SECOND RESTATED SECURITIES PLEDGE AGREEMENT
THIS SECOND RESTATED SECURITIES PLEDGE AGREEMENT is made as of April
4, 2001, between Aerovox Incorporated, a Delaware corporation (together with Xx.
Xxxxxx, "Pledgor"), Xxxxxx Xxxxxxx ("Xx. Xxxxxxx") and Hobir Holding B.V.
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("Hobir"), Kato Holding B.V. ("Kato"), Xxxxx Investments B.V. ("Xxxxx") Kasri
Holding B.V. ("Kasri"), Tako Holding B.V. ("Tako") and Xxxxx Investments B.V.
("Xxxxx"), each a corporation organized under the laws of The Netherlands
(collectively, the "Pledgee").
WHEREAS, Pledgor and Pledgee are parties to a Restructuring Agreement
dated on or about the date hereof (the "Restructuring Agreement").
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WHEREAS, pursuant to the Restructuring Agreement, Pledgor and Pledgee
agreed to execute this Second Restated Securities Pledge Agreement to amend and
restate the six Restated Securities Pledge Agreements dated January 31, 2001,
pursuant to which Aerovox Incorporated agreed to pledge not more than 59% of its
shares of common stock of Aerovox de Mexico, S.A. de C.V (f/k/a Capacitores
Unidos, S.A. de C.V.) ("ADM Stock") in order to secure Pledgor's indebtedness
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pursuant to the two promissory notes issued to each Pledgee by Pledgor on April
5, 1999 (the "Old Notes").
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WHEREAS, pursuant to the Restructuring Agreement each Old Note has
been canceled and replaced by a replacement promissory note bearing interest at
8.22% per annum issued on or about the date hereof (each a "Replacement Note")
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as follows:
(a) In the principal amount of $251,250 (Two hundred fifty-one
thousand two hundred fifty) to Hobir;
(b) In the principal amount of $251,250 (Two hundred fifty-one
thousand two hundred fifty) to Kato;
(c) In the principal amount of $251,250 (Two hundred fifty-one
thousand two hundred fifty) to Xxxxx;
(d) In the principal amount of $251,250 (Two hundred fifty-one
thousand two hundred fifty) to Kasri;
(e) In the principal amount of $331,140 (Three hundred thirty-one
thousand one hundred forty) to Tako; and
(f) In the principal amount of $255,261 (Two hundred fifty-five
thousand two hundred sixty-one) to Xxxxx.
WHEREAS, Pledgor and each Pledgee are parties to Stock Purchase
Agreements (the "Purchase Agreement"), dated April 5, 1999, as subsequently
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amended, pursuant to which Pledgor purchased a total of 50,000 shares of ADM
Stock from Pledgee.
WHEREAS, Pledgor now agrees to pledge 100% of the issued and
outstanding shares of ADM Stock in order to secure Pledgor's indebtedness
pursuant to the Replacement Note. The 50,000 shares of Series B Class I and
22,333,830 shares of Series B Class II of the ADM Stock to be pledged hereunder
are hereinafter referred to as "Pledged Securities." This Second Restated
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Securities Pledge Agreement provides the terms and conditions upon which the
Replacement Note is secured by a pledge to Pledgee of the Pledged Securities.
NOW, THEREFORE, in consideration of the premises contained herein and
for other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Pledgor and Pledgee hereby agree as follows:
1. Pledge. Pledgor hereby pledges to Pledgee, and grants to Pledgee
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a security interest in the Pledged Securities as security for the prompt and
complete payment when due of the unpaid principal of and interest on the
Replacement Note and full payment and performance of the obligations and
liabilities of Pledgor hereunder. Upon an event of default on the Replacement
Note, Pledgee shall have all of the rights of a secured creditor.
2. Delivery of Pledged Securities. Upon the execution of this Second
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Restated Securities Pledge Agreement, Pledgor shall deliver to First National
Bank, the U.S. escrow agent of Pledgee any certificate(s) representing the
Pledged Securities and duly executed forms of assignment sufficient to transfer
title thereto to Pledgee. The escrow agent shall hold the Pledged Shares in
accordance with an escrow agreement mutually agreeable to the parties hereto.
