EXHIBIT 10.18
Standard/Chartered
The Mocatta Group
April 9, 1996
Advanced Metallurgy, Inc.
Murray Corporate Park
1003 Corporate Drive
Export, PA 15362
Attention: Ray Mattsey
Re: Silver Lease Agreement.
Gentlemen:
We are pleased to confirm that as of the date hereof we have entered into the
following Silver Lease Agreement (the "Agreement") with you:
Lessor:
Standard Chartered Bank
Mocatta Bullion - New York
Four World Trade Center
Suite 5200
New York, NY 10048
Telex No.: 125053
Answbk: MOC UR
Telephone: (212) 912-8444
Rapifax: (212) 912-8415
Lessee:
Advanced Metallurgy, Inc.
Murray Corporate Park
1003 Corporate Drive
Export, PA 15362
Attention: Ray Mattsey
Telephone: (412) 325-4028
Fax: (412) 733-2880
1. MATERIAL
Silver, minimum .999 fine, good New York (Comex) or London delivery, as mutually
agreed by Lessor and Lessee (hereinafter, "Material").
2. NATURE OF TRANSACTIONS
From time to time Lessee and Lessor shall enter into lease transactions (each, a
"Transaction") whereby (a) Lessor leases to Lessee a quantity of Material (each,
a "Quantity of Material") and
(b) Lessee agrees to return to Lessor such Quantity of Material on a mutually
agreed date in the future, all as more fully set forth below. Lessee shall at
all times lease at least six hundred thousand (600,000) ounces of Material from
Lessor under this Agreement, but the total amount of Material leased by Lessee
hereunder shall at no time exceed one million (1,000,000) ounces.
3. PLACE OF DELIVERY/PLACE OF RETURN
Such locations as Lessee and Lessor mutually agree.
4. PROCEDURE FOR TRANSACTIONS
a. To initiate a Transaction, Lessee will notify Lessor of the Quantity of
Material that Lessee wishes to lease under this Agreement.
b. With respect to each Transaction, Lessor and Lessee will agree upon the
following: (i) the Quantity of Material to be leased, (ii) the date such
Material is to be leased to Lessee (each such date, a "Lease Date") and
(iii) the location of delivery (the "Delivery Location").
c. From time to time Lessor will confirm to Lessee by facsimile in the form
attached as Exhibit I the lease rate (the "Rate") with respect to Material
leased under this Agreement and the date such Material shall be returned
to Lessor (each such date, a "Return Date").
d. On each Lease Date Lessor will deliver the agreed upon Quantity of
Material to Lessee at the location specified in accordance with Section 3
above.
e. From time to time during the term of this Agreement, Lessee may upon
notice to Lessor (which notice, if oral, shall be confirmed by telex or
facsimile) purchase leased Material at a price (the "Purchase Price")
equal to the product of the H&H Price on the day of such purchase plus 1.5
cents ($.015) per ounce. The Purchase Price shall be paid as provided in
Section 8 below on the second Business Day following Lessee's purchase of
Material.
f. Unless otherwise agreed by the parties, two Business Days before the
Return Date of any Material Lessee shall notify Lessor of its desire to
(i) purchase such Material from Lessor at the Purchase Price, (ii) return
such Material to Lessor or (iii) extend the Return Date of such Material.
On the Return Date, Lessee shall in the case of (i) above, pay Lessor the
Purchase Price and in the case of (ii) above, return the Material to the
Place of Return. In the case of (iii) above, Lessee's request to extend
the Return Date shall be treated as the initiation of a new Transaction
hereunder, and if Lessor agrees to such Transaction, Lessor shall on the
Return Date lease to Lessee the Quantity of Material to have been returned
on such Date at the then current Rate and otherwise subject to the terms
of this Agreement.
5. DURATION
The initial term of this Agreement will expire on the one year anniversary of
the date on which this Agreement is signed (the "Termination Date"). This
Agreement shall automatically extend for successive additional one year periods
(the initial term and each such additional one-year period, a "Term"), provided,
that, at any time following the Termination Date Lessor or Lessee may, by thirty
(30) Business Days written notice to the other, terminate this Agreement. If any
-2-
Transaction is outstanding on the termination of the Agreement, the terms and
conditions of this Agreement will remain in effect with respect to such
Transaction as if this Agreement had not been terminated.
6. EARLY TERMINATION
If at any time the total amount of Material leased by Lessee hereunder falls
below six hundred thousand (600,000) ounces without the prior consent of Lessor,
Lessee shall pay to Lessor all costs, charges and expenses which may be incurred
by Lessor in connection with such event, as determined by Lessor in any
commercially reasonable manner.
