Exhibit 4.17
between
Aerovox Incorporated
and
McDonald Investments Inc.
__________________________________
Dated as of March 1, 2000
__________________________________
$10,170,000
Aerovox Incorporated
Taxable Adjustable Rate Notes, Series 2000
Exhibit 4.17
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This , dated as of March 1, 2000 (the
""), is made by and between Aerovox Incorporated (the
"Issuer") and McDonald Investments Inc., as placement agent and remarketing
agent (the "Remarketing Agent"), and is entered in connection with the issuance
of Aerovox Incorporated Taxable Adjustable Rate Notes, Series 2000 in the total
aggregate principal amount not to exceed $10,170,000 (the "Notes").
ARTICLE I
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Definitions
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Section 1.01. Capitalized Terms.
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Capitalized terms used in this , unless otherwise
defined herein, shall have the meanings assigned to them in the Trust Indenture,
dated as of March 1, 2000 (the "Indenture"), between the Issuer and The
Huntington National Bank, Columbus, Ohio, as Trustee, with respect to the Notes.
Section 1.02. Rules of Interpretation.
-----------------------
(a) This shall be interpreted in accordance
with and governed by the laws of the State of Maine.
(b) The words "herein" and "hereof" and words of similar import,
without reference to any particular Article, Section or
subsection, refer to this as a whole rather
than to any particular Article, Section or subsection hereof.
(c) The headings of Articles and Sections herein are for convenience
only and shall not affect the construction hereof.
ARTICLE II
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Remarketing of Notes
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Section 2.01. Representations and Warranties of the Issuer.
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The Issuer hereby represents and warrants, for the benefit of the
Remarketing Agent, as remarketing agent and as placement agent in connection
with the initial placement of the Notes on the delivery date, that:
(a) The Issuer is a corporation, duly formed and existing under the
laws of the State of Delaware, and has full power and authority
to enter into the
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Indenture, this and the Reimbursement
Agreement and to issue the Notes and to carry out the provisions
hereof and thereof.
(b) The Indenture, the Reimbursement Agreement, this and the Notes have been duly authorized, executed and
delivered by the Issuer and, assuming the due execution and
delivery of such agreements by the other parties thereto, are
valid obligations legally binding upon the Issuer and enforceable
in accordance with their respective terms, except as
enforceability may be limited by bankruptcy or other laws
affecting the enforcement of creditors' rights generally or by
general principles of equity and public policy. The Notes have
been duly authorized by the Issuer. The Issuer has approved the
use and distribution of the Limited Offering Memorandum dated as
of March 22, 2000 (the "Limited Offering Memorandum") in
connection with the initial placement of the Notes.
(c) Except for all consents, approvals or authorizations of, or
declaration or filing under any federal or state securities or
"blue sky" laws, to Issuer's actual knowledge, no consent,
approval or authorization of, or declaration or filing with, any
governmental authority or any other third party is a condition to
the execution and delivery by the Issuer of the Indenture, this
or the Reimbursement Agreement, or is
required in connection with the offer, issuance and delivery by
the Issuer of the instruments contemplated hereby. Neither the
execution and delivery of the Indenture, the Reimbursement
Agreement, this Remarketing Agreement or the Notes nor
consummation of the transaction contemplated hereby or thereby or
by the Limited Offering Memorandum, will, to Issuer's actual
knowledge, violate any provision of applicable law or any
applicable regulation, order, writ or decree of any court or
governmental authority affecting the Issuer as of the date
hereof, or will conflict or will be inconsistent with, or will
result in any breach of any of the terms of, or will constitute a
default under, any indenture, mortgage, deed of trust, agreement
or other instrument to which the Issuer is a party or by which it
is bound, or will violate any provision of the Issuer's Articles
of Incorporation or By-laws.
(d) To Issuer's actual knowledge, there is no action, suit,
proceeding, inquiry or investigation, at law or in equity, or
before or by any court, public board or body, pending or, to the
actual knowledge of the Issuer, threatened which challenges the
validity of or seeks to enjoin the execution and delivery by the
Issuer of, or the performance by the Issuer of its obligations
with respect to, the Indenture, this Remarketing Agreement, the
Reimbursement Agreement or the Notes, and, to Issuer's actual
knowledge, there is no action, suit, proceeding, inquiry or
investigation, at
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law or in equity, or before or by any court, public board or
body, pending or, to the actual knowledge of the Issuer,
threatened against or affecting the Issuer (and to the actual
knowledge of the Issuer there is no basis therefor) wherein there
is a reasonable possibility of an unfavorable decision, ruling or
finding which would materially adversely affect any of the
transactions contemplated by the Limited Offering Memorandum, or
which might result in any material adverse change in the
properties, condition (financial or otherwise) or operations of
the Issuer.