Pledgor further agrees to deliver upon execution hereof to counsel to Pledgee
UCC-1 financing statements which shall identify the Pledged Securities as 100%
of the issued and outstanding capital stock of ADM, including the number of
issued and outstanding shares, together with all proceeds of the Pledged
Securities. The UCC-1 financing statements shall be filed in the appropriate
recording offices in Massachusetts and Delaware.
3. Voting Rights; Cash Dividends. Upon execution of this Second
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Restated Securities Pledge Agreement, Pledgor shall deliver to Xxxxxxx Xxxxxxx
Aldunate ("Xx. Xxxxxxx") an irrevocable proxy to vote the Pledged Securities in
the form of Exhibit A to this Agreement; provided, however, so long as no
default exists in the payment of principal or interest on any Replacement Note,
Pledgor shall be entitled to exercise all voting rights with respect to the
Pledged Securities. All dividends or other distributions with respect to any
Pledged Securities in the form of cash or cash equivalents shall be retained by
or otherwise immediately remitted to Pledgee for application to the Note as
provided therein.
4. Stock Dividends; Distributions, etc. If, while this Restated
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Securities Pledge Agreement is in effect, Pledgor becomes entitled to receive or
receives any securities or other property in addition to, in substitution of, in
exchange for or otherwise in respect of any of the Pledged Securities (whether
as a distribution in connection with any recapitalization, reorganization or
reclassification, a stock dividend or otherwise), Pledgor shall accept such
securities or other property on behalf of and for the benefit of Pledgee as
additional security for Pledgor's obligations under the Replacement Note and
shall promptly deliver such additional
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security to Pledgee together with duly executed forms of assignment, and such
additional security shall be deemed to be part of the Pledged Securities
hereunder.
5. Default. If Pledgor defaults in the payment of the principal or
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interest under the Replacement Note when it becomes due (whether upon
acceleration or otherwise) or any other event of default under the Replacement
Note or this Second Restated Securities Pledge Agreement occurs (including the
bankruptcy, Chapter 11 or insolvency of Pledgor), Pledgee may exercise any and
all the rights, powers and remedies of any owner of the Pledged Securities
(including the right to vote the shares and receive dividends and distributions
with respect to such shares) and shall have and may exercise without demand any
and all the rights and remedies granted to a secured party upon default under
the Uniform Commercial Code of Massachusetts or otherwise applicable to Pledgee
under applicable law. Without limiting the foregoing, Pledgee is authorized to
sell, assign and deliver at its discretion, from time to time, all or any part
of the Pledged Securities at any private sale or public auction, on not less
than ten days written notice to Pledgor, at such price or prices and upon such
terms as Pledgee may deem advisable. Pledgor shall have no right to redeem the
Pledged Securities after any such sale or assignment. At any such sale or
auction, Pledgee may bid for, and become the purchaser of, the whole or any part
of the Pledged Securities offered for sale. In case of any such sale, after
deducting the costs, attorneys' fees and other expenses of sale and delivery,
the remaining proceeds of such sale shall be applied to the principal of and
accrued interest on the Replacement Note; provided that after payment in full of
the indebtedness evidence by the Replacement Note, the balance of the proceeds
of sale then remaining shall be paid to Pledgor and Pledgor shall be entitled to
the return of any of the Pledged Securities remaining in the hands of Pledgee.
Pledgor shall be liable for any deficiency if the remaining proceeds are
insufficient to pay the indebtedness under the Replacement Note in full,
including the fees of any attorneys employed by Pledgee to collect such
deficiency.