7. FEE
With respect to all Material leased hereunder, Lessee will pay Lessor a fee (the
"Fee") determined as described below. The Fee for any day will be equal to the
product of (i) (a) the Handy & Harmon ("H&H") price per ounce for Material on
such day (or if there is no H&H price for that day, the first preceding day on
which there is an H&H price) times (b) the number of ounces of Material subject
to Transactions hereunder on such day and (ii) and the Rate. Lessee will pay the
Fee to Lessor as provided in paragraph 8 below monthly against invoice (or on
such other terms as Lessee and Lessor agree), provided, that, the Fee for any
Transaction will be due in full on the initially agreed Return Date for such
Transaction (notwithstanding that, as provided in paragraph 4(f) above, a new
Transaction may have been initiated which extends the Return Date with respect
to the initial Transaction). The monthly invoice will reflect the total amount
of Material outstanding under this Agreement and the Rate with respect to such
Material and Lessor's costs, if any, of delivering Material to the Delivery
Location.
8. PAYMENTS
All payments by Lessee to Lessor under this Agreement shall be in U.S. dollars
and, unless otherwise specified, made by wire transfer in immediately available
funds to Lessor's Account No. 001-1-958899 at Chase Manhattan Bank, N.A., One
Chase Manhattan Plaza, New York, N.Y.
9. ASSIGNMENT
Lessor may, upon written notice to Lessee, assign all or any part of this
Agreement or any of Lessor's rights hereunder or with respect to any Transaction
(including Lessor's rights in or to any Collateral (defined below) provided
hereunder).
10. CONFIDENTIALITY
Lessee and Lessor agree that this Agreement and its terms and conditions shall
not be revealed to any third party other than a prospective Assignee without the
express consent of the other party or unless required by applicable law.
11. ENTIRE AGREEMENT
This Agreement, which incorporates the attached Appendix A, constitutes the
entire agreement of the parties with respect to the subject matter hereof and
supersedes any prior agreements, offers, proposals and negotiations between the
parties.
-3-
12. SECURITY
If at any time the Market Value (defined below) of Material subject to
Transactions hereunder exceeds seven million dollars ($7,000,000, the "Value
Limit"), Lessee will, upon 24-hours notice from Lessor, provide to Lessor margin
in the form of irrevocable stand-by letters of credit or other collateral
acceptable to Lessor ("Collateral") with a value equal to the amount by which
the Market Value of such Material exceeds the Value Limit. Any letter of credit
delivered hereunder shall be an irrevocable transferable stand-by letter of
credit substantially in the form of Exhibit II hereto (issued by such bank as
Lessor and Lessee agree) and shall expire not less than fifteen (15) Business
Days after the Return Date of the Transaction in respect of which such letter of
credit serves as Collateral. In the event the value of the Collateral is at any
time less than 100% or greater than 105% of the amount by which the Market Value
of Material then subject to Transactions hereunder exceeds the Value Limit, upon
the request of either party in writing to the other, the Collateral will be
adjusted so that at the end of the Business Day immediately following such
request, the Collateral value will be equal to such excess amount. As further
security for the performance of Lessee's obligations hereunder, Lessee hereby
grants Lessor a first priority security interest in any and all Collateral, with
authority to commingle, invest, reinvest, repledge and hypothecate the same as
Lessor sees fit. Lessee will have no right to and will not create any lien upon
or otherwise encumber the Collateral. Upon purchase and payment for or return of
Material such that the Market Value of all Material subject to Transactions
hereunder is less than the Value Limit, Lessor will deliver to Lessee, without
interest or increment, all Collateral then held by Lessor hereunder. "Market
Value" means for any day the product of (i) the H&H price per ounce for Material
on such day (or if there is no H&H price for that day, the first preceding day
on which there is an H&H price) and (ii) the number of ounces of Material
subject to Transactions hereunder on such day.
To signify your agreement hereto, please sign as indicated below and return to
us a copy of this letter, together with a signed copy of Appendix A attached.
Sincerely yours,
STANDARD CHARTERED BANK,
MOCATTA BULLION - NEW YORK
By: /s/ Timothy P. Dinneny
-------------------------------
By: VP
-------------------------------
AGREED:
ADVANCED METALLURGY, INC.
By: /s/ James Rafferty, Jr.
---------------------------------
Date: 4/29/96
-4-
Appendix A
LEASE AGREEMENT
TERMS AND CONDITIONS
The provisions of this Appendix are terms and conditions of the Agreement to
which this Appendix is attached.
A. Definitions. The following terms, when used in the Agreement, have the
meanings stated:
(i) "Assignee" means any entity to which Lessor makes an assignment
pursuant to paragraph 9 of the Agreement.
(ii) "Business Day" means a day (except for Saturday) on which banks in
New York City are open for business.