(e) Subject to the proviso that the Limited Offering Memorandum is a
summary and does not contain detailed information about the
Issuer or its intended use of proceeds from the sale of the
Notes, and that the Issuer makes no representation as to the
financial condition of the Bank, the Limited Offering Memorandum
does not contain an untrue or misleading statement of a material
fact relating to the Issuer or the use of proceeds or omit to
state any material fact relating to the Issuer or the use of
proceeds necessary in order to make the statements contained
therein relating to the Issuer or the use of proceeds, in light
of the circumstances under which they were made, not misleading.
Section 2.02. Remarketing Agent's Acceptance.
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McDonald Investments Inc. hereby accepts the appointment made by the
Issuer pursuant to the Indenture to serve as Remarketing Agent for the Notes.
Acceptance of that appointment as Remarketing Agent under the Indenture is
expressly subject to the condition that the Remarketing Agent shall not
undertake to perform any duties or assume any obligations to the Trustee, the
Holders or the Issuer other than those expressly set forth herein and in the
Indenture.
Section 2.03. Remarketing Agent's Obligations.
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McDonald Investments Inc. agrees to accept the duties and obligations
imposed upon it as Remarketing Agent under the Indenture, which duties and
obligations are incorporated into and made a part of this Remarketing Agreement,
and in particular agrees:
(a) to determine the interest rates on the Notes in accordance with
Section 2.02 of the Indenture;
(b) to give notice, by wire, telex, telegraph or telecopier or other
similar means of communication, of each interest rate on the
Notes on the date of determination of said interest rates as
provided in Section 2.02 of the Indenture to the Trustee;
(c) to keep such books and records as shall be consistent with
prudent industry practice and to make such books and records
available for inspection by the Issuer and the Trustee at all
reasonable times;
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(d) to use its best efforts to remarket the Notes in accordance with
Section 3.02 of the Indenture; and
(e) to comply with all applicable laws in connection with its efforts
to remarket the Notes.
The Remarketing Agent hereby represents that it has the necessary
authority to enter into this Remarketing Agreement and to perform its duties and
obligations set forth in this Remarketing Agreement and the Indenture and that
it has made all required registrations with federal and state securities
regulation agencies for those purposes.
ARTICLE III
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Disclosure
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Section 3.01. Provision of Disclosure Materials.
---------------------------------
In connection with the Remarketing Agent's placement efforts with
respect to the initial placement of the Notes, the Issuer agrees to provide for
the use of the Remarketing Agent a Limited Offering Memorandum (the "Limited
Offering Memorandum") satisfactory to the Remarketing Agent. In addition, if the
Remarketing Agent determines that it is necessary or desirable to use an amended
or supplemented Limited Offering Memorandum in connection with any remarketing
of Notes, the Remarketing Agent will so notify the Issuer and the Issuer agrees
that the Issuer shall provide an amended or supplemented Limited Offering
Memorandum reasonably satisfactory to the Remarketing Agent for use in
connection with the marketing of the Notes. The Issuer agrees to supply to the
Remarketing Agent such number of copies of any Limited Offering Memorandum and
documents related thereto as are reasonably requested from time to time by the
Remarketing Agent and further agrees to amend or supplement such Limited
Offering Memorandum (and/or any documents incorporated by reference therein), in
connection with any future remarketing, so that at all times the Limited
Offering Memorandum and documents related thereto are reasonable satisfactory to
the Remarketing Agent.
ARTICLE IV
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General
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Section 4.01. Indemnification.
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The Issuer agrees to indemnify the Remarketing Agent for and to hold
it harmless against all liabilities, claims, costs and expenses incurred without
gross negligence or bad faith on the part of the Remarketing Agent on account of
any action taken or omitted to be taken by the Remarketing Agent in accordance
with the terms of the Notes, the Reimbursement Agreement, the Letter of Credit
or the Indenture, or in connection with the placement or remarketing of the
Notes, including the use of the Limited Offering Memorandum, or any action taken
at the request of or with the consent of the Issuer, including the reasonable
costs and expenses of the Remarketing Agent in defending itself against any such
claim, action or proceeding brought in
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connection with the exercise or performance of any of its powers or duties under
the Notes, the Indenture, the Reimbursement Agreement or the Letter of Credit;
except to the extent that any such claim, liability, cost or expense arises in
connection with (i) the failure by the Remarketing Agent to deliver the Limited
Offering Memorandum, or any amended or supplemented Limited Offering Memorandum
or amendment or supplement to the Limited Offering Memorandum, to any purchaser
of the Notes if the Issuer has provided the Limited Offering Memorandum, or any
amended or supplemented Limited Offering Memorandum or amendment or supplement
to the Limited Offering Memorandum (in accordance with Section 3.01 hereof), as
the case may be, to the Remarketing Agent for use in connection with the
placement or remarketing of the Notes, or (ii) any untrue or misleading
statement, or alleged untrue or misleading statement, or omission or alleged
omission in information relating to the Remarketing Agent provided by the
Remarketing Agent for inclusion in the Limited Offering Memorandum or any
amended or supplemented Limited Offering Memorandum or any amendment or
supplement to the Limited Offering Memorandum.
