EXHIBIT 10.17
CONSIGNMENT AGREEMENT
AGREEMENT dated December 18, 1997 among FLEET PRECIOUS METALS INC., a
Rhode Island corporation ("Consignor") with offices at 000 Xxxxxxxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000; TECHNITROL, INC., a Pennsylvania corporation with offices
at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxx 00000 ("Technitrol")
and ADVANCED METALLURGY, INCORPORATED, a Pennsylvania corporation with offices
at Xxxxxx Corporate Park, 0000 Xxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxx 00000
("Advanced") (Technitrol and Advanced Metallurgy are sometimes hereinafter
individually and collectively referred to as "Customer").
1. Commodities Consigned; Insurance; Title. (a) Commodities consigned
hereunder will consist of (i) gold bullion, minimum degree of fineness of 99.95%
in bars of approximately 400 xxxx ounces, 100 xxxx ounces or 1 kilo each, or in
bags of gold grain of approximately 100 xxxx ounces each; (ii) silver bullion,
minimum degree of fineness of 99.90% in bars of approximately 1,000 xxxx ounces
each; (iii) palladium bullion, minimum degree of fineness of 99.95% in sponge or
plate; and (iv) copper bullion, minimum degree of fineness of 99.35% in
cathodes, wire bars or plate. EXCEPT AS PROVIDED ABOVE, CONSIGNOR MAKES NO
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER, AND
CONSIGNOR DISCLAIMS ALL SUCH WARRANTIES. Commodities shall be consigned in
amounts as requested by Customer from time to time. At the time of such request,
Consignor shall fix, for a period of at least 1 week and not to exceed 1 year,
the consignment rate payable with respect to the requested consignment, and
shall advise, Customer of the date on which such consignment shall be deemed to
be purchased and withdrawn from consignment (the "Payment Date"). At no time
shall the value of consigned commodities exceed (i) $20,000,000; (ii) such limit
as the parties may agree upon; or (iii) such limit as Consignor may approve in
its sole discretion ("Consignment Limit").
(b) Each delivery of commodities shall be at Customer's expense and, if
Customer shall select the carrier for any such delivery, Customer shall bear the
risk of any loss by such carrier. Title to consigned commodities shall remain in
Consignor until commodities are purchased and withdrawn from consignment.
Commodities are deemed to be on consignment until paid for in full, whereupon
title to such commodities shall pass to Customer.
(c) Customer shall deliver to Consignor a letter certifying the names of
persons (each an "Authorized Representative") authorized to transact consignment
and other transactions hereunder. Any person identifying himself or herself as
an Authorized Representative may effect transactions hereunder. Consignor shall
have no obligation to ascertain whether the person is in fact an Authorized
Representative or is in fact authorized to effect the transaction. Consignor may
verify any request for a transaction. Customer authorizes Consignor to record
all requests Consignor may receive from Customer or any person purporting to act
on behalf of Customer.
(d) Consignor is obligated to engage only in transactions involving
commodities in units, fineness and quantities it customarily maintains in its
inventory, but Consignor may from time to time agree to other types of
transactions. Commodities in the possession or control of
Customer or a third party for the account of Customer shall constitute consigned
commodities hereunder notwithstanding such commodities (i) are in alloyed form
or contained in raw materials, work in process or finished goods, (ii) are
delivered to or credited to the account of Customer by a third party in exchange
for or in consideration of commodities delivered by Consignor to such third
party, or (iii) are sold by Customer to Consignor and then consigned back to
Customer.
2. Valuation. For purposes of this Agreement: (a) the value of gold and
palladium bullion shall be determined on the basis of the London Bullion
Brokers' second fixing price for such commodity on the valuation date or, if no
price is available for such date, then on the basis of said second fixing price
on the next previous day for which it is available; (b) the value of silver
bullion shall be determined on the basis of Handy & Xxxxxx'x noon price for such
commodity on the valuation date, or if no price is available for such date, then
on the basis of said published price for the previous day for which such price
was available; and (c) the value of copper bullion shall be determined on the
basis of the London Metals Exchange official spot price for such commodity on
the valuation date or, if no price is available for such date, then on the basis
of said official spot price on the next previous day for which it is available.
Should the London Bullion Brokers, Handy & Xxxxxx or London Metals Exchange
discontinue or alter its practice of quoting a price for gold, palladium, silver
or copper, as applicable, on any day for which such a price is necessary for the
purposes hereof, Consignor shall announce a substituted index commonly used in
the trade to become the method of valuation hereunder.