(iii) "Guarantor" means Technitrol, Inc., a Delaware corporation and
holder of 100% of the issued and outstanding shares of Lessee, who
shall execute and deliver to Lessor a guarantee in the form of
Exhibit III (the "Guarantee").
(iv) "Lessee" means the entity designated as such in the Agreement and
shall also include any Successor to such entity that is named in
accordance with the provisions of paragraph H herein.
(v) "Lessor" means Standard Chartered Bank, Mocatta Bullion - New York,
an English bank.
(vi) "Notice of Assignment" means a written notice of any assignment by
Lessor under paragraph 9 of the Agreement, which shall be provided
to Lessee by Lessor, as set forth in paragraph H herein.
(vii) "Successor" means, with respect to Lessee, any entity (now or
hereafter existing) affiliated with Lessee which succeeds to the
type of business served under this Agreement.
B. Representations, Warranties and Covenants of Lessee. The following
representations, warranties and covenants are accurate and complete in all
material respects as of the -date hereof and shall remain accurate and
complete in all material respects until payment and performance in full by
Lessee of its obligations and liabilities under the Agreement or under any
indebtedness, obligations or liabilities of Lessee to Lessor, whether now
existing or arising hereafter:
1. Lessee understands that Lessor has relied on Guarantor's financial
statements dated as of December 30, 1994 in entering this Agreement.
Since the date of such financial statements, there has been no
material adverse change in the business, properties, assets,
liabilities, operations, results of operations, prospects or
condition, financial or otherwise, of Lessee or, to the best
knowledge of Lessee, of Guarantor;
-5-
2. Each of Lessee and Guarantor (i) is and will remain duly organized,
validly existing and in good standing under the laws of the state of
its incorporation as of the date hereof, (ii) has and will have full
power and authority to own its properties and to carry on its
business as now being conducted and is qualified to do business in
every jurisdiction where such qualification is necessary, except
where the failure to so qualify would not have a material adverse
effect on the business or financial condition of Lessee or any
security interests granted to Lessor by Lessee and (iii) has and
will have full power to execute, deliver and perform the Agreement,
the Guarantee, and any security document or documents securing its
obligations under the Agreement, as the case may be;
3. The execution, delivery and performance by Lessee and Guarantor, as
the case may be, of the terms and provisions of the Agreement, the
Guarantee and any security or other document contemplated hereby (i)
have been duly authorized by all requisite corporate action, (ii)
will not violate any provision of law, any order of any court or
other agency of government, the corporate charter or bylaws of
Lessee or Guarantor, (iii) will not violate any indenture, agreement
or other instrument to which Lessee or Guarantor is a party, or by
which it is bound, or be in conflict with, result in a breach of, or
constitute (with notice or lapse of time or both) a default under
such indenture, agreement or other instrument, and (iv) will not,
except as the Agreement may provide, result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of Lessee or Guarantor
pursuant to any such indenture, agreement or instrument;
4. There is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency now pending
or, to the knowledge of Lessee or Guarantor, threatened, against or
affecting Lessee or Guarantor which, if adversely determined, would
have a material adverse effect on the business, properties, assets,
liabilities, operations, results of operations, prospects or
condition, financial or otherwise, of Lessee or Guarantor;
5. Neither of Lessee and Guarantor is or will be -in default in the
performance, observance or fulfillment of any of the obligations,
covenants or conditions contained in any agreement or instrument to
which it is a party where such default, with or without the passage
of time or the giving of notice, would have a material adverse
effect on the business, properties, assets, liabilities, operations,
results of operations, prospects or condition, financial or
otherwise, of Lessee or Guarantor. Each of Lessee and Guarantor will
obtain any approvals or consents from third parties required in
connection with the leasing of Material from Lessor and will furnish
Lessor with copies thereof prior to the leasing of Material
hereunder;
6. Lessee shall comply in all material respects with all applicable
laws and regulations, whether now in effect or hereafter enacted or
promulgated by any governmental authority having jurisdiction in the
premises, including but not limited to environmental or similar laws
and any regulations promulgated thereunder;
-6-
7. Lessee shall pay and discharge or cause to be paid or discharged all
taxes, assessments and governmental charges or levies imposed upon
it or upon its respective income and profits or upon any of its
property, real, personal or mixed, or upon any part thereof, before
Lessee shall become in default, as well as all lawful claims for
labor, materials and supplies or otherwise, which, if unpaid, might
become a lien or charge upon such properties or any part thereof;
8. Lessee shall give prompt written notice to Lessor of any proceedings
instituted by or against it or Guarantor in any federal or state
court or before any commission or other regulatory body, federal,
state or local, which, if adversely determined, could have a
material adverse effect upon the business, properties, assets,
liabilities, operations, results of operations, prospects or
condition, financial or otherwise, of Lessee or Guarantor;
9. Lessee shall furnish to Lessor within one hundred twenty (120) days
