EXHIBIT 10.16
AMENDED AND RESTATED CONSIGNMENT AGREEMENT
AMENDED AND RESTATED CONSIGNMENT AGREEMENT ("Agreement") made as of the 27
day of May, 1997, by and among
RHODE ISLAND HOSPITAL TRUST NATIONAL BANK, a national banking association,
with its principal place of business at One Hospital Trust Plaza,
Providence, Rhode island ("Bank"), and
DODUCO, GmbH, a corporation organized and existing under the laws of
Germany, with its principal office in Pforzheim, Germany ("GmbH"); and
DODUCO ESPANA, SA, a corporation organized and existing under the laws of
Spain, with its principal office in Madrid, Spain ("Espana"); and
TECHNITROL, INC., a corporation organized and existing under the laws of
the State of Pennsylvania with its principal office at 1210 Northbrook
Drive, Suite 385, Trevose, Pennsylvania 19053 ("Parent")
in consideration of the mutual covenants herein contained and benefits to be
derived herefrom.
W I T N E S S E T H:
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WHEREAS, GmbH and Espana (collectively, the "Consignees" and each a
"Consignee") have requested the Bank to deliver Precious Metal (as defined
herein) on consignment to Consignees; and
WHEREAS, the Bank has previously entered into a Consignment Agreement with
Doduco, GmbH and the Parent (the "Existing Agreement"), which the parties desire
to amend and restate-in its entirety as provided herein; and
WHEREAS, Consignees are the wholly-owned subsidiaries of Doduco Holdings
GmbH, which is a wholly-owned subsidiary of Technitrol International, Inc.,
which is a wholly-owned subsidiary of Technitrol Delaware, Inc., which is a
wholly-owned subsidiary of the Parent; and
WHEREAS, it is in the Parent's financial and other interest that the Bank
enter into this Agreement and provide Precious Metal to Consignee; and
WHEREAS, as a precondition to the effectiveness of this Agreement, the
Parent shall execute and the Bank a certain instrument of Guaranty pursuant to
which the Parent shall unconditionally guaranty the payment and performance of
all obligations and liabilities of each Consignee to the Bank, which Guaranty
shall be in form and substance satisfactory to the Bank; and
WHEREAS, Bank is willing to make such consignments on the terms and
conditions of this Agreement.
NOW, THEREFORE, to effectuate such consignment arrangement, Bank, the
Consignees and the Parent agree as follows:
1. The Consignment.
1-1 Establishment of Consignment. Provided (i) no notice of election to
terminate this Agreement has been given by any party and (ii) no Suspension
Event has occurred hereunder, Bank will Deliver from time to time to each
Consignee Precious Metal under the terms and conditions of this
Agreement. The amount of Precious Metal to be Delivered by the Bank to the
Consignees in the aggregate shall in no event exceed the Consignment Limit.
1-2 Deliveries in Excess of Consignment Limit. (a) In the event that the
amount of troy ounces or Fair Market Value of Precious Metal at any time
requested by the Consignees when added to the then outstanding Consigned
Precious Metal at all locations to both Consignees exceeds the Consignment
Limit, the Bank shall have no obligation to Deliver the Precious Metal so
requested. Notwithstanding the foregoing, the Delivery of Precious Metal by the
Bank in excess of the Consignment Limit is for the benefit of the Consignees and
shall not affect the obligations of the Consignees hereunder. The making of any
Deliveries in excess of the Consignment Limit on any one occasion shall not
obligate the Bank to make any such Deliveries on any other occasion or to permit
Precious Metal in excess of the Consignment Limit to remain outstanding, nor
shall constitute a modification or waiver of the Bank's rights under Section
1-2(b) hereof.
(b) If for any reason the number of troy ounces or Fair Market Value (or
unpaid Purchase Price in the case of Consigned Precious Metal for which the
Purchase Price has been agreed or established pursuant to Section 2-4 hereof,
but payment has not been received by Bank) of all Consigned Precious Metal at
any time exceeds the Consignment Limit, the Consignees shall immediately
Redeliver to Bank, or shall purchase and pay for, Precious Metal of a quantity,
or with a Fair Market Value, sufficient to eliminate such excess.
1-3 No Representations or Warranties. BANK MAKES NO WARRANTY OF
MERCHANTABILITY IN RESPECT TO PRECIOUS METAL CONSIGNED OR SOLD UNDER THIS
AGREEMENT NOR OF FITNESS FOR ANY PARTICULAR PURPOSE NOR ANY OTHER WARRANTIES,
EXPRESS OR IMPLIED, except that Bank does warrant to the Consignees or the
Parent that all Precious Metal will be of the fineness stated in the Definition
section hereof.