3. Payments by Customer. (a) So long as commodities are consigned to
Customer hereunder and until the same are withdrawn from consignment and paid
for in full, Customer will pay to Consignor a fee computed daily on the value of
such commodities at a rate determined at the time of the making of each
consignment, such fee(s) to accrue on a daily basis and to be paid on the
Payment Date ("Consignment Fees"). In the event that Customer fails to pay the
Consignment Fees or other fees agreed to be paid by Customer on the Payment Date
for any reason (including, without limitation, as a result of prepayment or late
payment), Customer, upon written notice made by Consignor at any time and from
time to time and as often as the occasion therefor may arise, immediately shall
pay to Consignor such additional cost to Consignor or payment foregone by
Consignor resulting therefrom (the "Additional Amounts"), such Additional
Amounts to be calculated by Consignor and certified in a notice to Customer.
(b) At such time as Customer requests the consignment and delivery of
commodities, it shall become obligated to pay a market premium per xxxx ounce
announced by Consignor at the time of such consignment ("Market Premium"). Such
payment is to be made within 5 business days of Customer's receipt of
Consignor's monthly invoice by bank wire to a bank of Consignor's choice. At
such time as Customer shall purchase and withdraw commodities from consignment,
it shall become obligated to pay to Consignor (i) a purchase price computed in
accordance with Paragraph 2 if such purchase is effected by Customer prior to
2:30 P.M., G.M.T., on any business day of Consignor, or (ii) such other mutually
agreed purchase price, payment to be made within 2 business days of purchase by
bank wire to a bank of Consignor's choice ("Purchase Price Payment").
Commodities shall be deemed to be purchased and withdrawn from consignment at
such time as Customer notifies Consignor it elects to purchase such commodities.
-2-
(c) Customer agrees to pay upon demand interest on any Purchase Price
Payment, Consignment Fees, Market Premium or any other amount not paid when due
at a rate per annum equal to the Prime Rate, so called, of Fleet National Bank
("Bank"), plus 5%, from the date of delinquency until payment in full.
4. Maintenance of Consignment Limit. If the value of commodities on
consignment at any time exceeds the Consignment Limit, Customer will promptly
either (a) make purchase and payment to Consignor, as provided in Paragraph 3,
for consigned commodities having an aggregate value sufficient to result in the
value of the remaining consigned commodities to be less than the Consignment
Limit, or (b) deliver to Consignor sufficient of such consigned commodities to
achieve the same result. Any such delivery shall be at Customer's expense and
risk.
5. True Consignment. This Agreement shall provide for a true consignment
and all transactions hereunder shall constitute true consignments of
commodities.
6. Warranties. Customer warrants and represents to Consignor (which
warranties and representations shall survive the execution of this Agreement and
the delivery of consigned commodities to Customer) that:
(a) Customer (i) is duly organized, validly existing and in good standing
under the laws of the Commonwealth of Pennsylvania; and (ii) has the corporate
power and authority to execute, deliver and perform this Agreement and to carry
on business as now conducted. The execution, delivery and performance by
Customer of the terms of this Agreement have been authorized by all requisite
corporate action and will not violate the charter or bylaws of Customer or any
document to which it is a party or by which it is bound. This Agreement
constitutes the legal, valid and binding obligation of Customer enforceable in
accordance with its terms.
(b) No Event of Default, as defined herein, and no event which, with the
passage of time or the giving of notice, would become an Event of Default, has
occurred and is continuing. No statement made by or on behalf of Customer herein
or in any writing furnished to Consignor contains an untrue statement of
material fact or omits any material fact necessary to make such statement not
misleading.
7. Affirmative and Negative Covenants. Customer covenants, from the date
hereof until payment and performance of all obligations of Customer hereunder,
Customer shall:
(a) Do all things necessary to keep in full force and effect its corporate
existence; and not dissolve or liquidate and not change its corporate name
unless it has provided Consignor with 30 days prior written notice thereof.
(b) Not create, incur, assume or suffer to exist any mortgage, security
interest, pledge, lien or other encumbrance or ownership interest on any of its
assets, on any of the consigned commodities or on any products or inventory
which contains consigned commodities.
(c) Furnish to Consignor: (i) within 90 days after the end of each of
Customer's fiscal years, a copy of Customer's annual report, the financial
statements contained therein
-3-
prepared by an independent certified public accountant acceptable to Consignor;
(ii) within 30 days after filing with the Securities and Exchange Commission,
copies of each of Customer's Form 10K and Form 10Q reports; and (iii) such
additional information regarding the location use of consigned commodities by
Customer as Consignor may reasonably request.