after the end of Guarantor's fiscal year, the annual report of
Guarantor showing Lessee's and Guarantor's financial condition at
the close of such fiscal year, and the results of Lessee's and
Guarantor's operations during such year;
10. Lessee shall permit agents or representatives of Lessor to inspect,
at any time during normal business hours, the Material and Lessee's
books and records with respect to the Material and Lessee's precious
metal inventory and to make abstracts or reproductions of such books
and records. Lessor shall give Lessee two days' notice prior to any
such inspection, except that upon the occurrence of an Event of
Default, Lessor may conduct such inspection and the activities
described above in connection therewith without notice to Lessee;
11. Lessee shall, upon the occurrence thereof, advise Lessor of any
condition or event which constitutes, or with notice or lapse of
time or both would constitute, an Event of Default;
12. Lessee shall defend the Material against any claims and demands of
any persons at any time claiming the same or any interest therein;
13. Lessee shall notify Lessor immediately upon the occurrence of any
loss, theft or destruction of the Material;
14. Lessee shall indemnify and hold harmless Lessor in the event Lessor
is sued, fined, penalized or otherwise held primarily or secondarily
liable by any governmental agency, regulator, or authority or by any
other third party, for any acts or omissions of Lessee in connection
with any alleged violations of any applicable laws or regulations,
including any environmental or similar laws and any regulations
promulgated thereunder; and
15. Lessee, at its sole cost and expense, shall procure and maintain
property insurance covering any location where the Material will be
located on an all risk form (including but not limited to, fidelity
insurance for all employees and officers) as may from time to time
be reasonably required by Lessor. Prior to Lessor's first delivery
of Material to Lessee under the Agreement, Lessee shall deliver to
Lessor evidence of such insurance satisfactory to Lessor. Lessee
shall promptly
-7-
provide Lessor with written notice of all losses. Lessee shall pay
all costs and expenses of collecting any proceeds under such
insurance policies.
Notwithstanding anything herein to the contrary, the covenant set forth in
subparagraph 14. hereof shall survive the termination of the Agreement.
C. Fee. Lessee will pay Lessor the Fee as specified in paragraph 7 of the
Agreement. Payment of the Fee shall be in U.S. dollars in immediately
available funds as specified in paragraph 8 of the Agreement, provided,
that in the event Lessee shall receive a Notice of Assignment which
specifies that Lessor's rights to the Fee have been assigned, Lessee shall
pay the Fee to such place as the Assignee specifies in a written notice to
Lessee.
D. Title to Material; Security Interest. At all times from delivery of
Material to Lessee under the Agreement until Material is returned, or
purchased and paid for by Lessee, title to Material shall be in Lessor and
at no time shall Lessee have, or have the ability to create in any third
party, any property interest in the Material. Lessee shall take and hereby
authorizes Lessor to take any and all steps necessary or appropriate to
advise third parties that the Material is the property of Lessor. Material
held, either in the form delivered, in processing or as finished goods,
shall at all times equal the amount of Material delivered to Lessee under
the Agreement and the records of Lessee shall at all times so reflect.
Risk of loss or damage from any cause whatsoever to, and responsibility
for, any Material delivered to Lessee under the Agreement shall pass to
Lessee at the time of receipt by Lessee or Lessee's agent of such Material
pursuant to paragraph 4 of the Agreement.
Notwithstanding the previous paragraph, to further secure the performance
of Lessee's obligations hereunder, Lessee hereby grants to Lessor the
senior security interest in and lien on any Material subject to a
Transaction hereunder and the proceeds and products thereof. Such security
interest shall attach upon the delivery of a Quantity of Material by
Lessor hereunder. Subject to the terms of this Section D, Lessee agrees to
sign such financing and continuation statements and other documents and to
take all other reasonable steps which Lessor deems necessary or desirable
to perfect the security interest granted Lessor herein. Lessee represents
and warrants to Lessor that as of the date of this Agreement (i) no
precious metal borrowed, leased, consigned or otherwise procured or used
by, or in the possession of, Lessee is subject to any security interest,
lien or other encumbrance (other than the security interest granted
herein), (ii) no UCC-1 financing statements or similar documents have been
filed against such precious metal and (iii) no other party has or will
have a security interest, lien or other encumbrance in the Material
subject to Transactions hereunder. Lessee will not permit any person or
entity (other than Lessor in accordance with this Agreement) to file UCC-1
financing statements or similar documents on any precious metal borrowed,
leased, consigned or otherwise procured or used by, or in the possession
of, Lessee without at least 10 business days notice to, and the prior
written consent of, Lessor. In reliance on the foregoing representations,
warranties and covenants, Lessor agrees that it will not file any UCC-1
financing statements or similar documents perfecting the security interest
granted to Lessor herein, provided, however, upon a breach of the
foregoing representations, warranties or covenants or any default under
this Agreement, Lessor may immediately upon notice to Lessee file such
statements or other documents and take all other steps
-8-
which Lessor deems necessary or desirable to perfect the security interest
as Lessor determines in its sole discretion.
