EXHIBIT 10.16(4)
FOURTH AMENDMENT TO AMENDED AND RESTATED CONSIGNMENT AGREEMENT
DATED MAY 27 1997
This Fourth Amendment to Amended and Restated Consignment Agreement
(hereinafter, the "Amendment") is made as of this 14TH day of April, 1998 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, as amended by (i) a certain First Amendment dated August 5, 1997, (ii) a
certain second Amendment dated September 10, 1997, and (iii) a certain Third
Amendment' dated October 1, 1997 (hereinafter, as amended, 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
$25,000,000.00; and
WHEREAS, the Consignee has requested that the Consignor increase the
consignment Limit to $35,000,000.00 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 and Technitrol have determined that this Amendment
is in their best interests.
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
$25,000,000.00 to $35,000,000.00.
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, confirmed and reaffirmed
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, confirm and reaffirm all terms and conditions contained therein
and further ratify, confirm 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/ ▇▇▇▇▇▇ ▇▇▇▇▇, III
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, III
--------------------------------
Title: Director
-------------------------------
DODUCO ESPANA, SA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, III
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, III
--------------------------------
Title: Director
-------------------------------
-2-
TECHNITROL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, III
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇, III
--------------------------------
Title: Vice President and CFO
-------------------------------
RHODE ISLAND HOSPITAL TRUST
NATIONAL BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Title: Vice President
-----------------------------
-3-