1-4 Procedures to Request Precious Metal. (a) Each Consignee shall give
Bank at least one full Business Day's notice of its requirements for Precious
Metal. Each such request shall specify delivery location and identity of
Consignee and shall be in such manner as from time to time may be acceptable to
the Bank.
(b) Subject to the terms and conditions of this Agreement, the Bank shall
endeavor to Deliver to a Consignee the Precious Metal so requested, as follows:
(i) If such request is received by 12:00 Noon on a Business Day, by
the close of business on the next Business Day.
(ii) If such request is received after 12:00 Noon on a Business Day,
by the close of business on the second Business Day thereafter.
(c) There shall not be any recourse to, nor any liability of, the Bank on
account of any delay in the Bank's Delivery of any Precious Metal requested by a
Consignee, or the failure of the Bank to Deliver any such Precious Metal by
reason of an Act of God or other catastrophe, force majeure, lack of supply,
delay in transportation, war or other hostilities, strike, lockout, epidemic,
acts of government or other public authority, requirements of any regulatory
board, agency or authority, unavoidable casualties or any other causes beyond
Bank's control.
(d) The Bank may rely upon any request for Precious Metal which the Bank,
in good faith, believes to have been made by a person duly authorized to act on
behalf of a Consignee and may decline to make any requested Delivery pending the
Bank's being furnished with such documentation concerning that person's
authority to act as may be satisfactory to the Bank.
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(e) A request for a Delivery of Precious Metal by a Consignee shall
constitute a certification by such Consignee that as of the date of such
request, each of the following is true and correct:
(i) There has been no material adverse change in such Consignee's
financial condition from the most recent financial information furnished the
Bank pursuant to this Agreement; and
(ii) No Suspension Event is then existing.
1-5 Delivery of Precious Metal. All Deliveries of Precious Metal by Bank
will be made to a Consignee at such locations as may be approved by Bank, such
Deliveries to be.-on terms and conditions satisfactory to Bank and such
Consignee. At the time of Delivery, Bank shall provide the Consignee with
particulars of the total quantity of the Precious Metal being delivered to such
Consignee. A duly authorized officer of the Consignee receiving any Delivery
shall give a receipt to Bank for the same in a form satisfactory to the Bank.
All shipping expenses (including insurance) shall be borne by the Consignee, and
any such expenses paid or incurred by Bank shall be reimbursed by the Consignee
immediately in the same manner as payments under Section 2-2, hereof.
1-6 Title. Title to Consigned Precious Metal shall remain in Bank and
shall not vest in the Consignee until Bank has received payment for the
Consigned Precious Metal as required by Section 2 of this Agreement. Upon each
Precious Metal Delivery, the Consignee shall bear the entire risk of loss,
theft, damage or destruction of the Consigned Precious Metal from any cause
whatsoever, whether or not insured, and the Consignee agrees to hold the
Consigned Precious Metal in trust for Bank and in accordance with the provisions
of Section 8-11 hereof, to indemnify and hold harmless Bank against any and all
liabilities, damages, losses, costs, expenses, suits, claims, demands or
judgments of any nature (including, without limitation, attorneys' fees and
expenses) arising from or connected with any loss, theft, damage or destruction
of the Consigned Precious Metal.
1-7 Consignment Account. (a) An account, or accounts (hereinafter, the
"Consignment Account") may be opened on the books of the Bank, in which
Consignment Account a record may be kept of all Deliveries made by the Bank to
each Consignee under or pursuant to this Agreement and of all payments made by,
or credits to, the Consignees thereon.
(b) The Bank may also keep a record or records (either in the Consignment
Account or elsewhere, as the-Bank may from time to time elect) of all fees,
service charges, costs, expenses and other debits owed the Bank hereunder and of
all credits against the amounts so owed.
(c) All credits against each Consignee's liabilities to the Bank shall be
conditional upon final payment to the Bank of the items giving rise to such
credits, The amount of any item credited against such liabilities which is
charged back against the Bank for any reason or is not so paid shall be added to
the Consignment Account of such Consignee.
(d) The Bank shall provide each Consignee with a monthly statement of the
quantity of Consigned Precious Metal (in whatever form) held by such Consignee.