6. Release of Pledged Securities.
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a. Upon payment in full of the indebtedness evidenced by the
Replacement Note, Pledgee shall surrender the Pledged Securities to
Pledgor together with all forms of assignment.
b. Upon termination of Xxxxxxx Xxxxxxx Xxxxxxxx ("Xx. Xxxxxxx")
as an executive officer or director of Pledgor by his decision for any
reason except for Xx. Xxxxxxx'x death or disability, the security
interest granted hereunder shall immediately terminate and Pledgee
shall surrender the Pledged Securities to Pledgor together with all
applicable forms of assignment. For purposes of this Section 6.1.b,
Xx. Xxxxxxx shall be considered to have a disability if he becomes
disabled through any illness, injury, accident or condition of either
a physical or psychological nature so as to be unable to perform
substantially all of his duties and responsibilities for twelve weeks
or more during any period of three hundred and sixty-five (365)
consecutive calendar days.
7. No Other Liens; No Sales or Transfers. Pledgor hereby represents
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and warrants that he has good and valid title to all of the Pledged Securities,
free and clear of all liens, security
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interests and other encumbrances, and Pledgor hereby covenants that, until such
time as all of the outstanding principal of and interest on the Replacement Note
have been repaid, Pledgor shall not (i) create, incur, assume or suffer to exist
any pledge, security interest, encumbrance, lien or charge of any kind against
the Pledged Securities or Pledgor's rights as a holder thereof, other than
pursuant to this Second Restated Securities Pledge Agreement or (ii) sell or
otherwise transfer any Pledged Securities or any interest therein.
8. Further Assurances. Pledgor agrees that at any time and from time to
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time upon the written request of Pledgee, Pledgor shall execute and deliver such
further documents (including UCC financing statements) and do such further acts
and things as Pledgee may reasonably request in order to effect the purposes of
this Second Restated Securities Pledge Agreement.
9. Severability. Any provision of this Second Restated Securities Pledge
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Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
10. No Waiver; Cumulative Remedies. Pledgee shall not by any act, delay,
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omission or otherwise be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid against Pledgee unless in writing and
signed by Pledgee, and then only to the extent therein set forth. A waiver by
Pledgee of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy which Pledgee would otherwise have on
any future occasion. No failure to exercise nor any delay in exercising on the
part of Pledgee, of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided are cumulative and may be
exercised singly or concurrently, and are not exclusive of any rights or
remedies provided by law.
11. Waivers, Amendments; Applicable Law; Dispute Resolution; Consent to
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Jurisdiction. None of the terms or provisions of this Second Restated
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Securities Pledge Agreement may be waived, altered, modified or amended except
by an instrument in writing, duly executed by the parties hereto. This
Agreement and all obligations of the Pledgor hereunder shall together with the
rights and remedies of Pledgee hereunder, inure to the benefit of Pledgee and
its respective successors and assigns. This Second Restated Securities Pledge
Agreement shall be governed by, and be construed and interpreted in accordance
with, the laws of The Commonwealth of Massachusetts with regard to any conflict
of law provisions. Any dispute which arises between the parties hereunder shall
be resolved exclusively in accordance with the arbitration procedures set forth
in Clause 8.13 of the Purchase Agreement. Notwithstanding the foregoing, each
party hereto, by its execution hereof, (a) consents to the jurisdiction of the
competent courts of Mexico City, Federal District, for the sole purpose of
enforcing an arbitral award relating to this Agreement under Clause 8.13 of the
Purchase Agreement, (b) hereby waives to the extent not prohibited by applicable
law, and agrees not to assert, and agrees not to allow any of its subsidiaries
to assert, by way of motion, as a defense or otherwise, in any such
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action, any claim that it is not subject personally to the jurisdiction of the
above named courts, that its property is exempt or immune from attachment or
execution, that any such proceeding brought in one of the above named courts is
improper, or that this Agreement or the subject matter hereof or thereof may not
be enforced by such court and (c) hereby agrees not to commence or maintain any
actions, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation arising out of or based upon this Agreement
or relating to the subject matter hereof or thereof other than in the courts and
for the purpose described in clause (a) above nor to make any motion or take any
other action seeking or intending to cause the transfer or removal of any such
action, claim, cause of action or suit (in contract, tort or otherwise),
inquiry, proceeding or investigation to any court other than one of the above-
named courts whether on the grounds of inconvenient forum or otherwise.
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IN WITNESS WHEREOF, this Second Restated Securities Pledge Agreement has
been executed as of the date first above written.
