Series A Senior Notes due March 21, 2031 Private Shelf Facility NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
Execution Version
$50,000,000
Series A Senior Notes due March 21, 2031
$150,000,000
Private Shelf Facility
______________
NOTE PURCHASE AND PRIVATE SHELF AGREEMENT
______________
Dated March 1, 2024
4873-9182-5052 v18
TABLE OF CONTENTS
Section 5.Representations and Warranties of the cOMPANY14
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Schedule A—Defined Terms
Schedule 1-A—Form of Series A Note
Schedule 1-B—Form of Shelf Note
Schedule 2—Form of Request for Purchase
Schedule 3—Form of Confirmation of Acceptance
Schedule 5.4—Organization and Ownership of Shares of Subsidiaries; Affiliates
Schedule 5.11—Intellectual Property Matters
Schedule 5.12—ERISA
Schedule 5.15—Existing Indebtedness
Schedule 5.24—Taxpayer Identification Numbers
Schedule 5.27—Bank Accounts
Schedule 10.1—Permitted Liens
Schedule 10.3—Permitted Indebtedness
Purchaser Schedule—Information Relating to Purchasers
Information Schedule—Authorized Officers
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000 Xxxxxxxx Xxxxx
Amherst, New York 14228
March 1, 2024
To each of the Purchasers listed in
the Purchaser Schedule attached hereto
(each, a “Series A Purchaser”)
To PGIM, Inc. (“Prudential”)
To each other Prudential Affiliate that
becomes bound by this agreement as
hereinafter provided:
Ladies and Gentlemen:
Allient Inc., a Colorado corporation (the “Company”), xxxxxx agrees with Prudential and each of the Purchasers as follows:
Note issued in exchange for another Note, shall be deemed for these purposes the date on which such Note’s ultimate predecessor Note was issued), are herein called a “Series” of Notes.
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In no case shall the Delayed Delivery Fee be less than zero. Nothing contained herein shall obligate any Purchaser to purchase any Accepted Note on any day other than the Closing Day for such Accepted Note, as the same may be rescheduled from time to time in compliance with Section 3.3.
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referred to in the preceding sentence, Prudential (on behalf of each Purchaser) may at its election, at any time after 1:00 p.m., New York City local time, on such scheduled Closing Day, notify the Company in writing that such closing is to be canceled. Notwithstanding anything to the contrary appearing in this Agreement, the Company may not elect to reschedule a closing with respect to any given Accepted Notes on more than one occasion, unless Prudential shall have otherwise consented in writing.
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The Purchasers and the holders of the Notes recognize and acknowledge that, in respect of any Closing Day following the Series A Closing Date, the Company may update certain of the representations and warranties in this Section 5 by updating the Schedules related thereto as set forth herein pursuant to a Request for Purchase; provided that no such update to any representation or warranty applicable to any particular Closing Day shall change or otherwise modify or be deemed or construed to change or otherwise modify any representation or warranty given on the date hereof or any other Closing Day or any determination of the falseness or inaccuracy thereof pursuant to Section 11(e). The Company represents and warrants to Prudential and each Purchaser that:
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restricting the ability of such Subsidiary to pay dividends out of profits or make other distributions of profits to the Company or any of its other Subsidiaries that owns outstanding shares of capital stock or other Equity Interests of such Subsidiary.
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All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates thereof and the consolidated results of their operations and cash flows for the respective periods indicated and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities that are not disclosed in the Disclosure Documents. The projections of the Company delivered by the Company to Prudential and each applicable Purchaser of the Series A Notes and any Accepted Notes were prepared in good faith and in accordance with GAAP, are based on underlying assumptions which provide a
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reasonable basis for the projections contained therein and reflect the Company’s judgment based on present circumstances of the most likely set of conditions and course of action for the projected period.