E. Return or Purchase of Material. If and to the extent that Lessee elects to
return Material as specified in paragraph 4 of the Agreement, Lessee shall
return such Material to Lessor as specified in the Agreement, provided,
that in the event Lessee shall receive a Notice of Assignment which
specifies assignment of Lessor's rights to and interest in Material, all
Material then or thereafter to be returned to Lessor under the Agreement
shall be delivered to the account of the Assignee named in the Notice of
Assignment, at the address specified therein, unless Lessee is otherwise
instructed in writing by the Assignee.
If and to the extent Lessee elects to purchase Material as specified in
paragraph 4 of the Agreement, Lessee shall pay the purchase price to
Lessor by depositing the amount thereof in immediately available funds as
specified in paragraph 8 of the Agreement, provided, that in the event
Lessee shall receive a Notice of Assignment which specifies assignment of
Lessor's rights to and interest in Material, Lessee shall pay such
purchase price to the Assignee named in the Notice of Assignment, as
specified therein, unless Lessee is otherwise instructed in writing by the
Assignee.
F. Time of Essence. Lessee understands and agrees that time is of the essence
in performing all of its obligations hereunder, including its obligations
to return, or purchase and pay for, Material and to pay the Fee.
G. Consideration. The parties mutually acknowledge that their agreement to
this transaction has involved the exchange of good and valuable
consideration.
H. Assignment. In the event Lessor makes an assignment pursuant to paragraph
9 of the Agreement, Lessor or the Assignee shall promptly give a Notice of
Assignment to Lessee. The Notice of Assignment shall state the name and
address of the Assignee and shall specify the rights and interest assigned
any change in the procedures to be followed by Lessee under the Agreement.
Lessee will promptly acknowledge directly to the Assignee receipt of the
Notice of Assignment. Notwithstanding any such assignment, Lessor shall
remain liable for the performance of its obligations under the Agreement.
Lessee may not assign or transfer its rights under the Agreement in whole
or in part, provided, however, that Lessee may, upon the prior written
consent of Lessor, which consent shall not be unreasonably withheld,
assign or transfer its rights under this Agreement to a Successor having a
creditworthiness acceptable to Lessor. Lessor and Lessee agree that after
receipt by Lessee of a Notice of Assignment they shall not amend the
Agreement without the prior written consent of the Assignee. Lessee agrees
that after its receipt of a Notice of Assignment it will not assert
against the Assignee, as a defense to or setoff of its obligations under
the Agreement, any matter, state of facts or thing (whether arising before
or after receipt of the Notice of Assignment) which it may be entitled to
raise as a defense or setoff to its obligations to Lessor under the
Agreement.
I. Negative Covenants. Lessee covenants and agrees that, until the
satisfaction in full of all of Lessee's obligations to Lessor hereunder,
Lessee will not, directly or indirectly, (i) create, incur, assume or
suffer to exist any pledge, lien, security interest or other encumbrance
of any nature whatsoever, on any of the Material other than any security
-9-
interest granted to Lessor, or enter into any other transaction or
agreement which contemplates any consignment or leasing (or any
arrangement similar thereto) of precious metal by Lessee; (ii) sell,
lease, transfer or otherwise dispose of all or any portion of the
Material, or any of its property or assets, including but not limited to
inventory, receivables or licenses, except in the ordinary course of its
business; (iii) dissolve, liquidate, consolidate with or merge with any
other entity or (iv) guarantee or otherwise in any way become or be
responsible for obligations of any other person. Notwithstanding the
previous sentence, Lessee may from time to time guarantee the obligations
of Guarantor or other entities controlled by Guarantor, provided, that,
(a) none of such guarantees shall be for an amount greater than Lessee's
net worth at the time such guarantee is issued and (b) the issuance of any
such guarantees shall not, individually or in the aggregate, have a
material adverse affect on the business or prospects of Lessee.