If a Consignee does not agree with the information reported in the statement,
such Consignee shall give notice of such disagreement to Bank within fifteen
(15) days of the date of receipt of such statement. if a Consignee fails to give
notice to Bank within such fifteen (15) day period, such Consignee shall be
deemed to have affirmed the accuracy of the information reported in the
statement and to have waived any claim such Consignee may have by reason of a
dispute as to such statement.
1-8 Consignment Fees. (a) In addition to all other payments required
hereunder, each Consignee agrees to pay to Bank Consignment Fees for Bank's
services under this Agreement, such Consignment Fees to be accrued on a daily
basis and paid to Bank within tan (10) days of the date of
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Bank's monthly invoice therefor. Each Consignee expressly authorizes Bank to
charge such Consignee's account with Bank for the amount of such Consignment
Fees.
(b) As to Consignment Fees evidenced by a confirmation in the form of
Exhibit A attached hereto, the provisions of each such confirmation (absent
manifest error) shall be binding and shall supersede any terms hereof not
consistent with such provisions. The Consignee agrees to examine each such
confirmation and, in the event of error therein, to notify Bank of such error by
telecopy (with signature) within one (1) Business Day after such Consignee's
receipt thereof (the Consignee's being conclusively deemed to have waived any
such error in the absence of such notification).
(c) In the event that any Redelivery or Purchase Price payment under this
Agreement results in a reduced return to Bank because the effective date of
Redelivery and payment is earlier than the date(s) agreed to and confirmed under
the terms of this Agreement for the maturity of specified Consignment Fees, then
the Consignee shall promptly pay Bank, upon its demand, amounts necessary to
compensate Bank for such reduced return.
2. Purchase Price; Payments.
2-1 Right to Purchase. In addition to each Consignee's obligation to
purchase Consigned Precious Metal in accordance with the provisions of Section
1-2(b) hereof, during the term of this Agreement, each Consignee shall have the
right to purchase any Consigned Precious Metal. To exercise the right, a duly
authorized officer of a Consignee shall give notice to a duly authorized officer
of Bank that such Consignee is purchasing specified quantities of Consigned
Precious Metal. The parties' duly authorized officers shall mutually agree on a
Purchase Price for the Consigned Precious Metal within one Business Day after
the furnishing of such notice. A duly authorized officer of Bank shall confirm
such Consignee's notice in writing.
2-2 Payment of Purchase Price. A Consignee shall pay the full Purchase
Price, plus any applicable sales, use or other taxes, to Bank within two (2)
Business Days of the date of the fixing of such Purchase Price. The Consignment
Fees payable under Section 1-8 hereof shall continue in effect until such
Purchase Price is paid in full. Payment of the Purchase Price and all other
amounts due by a Consignee to Bank under this Agreement shall be made in the
following manner: (i) by bank wire to the Federal Reserve Bank of Boston for the
account of Bank, (ii) by a Consignee's authorizing Bank to charge its account
with Bank, or (iii) by other means which Bank approves in writing. If Bank in
its discretion grants payment terms different from the foregoing for particular
purchases, then the Purchase Price shall not be deemed to be paid in full for
the purposes of this Agreement until all payments under such terms have been
made.
2-3 Removal of Consigned Precious Metal Before Purchase. No Consigned
Precious Metal shall be removed from a Consignee's authorized locations prior to
the fixing of the Purchase Price for such Consigned Precious Metal. If,
notwithstanding the provisions of the foregoing sentence, Consigned Precious
Metal is removed from such premises prior to the fixing of the Purchase Price
therefor, without waiving any Event of Default occasioned thereby, the Bank
shall be entitled to immediately collect from such Consignee with respect to
such Precious Metal an amount determined in accordance with the provisions of
Section 2-4 hereof.
2-4 Purchase Price in Absence of Agreement. In the event that the Bank and
a Consignee are unable to agree upon the Purchase Price for any Consigned
Precious Metal (whether for purchases pursuant to Section 1-2(b), 2-1 hereof, or
otherwise) within one Business Day of the date of the requested or deemed
purchase, such Consignee shall pay the Bank the price based on the Bank's spot
market price on the date of purchase.
3. Redelivery.
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At any time prior to the termination of this Agreement, any or all of the
amount of the Consigned Precious Metal may be Redelivered by a Consignee to the
Bank. Such Consignee shall furnish the Bank with one Business Day's notice of
any intended Redelivery. Upon receipt of any Consigned Precious Metals from a
Consignee in compliance with the terms of this Section, the Bank shall credit
the Consignment Account of such Consignee for the amount so Redelivered.