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employed, by the Company or any Subsidiary that is material for the purposes of the continued operation of their respective businesses infringes upon any rights held by any other Person. Set forth on Schedule 5.11 is a complete list of all patents, trademarks and copyrights of the Company and its Subsidiaries as of the date of this Agreement. No claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Company, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
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Material Adverse Effect; and (e) there are no facts, circumstances, conditions or occurrences on any property now or at any time owned, leased or operated by the Company or any Subsidiary or on any property adjacent to any such property that could reasonably be expected: (i) to form the basis of any Environmental Claim against the Company or any Subsidiary or any property of the Company or any Subsidiary; or (ii) to cause such property to be subject to any restrictions on the ownership, occupancy, use or transferability of such property under any Environmental Law, except in each such case, such Environmental Claims or restrictions that individually or in the aggregate have not had and will not have a Material Adverse Effect.
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Liens permitted by Section 10.1 entitled to priority under applicable law) security interest in the Collateral. The Collateral and the Collateral Agent’s rights with respect to the Collateral are not subject to any setoff, claims, withholdings or other defenses. The Company and each Guarantor is the owner of the Collateral free from any Lien, except for Liens permitted pursuant to Section 10.1.
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As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.
setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments;
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setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based or with respect to the absence of any material misstatement) of independent public accountants of recognized international standing, which opinion shall state that (x) in the opinion of such accountants, such financial statements present fairly, in all material respects, the financial position of the Company and its Subsidiaries and their results of operations and cash flows and have been prepared in conformity with GAAP, (y) (1) if the Company is a public company, such accountants have audited the internal control over financial reporting of the companies being reported on in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB) and (2) if the Company is not a public company, the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and (z) such accountants believe that such audit provides a reasonable basis for such opinion;
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provided however, that in no case shall access to such financial statements, other information and Officer’s Certificates be conditioned upon any waiver or other agreement or consent (other than confidentiality provisions consistent with Section 20); provided further, that in the case of clause (b) above the Company shall have given Prudential and each holder of a Note prior written notice, which may be by e-mail or in accordance with Section 18, of such posting or filing in connection with each delivery; and provided further, that upon request of Prudential or any holder to receive
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paper copies of such forms, financial statements, other information and Officer’s Certificates or to receive them by e-mail, the Company will promptly e-mail them or deliver such paper copies, as the case may be, to Prudential or such holder.
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The term “Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
“Called Principal” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2, Section 8.6 or Section 8.7 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
“Discounted Value” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.
“Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (a) 0.50% plus (b) the yield to maturity implied by the “Ask Yixxx(x)” reported as
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of 10:00 a.m. (New York City local time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (i) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (ii) interpolating linearly between the “Ask Yields” Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.
If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (a) 0.50% plus (b) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.
“Remaining Average Life” means, with respect to any Called Principal, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day year comprised of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.
“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2, Section 8.6, Section 8.7 or Section 12.1 .
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“Settlement Date” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2, Section 8.6 or Section 8.7 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
The Company covenants that during the Issuance Period and so long thereafter as any of the Notes are outstanding:
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interests in favor of the Collateral Agent for the benefit of the Creditors, in each case in form and substance satisfactory to the Required Holders; provided that, in the case of the security interests specified in Section 9.15 with respect to personal property of Foreign Obligors and Equity Interests of Foreign Subsidiaries, such Collateral Documents and supporting documentation shall not be required to be executed and delivered until the applicable dates set forth with respect thereto in such Section 9.15.
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guaranty all Note Obligations by executing and delivering to the holders of the Notes a Guaranty Agreement, (b) secure all Note Obligations as described in, but only to the extent required by, Section 9.7 by providing the Collateral Agent with a first priority (subject only to Liens permitted by Section 10.1 entitled to priority under applicable law) perfected security interest on its assets and by executing and delivering a security agreement and such other documents as the Required Holders shall deem appropriate for such purpose, in each case in form and substance satisfactory to the Required Holders, (c) deliver to each holder of a Note documents of the types referred to in Section 4.1(e)(ii) and opinions of counsel (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clauses (a) and (b) above) and (d) execute and deliver to the parties to the Intercreditor Agreement an Acknowledgment of and Consent and Agreement to Intercreditor and Collateral Agency Agreement in the form attached to the Intercreditor Agreement, all in form, content and scope reasonably satisfactory to the Required Holders. During the ninety (90) days following the delivery by the Company of a Guarantor Notice, the applicable Subsidiary identified in the Guarantor Notice shall not be considered a Non-Material Covenant Subsidiary for purposes of Section 10.10(c).