AEROVOX INCORPORATED
______________________________
Xxxxxx X. Xxxxxxx
XXXXX INVESTMENTS, B.V.
______________________________
Francisco Xxxxx X.
HOBIR HOLDING B.V.
______________________________
Francisco Xxxxx X.
XXXX HOLDING B.V.
______________________________
Francisco Xxxxx X.
XXXXX INVESTMENTS B.V.
______________________________
Francisco Xxxxx X.
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KASRI HOLDING B.V.
______________________________
Francisco Xxxxx X.
XXXX HOLDING B.V.
______________________________
Francisco Xxxxx X.
Exhibit A
Irrevocable Proxy
Reference is made to the (i) Restructuring Agreement dated as of April ___, 2001
by and among Aerovox Incorporated ("Aerovox"), Aerovox de Mexico (the
"Company"), Xxxxxxx Xxxxxxx Aldunate ("Xx. Xxxxxxx"), Hobir Holding B.V.
("Hobir"), Kato Holding B.V. ("Kato"), Xxxxx Investments B.V. ("Xxxxx"), Kasri
Holding B.V. ("Kasri"), Tako Holding B.V. ("Tako"), and Xxxxx Investments B.V.
("Xxxxx") (the "Restructuring Agreement") and (ii) the six Replacement
Promissory Notes dated April ___, 2001 issued by Aerovox to each of Hobir, Kato,
Bires, Kasri, Tako and Xxxxx (the "Replacement Notes").
Each of Aerovox and Xxxxxx Xxxxxxx (each a "Stockholder") hereby
irrevocably appoints Xx. Xxxxxxx as attorney and proxy with the power of
substitution to represent and vote at any annual or special meeting of
stockholders the Company all of their respective shares of the capital stock of
the Company (the "Pledged Securities") which each such Stockholder could vote if
present, in such manner as he may determine on any matters which may properly
come before any such meeting or any adjournments thereof and to take any action
by written consent of stockholders of ADM; provided, however, that so long as no
default exists in the payment of principal or interest on any Replacement Note,
Aerovox shall be entitled to exercise all voting rights with respect to the
Pledged Securities and this Irrevocable Proxy shall have no effect.
AEROVOX INCORPORATED
By:_______________________
Xxxxxx Xxxxxxx
Chief Executive Officer
__________________________
Xxxxxx Xxxxxxx
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April ___, 2001
First National Bank
000 Xxxx X Xxxxxx
Xxx Xxxxx, XX 00000-0000
Attention: Xx. Xxxxxx Xxxxxxxxx
Re: General Escrow Instructions
Ladies and Gentlemen:
Reference is made to the General Escrow Instructions (the "General
Instructions") dated on or about the date hereof by and among First National
Bank as Escrow Agent ("Escrow Agent"), Aerovox Incorporated ("Pledgor"); Hobir
Holding B.V., Kato Holding B.V., Xxxxx Investments B.V., Kasri Holding B.V.,
Tako Holding B.V., and Xxxxx Investments B.V., (collectively, "Pledgee"); and
Xxxxxxx Xxxxxxx Aldunate as Pledgee's representative ("Pledgee's
Representative"). The General Instructions are hereby incorporated by reference
herein and made a part of this letter agreement. To the extent that anything
contained in the General Instructions conflicts with any provisions of this
letter agreement, the terms of this letter agreement shall control.
Upon execution hereof, Pledgor shall deposit into escrow with Escrow Agent
50,000 shares of Series B Class I and 22,333,830 shares of Series B Class II of
the capital stock of Aerovox de Mexico (the "Pledged Shares").
It is agreed by the parties hereto that Escrow Agent is serving only as
escrow holder and Pledgee's collateral agent for purposes of establishing
Pledgee's control of the Pledged Shares under Section 8-106 of the Uniform
Commercial Code.
