by Lender of any right
preclude any other or future exercise thereof or the exercise of any other
right. Borrower expressly waives any presentment, demand, protest, or other
notice of any kind. No notice to or demand on Borrower or the Guarantors in any
case shall, of itself, entitle Borrower or the Guarantors to any other or
further notice or demand in similar or other circumstances. No delay or omission
by Lender in exercising any power or right hereunder shall impair any such right
or power or be construed as a waiver thereof or any acquiescence therein, nor
shall any single or partial exercise of any such power preclude other or further
exercise thereof, or the exercise of any other right or power hereunder.
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9.3 USURY. Regardless of any provision contained in this Agreement,
the Master Promissory Note or the Security Instruments, the holder of the Master
Promissory Note shall never be entitled to contract for, charge, receive, take,
collect, reserve or apply as interest on the Master Promissory Note any amount
in excess of the Maximum Rate, and, in the event such holder ever contracts for,
charges, receives, takes, collects, reserves or applies as interest any such
excess, such amount which would be deemed excessive interest shall be subject to
the usury provisions contained in the Master Promissory Note.
9.4 NOTICES. All notices, requests, demands and other communications
under this Agreement shall be given in writing and shall be served either
personally, by facsimile or delivered by first class mail, registered or
certified, return receipt requested, postage prepaid and properly addressed as
follows:
If to Borrower: Spin Forge, LLC
1700 East Grand Avenue
El Segundo, CA 90245
Attn: Joseph Allwein
Fax: (310) 640-8599
With a copy to: Wolf, Rifkin & Shapiro, LLP
11400 W. Olympic Blvd.
Los Angeles, CA 90064
Attn: Richard Grant, Esq.
Fax: (310) 479-1422
If to Lender: Dynamic Materials Corporation
551 Aspen Ridge Drive
Lafayette, CO 80026
Attn: Richard Santa, Chief Financial Officer
Fax: (303) 604-1897
With a copy to: Davis, Graham & Stubbs LLP
Suite 4700
370 Seventeenth Street
Denver, CO 80202
Attn: David Bartlett, Esq.
Fax: (303) 892-7400
Notice shall be deemed received upon the earliest of actual receipt,
confirmed facsimile transmission or three (3) days following mailing in
accordance with this Section 9.4. Each party may change its address for notice
by the giving of notice thereof to the other party in the manner above stated.
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9.5 AMENDMENT. This Agreement may be amended, modified or
supplemented only by written agreement of the parties hereto.
9.6 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that neither this Agreement
nor any rights or duties hereunder may be assigned or delegated, as the case may
be, by Borrower without the prior written consent of Lender.
9.7 HEADINGS. The headings in this Agreement are inserted for
convenience and identification only and are not intended to describe, interpret,
define, or limit the scope, extent, or intent of this Agreement or any provision
thereof.
9.8 ENTIRE AGREEMENT. This Agreement embodies the entire agreement
and understanding of the parties hereto, and supersedes all prior agreements or
understandings (whether written or oral), with respect to the subject matter
hereof. There are no restrictions, promises, representations, warranties,
covenants or undertakings, other than those expressly set forth or referred to
herein.
9.9 GOVERNING LAW AND VENUE. The validity of this Agreement and any
of its terms and provisions, as well as the rights and duties of the parties
hereunder, shall be governed by the laws of the State of California (without
regard to its conflicts of law doctrines) and the venue for any action to
enforce or to interpret this Agreement shall be in a court of competent
jurisdiction located in the State of Colorado and each of the parties consents
to the jurisdiction of such court in any such action or proceeding and waives
any objection to venue laid therein.
9.10 SEVERABILITY AND INVALID PROVISIONS. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under present or
future laws effective during the term hereof, such provision shall be fully
severable; and this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof;
and the remaining provisions hereof shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance herefrom. Furthermore, in lieu of such illegal, invalid or
unenforceable provision(s) there shall be added automatically as a part of this
Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid and enforceable
and that shall not be more restrictive than the one severed herefrom.
9.11 GENDER AND NUMBER. Wherever the context requires, the gender of
all words used in this Agreement shall include the masculine, feminine and
neuter, and the number of all words shall include the singular and the plural.
9.12 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
BORROWER:
SPIN FORGE, LLC
/s/Joseph Allwein
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Joseph Allwein
LENDER:
DYNAMIC MATERIALS CORPORATION
/s/Richard A. Santa
-------------------------------------------
By: Richard A. Santa
Title: Vice President & CFO
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