4. Representations, Warranties and Covenants. To induce the Bank to enter
into this Agreement, the consignees each warrant, represent and covenant as
follows:
4-1 Locations. The Consigned Precious Metal, and the books, records, and
papers of the Consignees pertaining thereto, are kept and maintained at the
principal office of the Parent and each Consignee, respectively, and at those
other locations to which the Bank may hereafter agree in writing.
4-2 Insurance. Each Consignee shall have and maintain at all times
insurance covering such risks, in such amounts, containing such terms, in such
form, for such periods and written by such companies as may be satisfactory to
the Bank. All such insurance shall provide for a minimum of twenty (20) days
written notice of cancellation to the Bank and all such insurance which may
cover any portion of the Consigned Precious Metal shall include an endorsement
in favor of the Bank, which endorsement shall provide that the insurance, to the
extent of the Bank's interest therein, shall not be impaired or invalidated, in
whole or in part, by reason of any act or neglect of a Consignee or by the
failure of a Consignee to comply with any warranty or condition of the policy.
Upon the Bank's request, the Consignees shall each furnish the Bank with a true
and complete copy of all insurance policies required to be maintained hereunder.
4-3 Line of Business. The Consignees shall not engage in any business
other than the business in which they are each currently engaged or a business
reasonably related thereto.
4-4 Additional Assurances. The Consignees and the Parent shall each
execute and deliver to the Bank such instruments, documents, and papers and
shall do all such things from time to time hereafter as the Bank reasonably may
request to carry into effect the provisions and intent of this Agreement and to
comply with all applicable statutes and laws.
4-5 Maintain Records. The Consignees and the Parent each (a) shall at all
times keep proper books of account, in which full, true and accurate entries
shall be made of all each Consignee's transactions and (b) shall at all times
keep accurate and current records of the Consigned Precious Metals.
4-6 Access to Precious Metals. The Consignees shall each accord the Bank
and the Bank's representatives-such access from time to time during normal
business hours as the Bank and such representatives may reasonably require to
all properties owned or over which each Consignee has control in which Consigned
Precious Metal may be located. The Bank and the Bank's representatives shall
have the right, and each Consignee will permit the Bank and such representatives
from time to time during normal business hours as the Bank and such
representatives may' reasonably request, to examine and inspect the Consigned
Precious Metal, and to examine, copy, and make excerpts from any and all of each
Consignee's books, records, papers and files relating to the Consigned Precious
Metal. Prior to the occurrence of an Event of Default as defined herein, the
Bank agrees to provide a Consignee with twenty-four (24) hours advance notice of
any pre-default inspection.
4-7 Financial Reporting. (a) The Parent shall furnish the Bank with:
(i) annually, within 90 days following the end of the Parent's
fiscal year, the consolidated and consolidating annual financial statements of
the Parent and its subsidiaries, which financial statements shall have been
prepared by and bear the unqualified opinion of the Parent's independent
certified public accountants; and
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(ii) copies of all reports and financial information filed with the
Securities and Exchange Commission, including, without limitation, the Parent's
Form 10-Q and 10-K as and when filed.
(b) At least once each year, and weekly upon and after the occurrence of
an Event of Default until cured or waived, each Consignees shall provide Bank
with a written confirmation, signed by a duly authorized officer of such
Consignee, of the quantity and location of Consigned Precious Metal as of the
date of such confirmation.
(c) The Parent and the Consignees shall each furnish the Bank with such
other financial information as the Bank may reasonably request from time to
time.
5. Obligations of Parents and Subsidiaries.
(a) Agreement to Pay and Perform-Parent. The Parent does hereby agree that
if any Consignee does not pay or perform all of its obligations to the Bank in
accordance with the terms hereof, or if any and all sums which are now or may
hereafter become due from a Consignee to the Bank hereunder are not paid by such
Consignee in accordance with their terms, the Parent will immediately make such
payments and perform such obligations.
(b) Nature of Parent's Obligations. The liability of the Parent hereunder
shall be direct and immediate and not conditional or contingent upon the pursuit
of any remedies against the Consignees by the Bank. The obligations of the
Parent and each Consignee are joint and several; provided however, that the
release by the Bank of any obligor shall not release any other obligor.