J. Default.
I. An Event of Default shall be deemed to occur if:
1. any amount that is required to be paid to Lessor, as specified
in the Agreement, is not paid when due and Lessor gives Lessee
notice of such nonpayment, or
2. Lessee fails to perform any other obligation under the
Agreement, Lessor gives Lessee notice of such failure and
Lessee fails within two Business Days thereafter to perform
such obligation, or
3. any proceedings are commenced by or against Lessee or
Guarantor under any law relating to bankruptcy, insolvency or
the relief. of debtors, Lessee or Guarantor makes an
assignment for the benefit of creditors, or a receiver,
trustee, conservator, liquidator or similar officer is
appointed for Lessee or Guarantor or any or all of Lessee's or
Guarantor's property, as the case may be, or
4. Lessee or Guarantor materially defaults under any material
agreement or receives notice of default or notice of impending
default or suspends or ceases or threatens to suspend or cease
to carry on its business or a substantial part thereof and
Lessee or Guarantor, as the case may be, fails to (i) cure
such default within the period specified in such agreement, or
(ii) resume such suspension or cessation or rescind such
threat, as the case may be, within two Business Days
thereafter and, in the case of (i) or (ii) such circumstance
has or will have, in the reasonable opinion of Lessor, a
material adverse affect on the business or prospects of Lessee
or Guarantor, or
5. all or a substantial part of the assets of Lessee or Guarantor
is seized, nationalized, expropriated or compulsorily acquired
by or under the authority of any governmental authority, or
6. there occurs a material adverse change in the business,
properties, assets, liabilities, operations, results of
operations, prospects or condition,
-10-
financial or otherwise, of Lessee or Guarantor, and Lessee or
Guarantor, as the case may be, fails to reverse such material
adverse change within two Business Days thereafter, or
7. Lessee or Guarantor makes a material false statement in any
report, notice or other communication to Lessor, or
8. Lessee or Guarantor fails to pay when due any portion of any
material indebtedness for which Lessee or Guarantor, as the
case may be, is liable, directly or otherwise, or
9. any of the representations made herein to Lessor cease to be
accurate and complete in any material respect, or Lessee
materially breaches any covenant made hereunder.
II. Upon the occurrence of an Event of Default Lessor may, without
notice or prejudice to any other remedies which Lessor may have at
law or otherwise, at its option (i) terminate any or all of Lessor's
obligations to Lessee for future performance, (ii) declare the date
of occurrence of such Event of Default as the Return Date with
respect to any Transaction outstanding hereunder and upon such
declaration by Lessor, Lessee shall purchase, pay for and release
the Quantity of Material subject to such Transaction as provided in
paragraph 3.e. of the Agreement, and (iii) hold Lessee liable for
all damages, consequential or otherwise, incurred by Lessor in
entering into the performing of its obligations under this
Agreement, including, without limitation, the cost of Lessor of
terminating any Transaction earlier than such Transaction's Return
Date.
III. Lessor's rights under this Section J. shall be in addition to, and
not in exclusion of, any other rights which it may have (whether by
agreement, operation of law, in equity or otherwise). Lessor shall,
without limitation of the foregoing, be entitled to take possession
of and/or sell, liquidate, transfer or otherwise dispose of all or
any portion of the Material, at public or private sale and on such
terms and conditions as Lessor may elect in its discretion. In
addition to Lessor's other rights herein and as provided by law upon
an Event of Default, Lessee hereby expressly authorizes Lessor or
its authorized agent to enter its premises for the purpose of taking
possession of all or any portion of the Material and agrees to
assemble all or any portion of the Material and/or make all or a
portion of the Material, as Lessor may direct, available to Lessor
or any purchaser of the Material.
K. Further Documents. Lessee agrees that it will at any time at the request
of Lessor perform or provide such further acts, consents, reports,
transfers, acknowledgments and assignments as may be reasonably required
to enable Lessor to transfer its rights hereunder and its title to the
Material to a third party during the term of the Agreement, whether by way
of outright assignment or as security in connection with a financing
transaction.
L. Governing Law; Submission to Jurisdiction. The Agreement shall in all
respects be governed by and construed in accordance with the laws of the
State of New York
-11-
applicable to contracts made and to be performed within the State of New
York without regard to the conflicts of laws provisions thereof.
M. Amendments; No Waiver. The Agreement shall not be amended, or in any way
modified, except by a writing signed by the parties hereto and any
Assignee. No waiver of any provision of the Agreement may be implied from
any course of dealing by either party or any Assignee or from any failure
by either party or any assignee to assert its rights on any occasion or
series of occasions.
N. Notices. All notices under the Agreement shall be given by certified or
registered mail or courier, postage prepaid, or by telex or telecopy
to-the respective parties hereto at the address of such party specified on
the first page of the Agreement or at such other address as either party
shall designate for itself by written notice to the other party hereto.
All notices shall be sent to the attention of: (i) in the case of the
Lessor, The Treasurer, and (ii) in the case of the Lessee, the Vice
President of Purchasing and Distribution. All notices to a party hereunder
shall be deemed received when delivered at the address for such party
specified above during normal business hours and marked "Urgent". Normal
business hours shall be from 9:00 a.m. to 5:00 p.m., on any Business Day.
