EXHIBIT 10.16(1)
FIRST AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT
DATED MAY 27, 1997
This First Amendment to Amended and Restated Consignment Agreement
(hereinafter, the "Amendment") is made as of this day of August, 1997 by and
between DODUCO, GmbH, a German corporation with its principal office in
Pforzheim, Germany, DODUCO ESPANA, SA, a Spanish corporation with its principal
office in Madrid, Spain (hereinafter, individually and collectively, the
"Consignee"), TECHNITROL, INC., a Pennsylvania corporation with its principal
office in Trevose, Pennsylvania (hereinafter, "Technitrol") and RHODE ISLAND
HOSPITAL TRUST NATIONAL BANK, a national banking association (hereinafter, the
"Consignor"), in consideration of the mutual covenants contained herein and the
benefits to be derived herefrom. Unless otherwise specified herein, all
capitalized terms shall have the same meaning as set forth in the Agreement (as
defined hereinbelow).
W I T N E S S E T H:
WHEREAS, the Consignee and Technitrol executed and delivered to the
Consignor a certain Amended and Restated Consignment Agreement dated May 27,
1997 (hereinafter, the "Agreement") pursuant to which, among other things, the
Consignor established in favor of the Consignee a consignment arrangement with a
current Consignment Limit of $10,000,000.00; and
WHEREAS, the Consignee has requested that the Consignor increase the
Consignment Limit to $19,000,000.00 and further requested that the Consignor
continue to consign Precious Metals in accordance with the terms of the
Agreement; and
WHEREAS, the Consignor has indicated its willingness to do so, BUT ONLY on
the terms and conditions contained in this Amendment; and
WHEREAS, the Consignee has determined that this Amendment is in the
Consignee's best interest.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Consignee and Technitrol acknowledge and agree that the
Consignee and Technitrol have no offsets, defenses, claims or counterclaims
against the Consignor with respect to the Agreement or any other document,
instrument or agreement executed and delivered by the Consignee or Technitrol to
the Consignor in connection therewith and, to the extent that the Consignee or
Technitrol have any such offsets, defenses, claims or counterclaims, the
Consignee and Technitrol hereby affirmatively WAIVE any such offsets, defenses,
claims or counterclaims and specifically RELEASE the Consignor from any
liability on account thereof.
2. The Agreement is hereby amended to increase the Consignment Limit
from $10,000,000.00 to $19,000,000.00.
3. Technitrol hereby acknowledges and agrees that the Unlimited
Guaranty dated as of December 16, 1996 guarantying the Obligations (as defined
therein) of the Consignee to the Consignor is hereby ratified and confirmed in
all respects and shall remain in full force
and effect as originally written guarantying the prompt, punctual and faithful
payment and performance of all obligations and liabilities of the Consignee to
the Consignor including, without limitation, those obligations and liabilities
of the Consignee to the Consignor under the Agreement, as amended hereby.
4. This Amendment and all other documents, instruments or agreements
executed in connection herewith incorporate all discussions and negotiations
between the Consignee, Technitrol, and the Consignor, either expressed or
implied, concerning the matters included herein, any statute, custom, or usage
to the contrary notwithstanding. No such discussions or negotiations shall
limit, modify or otherwise affect the provisions hereof. No modification,
amendment, or waiver of any provision of this Amendment or the Agreement or any
provision under any other agreement, document or instrument between the
Consignee, Technitrol and the Consignor shall be effective unless executed in
writing by the party to be charged with such modification, amendment or waiver,
and if such party be the Consignor, then by a duly authorized officer thereof.
5. Except as specifically modified herein, the Agreement shall
remain in full force and effect as originally written and the Consignee and
Technitrol hereby ratify and confirm all terms and conditions contained therein
and further ratify and reaffirm all representations and warranties made therein
as of the date hereof.
6. This Amendment shall be construed in accordance with and governed
by the laws of the State of Rhode Island and shall take effect as a sealed
instrument.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the date first written above.
DODUCO, GmbH
By: /s/ Albert Thorp, III
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Name: Albert Thorp, III
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Title: Director
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DODUCO ESPANA, SA
By: /s/ Albert Thorp, III
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Name: Albert Thorp,
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Title: Director
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TECHNITROL, INC.
By: /s/ Albert Thorp, III
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Name: Albert Thorp, III
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Title: V.P. - Finance and CFO
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RHODE ISLAND HOSPITAL TRUST NATIONAL BANK
By: /s/ Kathryn L. Fraser
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Name: Kathryn L. Fraser
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Title: Vice President
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POWER OF ATTORNEY
I, Friedheim Seubert of Doduco Espana S.A., hereby authorize:
Albert Thorp, III
to execute and deliver on behalf of Doduco Espana S.A., a consignment agreement
and such other documents as Mr. Thorp deems appropriate in connection therewith,
and further authorize:
Raymond J. Matsey
to serve as a representative of Doduco Espana S.A. for purposes of facilitating
the consignment transactions contemplated by the consignment agreement.
Dated as of November __, 1996
DODUCO ESPANA, S.A.
By:
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Name: Friedhelm Seubert
Title: General Manager
POWER OF ATTORNEY
I, Friedheim Seubert of Doduco Espana S.A., hereby authorize:
Albert Thorp, III
to execute and deliver on behalf of Doduco Espana S.A., a consignment agreement
and such other documents as Mr. Thorp deems appropriate in connection therewith,
and further authorize:
Raymond J. Matsey
to serve as a representative of Doduco Espana S.A. for purposes of facilitating
the consignment transactions contemplated by the consignment agreement.
Dated as of November __, 1996
DODUCO ESPANA, S.A.
By:
----------------------------
Name: Friedhelm Seubert
Title: General Manager
POWER OF ATTORNEY
I, Friedheim Seubert of Doduco Espana S.A., hereby authorize:
Albert Thorp, III
to execute and deliver on behalf of Doduco Espana S.A., a consignment agreement
and such other documents as Mr. Thorp deems appropriate in connection therewith,
and further authorize:
Raymond J. Matsey
to serve as a representative of Doduco Espana S.A. for purposes of facilitating
the consignment transactions contemplated by the consignment agreement.
Dated as of November __, 1996
DODUCO ESPANA, S.A.
By:
--------------------------------
Name: Friedhelm Seubert
Title: General Manager