6. Events of Default, Rights and Remedies of Bank Upon Default.
6-1 Events of Default. The occurrence of any events described in this
Article 6 shall constitute an "Event of Default" hereunder:
(a) Failure to Pay. The failure by any Consignee to pay any amount when
due under this Consignment Agreement.
(b) Failure to Perform Covenant or Liability. The failure by any Consignee
to promptly, punctually, faithfully and timely perform, discharge or comply with
any covenant, liability or obligation under this Agreement, not described in
Section 6-1(a) above within five (5) Business Days after notice from the Bank.
(c) The Failure by any Consignee to Generally Pay its Debts as they
Mature. Adjudication of bankruptcy or insolvency relative to any Consignee; the
entry of an order for relief or similar order with respect to any Consignee in
any proceeding pursuant to the Bankruptcy Code (Title 11, United States Code) or
any bankruptcy or similar law of the countries of Germany or Spain; the filing
of any complaint, application, or petition by or against either Consignee
initiating any matter in which such Consignee is or may be granted any relief
from the debts of such Consignee pursuant to the Bankruptcy Code or any other
insolvency statute or procedure of the countries of Germany or Spain.
(d) Business Failure. Any act by, against or relating to any Consignee, or
its properties or assets, which act constitutes the application for, consent to,
or sufferance of the appointment of receiver, trustee, or other person, pursuant
to court action or otherwise, over all, or any part of such Consignee's
property; the granting of any trust mortgage or execution of an assignment for
the benefit of creditors of any Consignee, or the occurrence of any other
voluntary or involuntary liquidation or extension of debt agreement for any
Consignee; or the offering by or entering into by any Consignee of any
composition, extension or other arrangements seeking relief from or extension of
the debts of such Consignee or the
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initiation of any other judicial or nonjudicial proceeding or agreement by,
against, or including any Consignee which seeks or intends to accomplish a
reorganization or arrangement with creditors.
(e) Misrepresentation. The determination by the Bank that any
representation or warranty at any time made by any Consignee to the Bank was not
true or complete in all material respects when given.
(f) Default Under Other Agreements. The occurrence of any breach or
default under any agreement between the Bank and any Consignee or instrument or
paper given the Bank by any Consignee, whether such agreement, instrument or
paper now exists or hereafter arises.
(g) Material Adverse Change. There shall occur any material adverse change
in the financial condition of any Consignee. For the purposes of this
subparagraph, "material adverse change" shall mean a Consignee's failure to pay
any indebtedness to any party in excess of $1,000,000.00 when such failure has
not been satisfied within thirty (30) days.
(h) Default-by Parent. The occurrence of any of the foregoing Events of
Default with respect to Parent as if the Parent were the "Consignee" described
therein.
6-2 Rights and Remedies of Bank Upon Occurrence of Event of Default. Upon
the occurrence of any Event of Default, the Bank shall have the following rights
and remedies:
(a) Upon the occurrence of any Event of Default described in Section 6-1,
any and all liabilities, obligations and indebtedness of the Consignees and/or
the Parent to the Bank shall become due and payable, without any further act on
the part of the Bank. Upon the occurrence of any other Event of Default, any and
all liabilities, obligations, and indebtedness of the Consignees and/or the
Parent to the Bank shall become immediately due and payable, at the option of
the Bank, without presentment, demand, protest or notice, each of which are
hereby waived by the Consignees and the Parent. The occurrence of any such Event
of Default shall also constitute, without notice of demand, a default under all
other agreements between either of the Consignees and/or the Parent and the Bank
and instruments or papers given the Bank by either of the Consignees and/or the
Parent, whether such agreements, instruments, or papers now exist or hereafter
arise.
(b) The Bank may declare any obligation to Deliver Precious Metal
hereunder terminated;
(c) The Bank may take possession of all or any portion of the Consigned
Precious Metal. To that end, the Consignees shall assemble all of the Consigned
Precious Metal at such place or places as may be reasonably requested by the
Bank;
(d) The Bank may sell, lease, or otherwise dispose of any or all of the
Consigned Precious Metal, including any or all of the Consignees assets
containing Consigned Precious Metal, in its then condition or following such
preparation or processing as the Bank deems advisable; and
(e) The Bank may exercise all of its rights and remedies under the Uniform
Commercial Code or otherwise, either by suit in equity or by action of law, or
both, or for the specific performance of any covenant, agreement or other
provision contained herein, or to enforce the payment of any liabilities,
obligations, or indebtedness of the Consignees and/or the Parent to the Bank or
any other legal right or remedy.