In the event that an event of default occurs as a result of any non-payment
of interest or principal due under any Replacement Promissory Notes dated as of
April 4, 2001 issued to Pledgee, Pledgee's Representative, on behalf of Pledgee,
may deliver a written notice to Escrow Agent that such default has occurred and
request that Escrow Agent release the Pledged Shares at the direction of
Pledgee's Representative to the person or persons acquiring such shares pursuant
to the foreclosure of Pledgee's security interest in the Pledged Shares
conducted in accordance with the Pledge Agreement and the law of the
jurisdiction governing the enforcement of Pledgee's rights thereunder. Upon
receipt of such notice, Escrow Agent shall deliver a copy of the notice to
Pledgor. Pledgor shall then have ten (10) business days from the date of receipt
of such notice to object to such release by delivery to Escrow Agent of an
Officers Certificate of Pledgor executed by two officers of the Pledgor, at
least one of which shall be its President or Chief Financial Officer, certifying
under penalty of perjury that either (i) no default has occurred as a result of
any non-payment of interest or principal due under any Replacement Promissory
Notes dated as of April 4, 2001 issued to Pledgee, or (ii) based upon written
advise of counsel to Pledgor, the foreclosure of Pledgee's security interest in
the Pledged Shares was not lawfully conducted e in accordance with the Pledge
Agreement of the laws of the jurisdiction governing the enforcement of Pledgee's
rights under the Pledge Agreement. If Pledgor objects to such
release by delivery of the such Officers Certificate, Escrow Agent shall
continue to hold the Pledged Shares in escrow until it receives written
instructions from Pledgee's Representative and Pledgor or is otherwise directed
by a judicial order. If Pledgor does not object as provided herein within the
specified time period, Escrow Agent shall release the Pledged Shares to
Pledgee's Representative.
Fees of $2,000 per annum are payable to Escrow Agent for its ordinary and
usual services hereunder. Should there be any extraordinary or unusual services
approved by the parties hereto to be rendered by Escrow Agent, Pledgor and
Pledgee shall pay reasonable compensation to Escrow Agent for such extraordinary
or unusual services, together with any reasonable costs and expenses which may
be incurred by Escrow Agent in connection with the same. Pledgor and Pledgee
agree that all fees paid to Escrow Agent hereunder shall be paid 50% by Pledgor
and 50% by Pledgee.
Notices hereunder shall be deemed given when actually delivered to the
recipient at the applicable address or facsimile number listed below (or at such
other address as the recipient shall have designated by notice given hereunder):
If to Escrow Agent:
First National Bank
000 Xxxx X Xxxxxx
Xxx Xxxxx, Xx 00000-0000
Attention: Trust Department, Xx. Xxxxxx Xxxxxxxxx, Xx. Vice President
If to Pledgor:
Aerovox Incorporated
000 Xxxx Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attn: Chief Executive Officer
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx X. Fine, Esq.
If to Pledgee or Pledgee's Representative:
Xx. Xxxxxxx Xxxxxxx Xxxxxxxx
Tezozomoc 239
Mexico D.F. 00000
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Xxxxxx
Fax: 000-000-0000
The rights and obligations of Escrow Agent under this letter agreement and
the General Instructions shall be governed by and construed and interpreted in
accordance with the laws of the State of California without regard to any
conflict of law provision.
[Remainder of page intentionally left blank.]
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Please acknowledge your agreement to and acceptance of the foregoing by
signing as indicated below.
Very truly yours,
Pledgor: AEROVOX, INC.
By:_______________________
Name:
Title:
Pledgees: HOBIR HOLDING B.V.
By:_______________________
Name:
Title:
KATO HOLDING B.V.
By:_______________________
Name:
Title:
XXXXX INVESTMENTS, B.V.
By:_______________________
Name:
Title:
TAKO HOLDING, B.V.
By:_______________________
Name:
Title:
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KASRI HOLDING B.V.
By:_______________________
Name:
Title:
XXXXX INVESTMENTS B.V
By:_______________________
Name:
Title:
Pledgee's Representative: ___________________________
Xxxxxxx Xxxxxxx Xxxxxxxx
Agreed and Accepted:
Escrow Agent: FIRST NATIONAL BANK
By:_______________________
Name:
Title:
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