O. Late Payment or Return. Any sum payable by Lessee hereunder if not paid
when due shall bear interest, compounded daily, from its due date until
the actual date of payment at a rate equal to Chase Manhattan Bank, N.A.'s
publicly announced prime rate, plus 3 % per annum, from time to time in
effect during the period (but not more than the highest amount at the time
permitted by law).
P. Severability. In the event any provision of the Agreement shall be held
invalid or unenforceable by a court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provisions
hereof.
Q. Lessor Has No Responsibility for Recommendations. Lessee represents that
it did not enter into the Agreement, and agrees that it shall not hold
Lessor responsible for losses sustained by Lessee, as a result of any
prediction or recommendation made by any representative of Lessor.
R. Confirmations Conclusive. Confirmations of the execution or orders for the
purchase or lease of Material of Lessee shall be conclusive, save for
manifest error, if not objected to in writing by the tenth day following
transmission by facsimile to Lessee or by the twentieth day following
transmission by mail to Lessee, except that if such day is not a Business
Day, then the next succeeding Business Day shall be the date on which such
statement of account shall be conclusive.
S. Force Majeure. Lessor's performance of its obligations hereunder is
subject to suspension by reason of events of Force Majeure, which shall
include strikes, boycotts, fires, floods, other natural disasters, wars,
interruptions in transportation, requirements or regulations of
governmental agencies, and all other disabling causes without regard to
the foregoing enumeration beyond control of Lessor or Lessor's suppliers.
Lessor's obligations shall be suspended so long as any such cause prevents
or delays its performance. In the event of any occurrence interrupting or
reducing the operations of mines or plants where items covered hereby are
produced or processed or any other
-12-
occurrence beyond Lessor's reasonable control affecting Lessor's ability
to perform hereunder, delivery may, at Lessor's option, be deferred so
long as the condition prevents or delays performance. After termination of
any such contingency, Lessee may accept delivery in the regular course,
but shall have no obligation to accept delivery, and Lessor shall not be
liable for any delay. In the event of suspension, interruption or
termination of delivery by Lessor for a period in excess of thirty (30)
days, then Lessee may terminate this Agreement upon five (5) days' written
notice, and upon termination Lessee shall have no further liability-or
obligation hereunder except for any payments of obligations due up to such
date of termination.
T. Conditions Precedent. This Agreement shall not become effective until (i)
Guarantor has executed and delivered to Lessor the Guarantee in the form
attached hereto as Exhibit III and (ii) Lessee has executed and delivered
to Lessor a letter agreement in the form attached hereto as Exhibit IV.
The failure of (a) such Guarantee or letter agreement to remain in full
force and effect or (b) Guarantor to own 100% of the issued and
outstanding shares of Lessee shall be an event of default under this
Agreement, and Lessor shall have all rights and remedies provided herein
or in the Guarantee.
AGREED:
ADVANCED METALLURGY, INC.
By: /s/ James Rafferty, Jr.
----------------------------------
Authorized Signatory
Date: 4/29/96
-13-
EXHIBIT I
Standard Chartered Bank
Mocatta Bullion - New York
Suite 5200
Four World Trade Center
New York, NY 10048
Attn: Treasurer
Fax: (212) 912-8415
GUARANTEE
FOR VALUABLE CONSIDERATION, the undersigned hereby absolutely and
unconditionally guarantees to Standard Chartered Bank and its Affiliates (the
"Bank") the punctual payment and performance, when due, whether by acceleration
or otherwise, of each and every obligation to the Bank, of Advanced Metallurgy,
Inc. (the "Customer") arising under transactions with Mocatta Bullion - New York
or otherwise ("Obligations"); agrees that it shall pay its obligations hereunder
without deduction or set off agrees that its obligations hereunder shall not be
released by any amendment to or waiver of any rights under any agreement between
the Customer and the Bank or otherwise or any release of any security granted
for any Obligations, or by any bankruptcy or similar proceeding in respect of
the undersigned, the Customer, the Bank or any party to any security document or
by the invalidity, illegality or unenforceability of any Obligations; agrees
that the Bank may enforce its rights hereunder without first exhausting any
other rights and remedies it may have and shall be entitled to payment from the
undersigned for all expenses including legal expenses, incurred by the Bank in
enforcing its rights hereunder; agrees that the liability of the undersigned to
the Bank shall be joint and several with any other guarantors of the
Obligations; agrees that this Guarantee shall continue to be effective or shall
be reinstated if at any time payment of any sum hereby guaranteed is rendered
void or ordered to be returned by the Bank upon the bankruptcy of the Customer
or otherwise, all as though such payment had not been made; agrees that this
Guarantee and any controversies and actions arising therefrom shall be governed
by New York law (without regard to the conflicts of law provisions thereof);
agrees that the Bank is hereby granted as security a lien in and to and right of
set off against all cash and other property of the undersigned held by the Bank;
and agrees that the Bank may, without the consent of or notice to the
undersigned, and without impairing the obligations of the undersigned hereunder,
realize upon security of the Customer or the undersigned in any manner, and
apply amounts obtained thereby to the payment of any Obligations. The
undersigned may terminate this Guarantee effective thirty days after the Bank
receives written notice of the termination at the address or facsimile number
set forth above, The obligations of the undersigned hereunder shall continue,
irrespective of such termination, in respect of Obligations which arise before
the effective date of the termination.