6-3 Rights and Remedies Cumulative. The rights, remedies, powers,
privileges and discretions of the Bank hereunder shall be cumulative and not
exclusive of any rights or remedies which it otherwise would have. No delay or
omission by the Bank in exercising or enforcing any of the Bank's rights or
remedies shall operate as of, or constitute a waiver thereof. No waiver by the
Bank of any Event
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of Default shall operate as a waiver of any other Event of Default hereunder. No
single or partial exercise of any of the Bank's rights or remedies and no
expressed or implied agreement or transaction of whatever nature entered into
between the Bank and either of the Consignees and/or the Parent, at any time,
shall preclude the other or further exercise of the Bank's rights and remedies.
No waiver by the Bank of any of the Bank's rights or remedies on any one
occasion shall be deemed a waiver on any subsequent occasion, nor shall it be
deemed a continuing waiver. All of the Bank's rights and remedies are cumulative
and are not alternative or exclusive, and may be exercised by the Bank at such
time or times and in such order of preference as the Bank in its sole discretion
may determine. The Bank's rights and remedies may be exercised without resort or
regard to any other source of satisfaction the liabilities, obligations of
indebtedness of the Consignees and/or the Parent to the Bank.
7. Termination.
Unless otherwise terminated in accordance with the terms hereof, this
Agreement shall continue until either Bank or a Consignee elects to terminate
this Agreement upon thirty (30) days written notice to the other party. Unless
otherwise mutually agreed in writing by Bank and a Consignee, no Delivery of
Precious Metal to a Consignee will be made following the giving of notice by
either Bank or such Consignee of its election to terminate this Agreement.
Termination of this Agreement shall not affect a Consignee's or the Parent's
duty to pay and perform in full its obligations to Bank hereunder. On the
effective date of the termination of this Agreement, a Consignee shall either
Redeliver, or purchase and pay for all Consigned Precious Metals which Bank has
previously Delivered to such Consignee and which has not been paid for or
Redelivered, the price to be based on Bank's spot market price on the date of
such purchase and shall reimburse Bank for any and all outstanding fees, costs,
expenses and other obligations of such Consignee to Bank.
8. Miscellaneous.
8-1 Authority to Charge Account. The Parent and the Consignees each
authorize the Bank from time to time to charge any demand deposit account(s)
which any of them may maintain with the Bank for the purpose of paying any
amounts which may become due to the Bank hereunder.
8-2 Late Charges. The Parent and the Consignees each agree to pay upon
demand late charges on any sum or amount not paid when due hereunder at a rate
per annum equal to the aggregate of the Base Rate of The First National Bank of
Boston, plus four and three quarters percent (4-3/4%) per annum.
8-3 True Consignment. The parties hereto intend that this Agreement shall
provide for a true consignment and that all transactions hereunder shall
constitute true consignments of Precious Metal. If, notwithstanding the
foregoing, a court of competent jurisdiction determines that either Consignee
has any right or interest in the Precious Metal other than as consignee, the
Bank shall have, and is hereby granted by such Consignee, a security interest in
the Precious Metal now or hereafter Delivered by the Bank to such Consignee. In
such event, the Bank shall have all rights and remedies of a secured party under
the Uniform Commercial Code or under applicable laws of the countries of Germany
and/or Spain.
8-4 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of Rhode Island without resort to its
conflicts of law rules.
8-5 Notice Addresses. All notices, demands and other communications in
respect of this Agreement (other than a request for Delivery of Precious Metal)
shall be made to the Consignees and the Parent at the Parent's address set forth
in the preamble of this Agreement, and to the Bank in care of Rhode island
Hospital Trust National Bank, One Hospital Trust Plaza, Providence, Rhode Island
02903, Attention: Precious Metals, each of which may be changed upon seven days
written notice to all others given by certified mail return receipt requested.
Except as otherwise specifically provided herein, notices
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shall be deemed made and correspondence received, as follows (all times being
local to the place of delivery or receipt):
(i) By mail: the sooner of when actually received or Three (3) days
following deposit in the United States mail, postage prepaid.
(ii) By overnight express delivery: the Business Day following the
day when sent.
(iii) By Hand: if delivered on a Business Day after 9:00 AM and no
later than Three (3) hours prior to the close of customary business hours of the
recipient, when delivered. Otherwise, at the opening of the then next Business
Day.