8. Conditions to Consignor's Obligation to Consign. The obligation of
Consignor to deliver and/or consign commodities hereunder is subject to the
following conditions precedent: (a) the representations and warranties in
Paragraph 6 shall be true and correct on and as of the date hereof and the date
each consignment is requested and is to occur; and (b) no Event of Default, nor
any event which upon notice or lapse of time or both would constitute an Event
of Default, shall have occurred and be continuing.
9. Default. In case of the occurrence of any one or more of the following
events (each an "Event of Default"):
(a) default in the payment or performance of any of Customer's material
obligations or agreements hereunder; or
(b) any representation or warranty made herein or in any document
furnished in connection with this Agreement shall prove to be false or
misleading in any material respect; or
(c) Customer shall make an assignment for the benefit of creditors; file
or suffer the filing of any voluntary or involuntary petition under any chapter
of the Bankruptcy Code; apply for or permit the appointment of a receiver,
trustee or custodian of any of its property or business; become insolvent or
suffer the entry of an order for relief under Xxxxx 00, Xxxxxx Xxxxxx Code; or
make an admission of its inability to pay its debts as they become due; or
(d) the occurrence of any material loss, theft or destruction of or damage
to any of the consigned commodities; or the occurrence of any attachment on any
of the consigned commodities;
then in any such event (i) the obligations of Consignor hereunder shall, at
Consignor's option, terminate, (ii) Customer shall promptly return to Consignor
all commodities theretofore consigned to but not purchased and paid for by
Customer, and (iii) all Customer's obligations to Consignor shall become and be
immediately due and payable without presentment, demand or notice, all of which
are hereby expressly waived, notwithstanding any credit or time allowed to
Customer or any agreement to the contrary. Customer shall, at Consignor's
request, immediately assemble all consigned commodities, and Consignor may go
upon Customer's premises during normal business hours to take immediate
possession thereof. Customer shall pay all reasonable legal expenses and
attorneys' fees incurred by Consignor in enforcing Consignor's rights, powers
and remedies under this Agreement. No failure or delay on Consignor's part to
exercise or to enforce any of its rights hereunder or to require strict
compliance with the terms hereof and no course of conduct on Consignor's part
shall constitute a waiver or relinquishment of any rights hereunder.
10. Termination; Return of Commodities. Consignor or Customer may
terminate this Agreement upon 30 days prior written notice. Upon the giving of
such notice or at any time thereafter, Consignor may, at its option, suspend or
terminate its obligation to consign or deliver
-4-
commodities hereunder. Upon termination of this Agreement, Customer shall,
within 24 hours following the request of Consignor, deliver to Consignor, at
Customer's expense and risk, any commodities consigned but not purchased and
paid for in full.
11. Miscellaneous. (a) The rights of Customer under this Agreement may not
be assigned without the prior written consent of Consignor. All covenants and
agreements of Customer contained herein shall bind Customer, its successors and
assigns, and shall inure to the benefit of Consignor, its successors and
assigns.
(b) This Agreement shall be governed by and construed under Rhode Island
law. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity of all other terms shall not be affected thereby.
Customer submits to the jurisdiction of the courts of Rhode Island and of any
federal court located in such state, as well as to the jurisdiction of all
courts from which an appeal may be taken from such courts, for the purpose of
any suit, action or proceeding arising out of the breach by Customer of any of
its obligations under this Agreement, and expressly waives any and all
objections it may have as to venue in any of such courts and agrees that service
of process may be made on Customer by mailing a copy of the summons to the
address of Customer on the books and records of Consignor. CUSTOMER WAIVES TRIAL
BY JURY IN CONNECTION WITH ANY SUIT OR ACTION ARISING OUT OF OR CONCERNING ITS
OBLIGATIONS IN CONNECTION WITH THIS AGREEMENT.
(c) All communications hereunder shall be in writing and shall be mailed
by certified mail, return receipt requested, to the address of Consignor or
Customer provided above, as applicable, or to such other address as the parties
may provide to each other. Notices shall be deemed to have been given when so
delivered or 3 days following deposit in the mail.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and
year first above written.
WITNESS: TECHNITROL, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------------ --------------------------------------
Title: Vice President
-----------------------------------
WITNESS: ADVANCED METALLURGY,
INCORPORATED
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxx Xxxxxxxx
------------------------------ --------------------------------------
Title: President
-----------------------------------
-5-
WITNESS: FLEET PRECIOUS METALS INC.
/s/ Xxxxxx X. Spectini By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------- ---------------------------------------
W. Xxxxxxx Xxxxxxx
Vice President
/s/ Xxxxxx X. Spectini By: /s/ Xxxx X. Xxxxx
------------------------------- ---------------------------------------
Name: /s/ Xxxx X. Xxxxx
-------------------------------------
Title: VP
------------------------------------
-6-