Name & Address of Guarantor By: /s/ Albert Thorp, III
- --------------------------- -------------------------------------
Albert Thorp, III Authorized Signatory of Guarantor
Technitrol, Inc.
1210 Northbrook Drive, Ste. 385 Date: 4/29/96
Trevose, PA 19053 -----------------------------------
EXHIBIT I
Standard/Chartered
MOCATTA BULLION
Four World Trade Center
Suite 5200
New York, NY 10048
Telephone: (212)-912-8445
Facsimile: (212) 912-8415
FACSIMILE TRANSMISSION
TO: Advanced Metallurgy Inc.
ATTN:
FROM:
DATE: 04/09/96
RE: Silver Lease
# OF PAGES: cover
SPECIAL INSTRUCTIONS: FAX NO.:
I have the pleasure of confirming the rollover of the Silver Lease subject to
the terms and conditions of our Silver Lease Agreement dated April 10,1996.
The Silver Lease Rate for the period from April 16,1996 up to and including
October 16, 1996 shall be "Rate".
If you are in agreement with the above terms please sign and return a copy of
this fax as soon as possible.
Regards,
AGREED & ACCEPTED
- ----------------------- For Internal Use:
Credit:____
Accting:____
***
Confidentiality Notice:
[The documents accompanying this transmission contain confidential information
intended for a specific individual and purpose. The information is private, and
is legally protected by law. If you are not the intended recipient, you are
hereby notified that any disclosure, copying, distribution, or the taking of any
action in reliance on the contents of this telecopied information is strictly
prohibited.]
EXHIBIT I
(Letterhead of Issuing Bank)
IRREVOCABLE LETTER OF CREDIT
------------
(DATE)
All drafts must be
marked: "Drawn under
Letter of Credit No.
___________"
To beneficiary: For account of:
Standard Chartered Bank
Mocatta Bullion - New York
Suite 5200
Four World Trade Center
New York, NY 10048
Amount U.S. $________________ Expiration Date:_____
Gentlemen:
We hereby establish our irrevocable transferable Letter of Credit in your favor
available by your drafts drawn at sight on us and accompanied by the document
specified below:
Document required:
Statement of Mocatta Bullion - New York, a division of Standard Chartered Bank,
executed by an officer certifying the following:
"The amount of the draft attached is an amount which the drawer became
entitled to draw hereunder pursuant to the Silver Lease Agreement dated
April 9, 1996 (and as amended from time to time) between Advanced
Metallurgy, Inc. and Mocatta Bullion - New York, a division of Standard
Chartered Bank and remains unpaid."
Partial drawings are permitted under this Letter of Credit. The amount available
for drawing under this Letter of Credit shall be reduced by the amount of any
drawing hereunder, immediately after such drawing.
This Letter of Credit is transferable in its entirety to any transferee, and may
be successively transferred, in each case at no cost to the transferor or the
transferee.
We hereby engage with you and your transferees that drafts under and in
compliance with this Letter of Credit will be duly honored upon due presentation
to us on or before the expiration date of the Letter of Credit of sight drafts
by you or them accompanied by the statement described
EXHIBIT I
above which, after transfer hereof, may, if you have so advised us (which advise
we will confirm to the transferee), be the statement of the transferee, executed
by one of its officers.
Except as otherwise expressly stated herein, this Letter of Credit is subject to
the Uniform Customs and Practice for Documentary Credits (1983 Revision),
International Chamber of Commerce Publication No. 500.
We agree that if this Letter of Credit would otherwise expire during an
interruption of the business of this Bank by Act of God, riot, civil commotion,
insurrection, war or any other cause beyond its control or by any strike or
lockout, then in such event this Letter of Credit shall expire on the fifteenth
business day after the day when this Bank shall be reopened for business and the
conditions causing such interruption of the business of this Bank shall have
been removed or eliminated.
By:
- ------------------------------- ------------------------------
Authorized Countersignature Authorized Signatory