(iv) By Facsimile transmission: if sent on a Business Day after 9:00
AM and no later than Three (3) hours prior to the close of customary business
hours of the recipient, one (1) hour after being sent. Otherwise, at the opening
of the then next Business Day.
Rejection or refusal to accept delivery and inability to deliver because
of a changed address or Facsimile Number for which no due notice was given shall
each be deemed receipt of the notice sent.
8-6 Successors and Assigns. This Agreement shall be binding upon the
Consignees, the Parent and their respective successors, and assigns and shall
inure to the benefit of the Bank and the Bank's successors and assigns provided,
however, that the rights of the Consignees and/or the Parent under this
Agreement may not be assigned to any third party without the prior written
consent of the Bank.
8-7 Severability. Any determination that any provision of this Agreement
or any application thereof is invalid, illegal, or unenforceable in any respect
in any instance shall not affect the validity, legality, or enforceability of
such provision in any other instance, or the validity, legality, or
enforceability of any other provision of this Agreement.
8-8 Amendments, Course of Dealing. (a) This Agreement incorporates all
discussions and negotiations among the Consignees, the Parent and the Bank,
either express or implied, concerning the matters included herein, any custom,
usage, or course of dealings to the contrary notwithstanding. No such
discussions, negotiations, custom, usage, or course of dealings shall limit,
modify, or otherwise affect the provisions thereof.
(b) No consent, modification, amendment, or waiver of any provision of
this Agreement shall be effective unless executed in writing by or on behalf of
the party to be charged with such modification, amendment, or waiver.
8-9 Costs and Expenses. The Consignees and the Parent shall jointly and
severally pay on demand all reasonable expenses which may be incurred by the
Bank with respect to the enforcement of the Bank's rights hereunder.
8-10 Consent to Jurisdiction. The Consignees and the Parent each agree
that any legal action, proceeding, case, or controversy against the Consignees
or the Parent with respect to this Agreement may be brought in the state courts
of Rhode Island or in the United States District Court, District of Rhode
Island, as the Bank may elect in the Bank's sole discretion. Nothing herein
shall affect the right of the Bank to bring legal actions or proceedings in any
other competent jurisdiction.
8-11 Indemnification. In addition to any other indemnities herein
provided, the Consignees and the Parent shall each indemnify, defend, and hold
the Bank and any employee, officer, or agent of the Bank (each, an "Indemnified
Person") harmless of and from any claim brought or threatened against any
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indemnified Person by any Consignee, the Parent or any other person (as well as
from attorneys' fees and expenses in connection therewith) on account of the
Bank's relationship with the Consignees or the Parent (each of which may be
defended, compromised, settled, or pursued by the Indemnified Person with
counsel of the Bank's selection but at the expense of the Consignees and the
Parent) other than any claim as to which a final determination is made in a
judicial proceeding (in which the Bank and any other indemnified Person has had
an opportunity to be heard), which determination includes a specific finding
that the Indemnified Person seeking indemnification had acted in a-grossly
negligent manner or in actual bad faith. The within indemnification shall
survive payment of the amounts owed under this Agreement and/or any termination,
release, or discharge executed by the Bank in favor of each Consignee or the
Parent under this Agreement.
8-12 Waivers. (a) The Consignees and the Parent each make each of the
waivers included in Subsection (b), below, knowingly, voluntarily, and
intentionally, and understands that the Bank, in entering into the arrangements
contemplated hereby is relying on such waivers.
(b) THE CONSIGNEES AND THE PARENT RESPECTIVELY WAIVE THE FOLLOWING:
(i) Except as otherwise specifically required hereby, notice of
non-payment, demand, presentment, protest and all forms of demand and notice.
(ii) THE RIGHT TO A JURY IN ANY TRIAL OF ANY CASE OR CONTROVERSY IN
WHICH THE BANK IS OR BECOMES A PARTY (WHETHER SUCH CASE OR CONTROVERSY IS
INITIATED BY OR AGAINST THE BANK OR IN WHICH THE BANK IS JOINED AS A PARTY
LITIGANT), WHICH CASE OR CONTROVERSY ARISES OUT OF OR IS IN RESPECT OF, ANY
RELATIONSHIP AMONGST OR BETWEEN THE CONSIGNEES, THE PARENT AND THE BANK.
(iii) Any claim to consequential, special, or punitive damages.
8-13 Amendment of Existing Agreement. This agreement amends and restates
in its entirety the Existing Agreement; the repayment of all liabilities and
obligations thereunder shall hereafter be deemed due to the Bank and governed by
this Agreement.