In case any claim, action or proceeding is brought against the
Remarketing Agent in respect of which indemnity may be sought hereunder, the
Remarketing Agent promptly shall give notice of that claim, action or proceeding
to the Issuer, and the Issuer, upon receipt of that notice, shall have the
obligation and the right to assume the defense of the claim, action or
proceeding at the Issuer's expense; provided, that failure of the Remarketing
Agent to give that notice shall not relieve the Issuer from any of its
obligations under this Section unless that failure prejudices the defense of the
claim, action or proceeding by the Issuer. At its own expense, the Remarketing
Agent may employ separate counsel and participate in the defense. The Issuer
shall not be liable for any settlement made without its consent, which consent
shall not be unreasonably withheld.
The indemnification set forth above is intended to and shall include
the indemnification of all affected officials, directors, officers and employees
of the Remarketing Agent. Such indemnification is intended to and shall be
enforceable by the Remarketing Agent to the full extent permitted by law.
Section 4.02. Placement and Remarketing Fees.
------------------------------
The Issuer shall pay the Remarketing Agent, for its services as
remarketing agent, an annual fee equal to 12.5 basis points (1/8th of 1%) per
annum of the amount of the Notes outstanding, payable semi-annually in arrears,
and a fee with respect to the initial placement of the Notes equal to seventy-
five one hundredths percent (0.75%) of the aggregate principal amount of the
Notes, payable from the proceeds of the sale of the Notes on March 22, 2000.
The Issuer also shall pay (i) all expenses in connection with the
provision of information required for the preparation of the Limited Offering
Memorandum or supplement thereto provided pursuant to Section 3.01 of this
Remarketing Agreement, (ii) all fees and expenses incurred in connection with
the registration of the Notes under any state securities laws, (iii) all
expenses and costs to effect the authorization, preparation, issuance,
registration under any federal securities laws or the procurement of an
exemption therefrom, delivery and sale of
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the Notes, including, without limitation, the reasonable fees and disbursements
of counsel to the Letter of Credit Bank, counsel to McDonald Investments Inc. as
placement agent and remarketing agent and counsel to the Issuer, and the
expenses and costs for the preparation, printing, photocopying, execution and
delivery of the Notes, the Indenture, the Reimbursement Agreement, this
Remarketing Agreement, the Limited Offering Memorandum and all other agreements
and documents contemplated by such documents, and (iv) the cost of obtaining any
rating on the Notes.
Section 4.03. Term.
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This Remarketing Agreement will terminate upon the effective date of
the resignation or removal of McDonald Investments Inc. as Remarketing Agent in
accordance with the provisions of this Remarketing Agreement and Section 12.01
of the Indenture.
Upon the termination of this Remarketing Agreement, the provisions of
Section 4.01 hereof will continue to remain in effect and any Notes or moneys
then held by McDonald Investments Inc. as Remarketing Agent will be delivered to
the successor remarketing agent or, if there is no successor, to the Trustee.
Section 4.04. Remarketing Agent's Performance.
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The duties and obligations of the Remarketing Agent shall be
determined solely by the express provisions of this Remarketing Agreement and
the Indenture, and the Remarketing Agent shall not be responsible for the
performance of any duties and obligations other than as are specifically set
forth in this Remarketing Agreement and the Indenture, and no implied covenants
or obligations shall be read into this Remarketing Agreement or the Indenture
against the Remarketing Agent. The Remarketing Agent may conclusively rely upon
any notice or document given or furnished to it, and conforming to the
requirements of this Remarketing Agreement or the Indenture, and the Remarketing
Agent may rely and shall be protected in acting upon such notice or any document
reasonably believed by it to be genuine and to have been given, signed or
presented by the proper party or parties. The Remarketing Agent will use its
best efforts to comply with all applicable laws and regulations in the
performance of its duties and obligations hereunder and under the Indenture and
use its best efforts to perform such duties and obligations.
Section 4.05. Notices.
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Unless otherwise specified, any notices, requests or other
communications given or made hereunder or pursuant hereto shall be made in
writing and shall be deemed to have been validly given or made if either duly
mailed by certified or registered mail, return receipt requested, or hand
delivered, or overnight mail, or facsimile, addressed as follows: if to the
Issuer, Aerovox Incorporated, 000 Xxxxxxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxxxxx
00000, Attention: President, with a copy to Xxxxxxx X. Xxx, Esq., 00 Xxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000-0000, and if to the Remarketing
Agent, XxXxxxxx Investments Inc., 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Fixed Income
Xxxxxxxxxx, Xxxxxxxxx, Xxxx 00000. The Notice Address shall constitute, for the
purposes set forth in the Indenture, the principal office of McDonald
Investments Inc. as Remarketing Agent.
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IN WITNESS WHEREOF, the Issuer and the Remarketing Agent have caused
this Remarketing Agreement to be duly executed by their duly authorized
representatives, respectively, as of the date first above written.
AEROVOX INCORPORATED
By: XXXXXX X. XXXXXXX
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
MCDONALD INVESTMENTS INC.
By: XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxx, Managing Director
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