IN WITNESS WHEREOF, the Bank, the Consignees and the Parent have caused
this Agreement to be duly executed by their duly authorized officers, all as of
the day and year first above written.
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
By: /s/ Kathryn L. Fraser
----------------------------------------
Title: Vice President
-------------------------------------
DODUCO, GmbH
By: /s/ Albert Thorp, III
-----------------------------------------
Title: By Virtue of Power of Attorney of
--------------------------------------
Ferdinand Reischitz Managing Director
--------------------------------------------
-10-
DODUCO ESPANA, SA
By: /s/ Albert Thorp, III
-----------------------------------------
Title: Director
--------------------------------------
TECHNITROL, INC.
By: /s/ Albert Thorp, III
-----------------------------------------
Title: Vice President - Finance
--------------------------------------
-11-
EXHIBIT A
Consignment Fees Confirmation
DATE:
TO: [ ]
ATTN:
FROM: RHODE ISLAND HOSPITAL TRUST NATIONAL BANK
WE CONFIRM THAT WE HAVE CONSIGNED PRECIOUS METAL TO YOU UNDER THE FOLLOWING
TERMS AND CONDITIONS:
TRADE DATE:
METAL: PRECIOUS METAL FINENESS
-------------------- -------------------------
DESTINATION
-------------
AMOUNT: FINE TROY OUNCES
-----------------------------
VALUE DATE:
MATURITY DATE:
FEE: BASIS POINTS, PAYABLE AT MATURITY
--------------------------------
DELIVERY:
RETURN:
SHOULD YOUR UNDERSTANDING OF THIS TRANSACTION DIFFER FROM THE INFORMATION
OUTLINED ABOVE, PLEASE NOTIFY US IMMEDIATELY.
EXHIBIT 10.16
DEFINITIONS
For the purposes of this Agreement:
"Business Day" shall mean any day other than a Saturday, Sunday, or a day
on which banks in Providence, Rhode Island generally are not open to the general
public for the purpose of conducting commercial banking business or on which the
Bank is not open to the general public to conduct business.
"Consignment Fees" shall mean for each day such fees as are mutually
agreed upon by the Bank and A Consignee to be calculated by multiplying the
agreed upon rate by one-three hundred sixtieth (1/360) by the Fair Market Value
of the Consigned Precious Metal for that day.
"Consigned Precious Metal" shall mean Precious Metal which Bank has
consigned to a Consignee pursuant to the terms of this Agreement for which
payment has not been received or which has not been Redelivered to Bank.
"Consignment Limit" shall mean Consigned Precious Metal with a Fair Market
Value (or unpaid Purchase Price in the case of Consigned Precious Metal for
which the Purchase Price has been agreed or established pursuant to section 2-4
hereof but payment has not been received by Bank) equal to $10,000,000.00 in the
aggregate for the Consignees.
"Deliver" or "Delivery" shall mean either actual shipment, creating the
right in a Consignee to demand actual shipment through a writing, instrument or
a statement of account, or Bank's crediting Precious Metal to the account of
such Consignee with one or more third parties when no physical movement thereof
is contemplated by the parties.
"Fair Market Value" on any day shall mean, (i) with respect .to gold, the
London Second Fixing Price, (ii) with respect to silver, the Handy & Harmon Base
Price, (iii) with respect to platinum, the Merc Platinum Price, and (iv) with
respect to palladium, the Merc Palladium Price, each for that day. If no such
price is available for a particular day, the Fair Market Value for such day
shall be the price for the immediately preceding day for which such price is
available.
"Merc" shall mean the New York Mercantile Exchange.
"Precious Metal" shall mean fine gold, fine silver, fine platinum and fine
palladium.
"Purchase Price" shall mean a price to which both parties duly authorized
officers agree and shall be stated in dollars per troy ounce of Precious Metal
content.
"Redeliver" or Redelivery" shall mean that a Consignee deliver to Bank's
principal office, at such Consignee's sole risk and expense, Precious Metal of a
fineness equal to the fineness specified for that Precious Metal and of a type
and quality and in a form acceptable to Bank.
"Suspension Event" shall mean any occurrence which (i) is an Event of
Default; or (ii) would become an Event of Default if the notice and/or the
running of the period of time specified for that occurrence were to be given
and/or were to run and such occurrence were not cured within any applicable
grace period.