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The Company covenants that during the Issuance Period and so long thereafter as any of the Notes are outstanding:
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Without limiting the foregoing, the Company will not, and will not permit any of its Subsidiaries to, grant or permit to exist (w) any Lien on any property securing Indebtedness or other obligations under any Bank Loan Document other than security interests granted to the Collateral Agent for the benefit of the Creditors, (x) any Lien on any patents, trademarks, copyrights or other intellectual property of any Obligor that secures Indebtedness other than security interests granted to the Collateral Agent for the benefit of the Creditors, (y) any Lien on all or substantially all of the personal property of Allied AB (including, for the avoidance of doubt, any Lien securing Indebtedness under the Bank Loan Documents), or (z) any Lien in favor of the U.S. Small Business Administration (other than, solely prior to the date by which such Liens are required to be terminated and released in accordance with Section 9.15(a), the Uniform Commercial Code financing statements filed against Airex and Alio with file numbers 2005290002084 and 20202049063, respectively, provided that the Company and its Subsidiaries have no outstanding Indebtedness owing to the U.S. Small Business Administration).
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An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:
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| Section 12. | Remedies on Default, etc. |
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such
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Notes, plus (x) all accrued and unpaid interest thereon (including interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount, shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
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within 10 Business Days thereafter, the Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the same Series as such lost, stolen, destroyed or mutilated Note, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.
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establish such holder’s status as a United States Person under FATCA and as may otherwise be necessary for the Company to comply with its obligations under FATCA and (b) in the case of any such holder that is not a United States Person, such documentation prescribed by applicable law (including as prescribed by section 1471(b)(3)(C)(i) of the Code) and such additional documentation as may be necessary for the Company to comply with its obligations under FATCA and to determine that such holder has complied with such holder’s obligations under FATCA or to determine the amount (if any) to deduct and withhold from any such payment made to such holder. Nothing in this Section 14.3 shall require any holder to provide information that is confidential or proprietary to such holder unless the Company is required to obtain such information under FATCA and, in such event, the Company shall treat any such information it receives as confidential.
| Section 15. | Expenses, etc. |
The Company will pay, and will save Prudential, each Purchaser and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by Prudential, a Purchaser or other holder in connection with its purchase of the Notes), (ii) any and all wire transfer fees that any bank or other financial institution deducts from any payment to Prudential or under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under such Note and (iii) any judgment, liability, claim, order, decree, fine, penalty, cost, fee, expense (including reasonable attorneys’ fees and expenses) or obligation resulting from the consummation of the transactions contemplated hereby, including the use of the proceeds of the Notes by the Company.
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not the transfer) or the enforcement of any of the Notes in the United States or any other jurisdiction where any Obligor is organized or has assets or of any amendment of, or waiver or consent under or with respect to, this Agreement or any other Finance Document, and to pay any value added tax due and payable in respect of reimbursement of costs and expenses by the Company pursuant to this Section 15, and will save Prudential and each holder of a Note to the extent permitted by applicable law harmless against any loss or liability resulting from nonpayment or delay in payment of any such tax or fee required to be paid by the Company hereunder.
All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement. Subject to the preceding sentence, this Agreement, the other Finance Documents and the Commitment Letter embody the entire agreement and understanding between Prudential, each Purchaser and the Obligors and supersede all prior agreements and understandings relating to the subject matter hereof.
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under any other Finance Document shall operate as a waiver of any rights of any holder of such Note.
| Section 18. | Notices. |
Notices under this Section 18 will be deemed given only when actually received.
Notwithstanding anything to the contrary in this Section 18, any communication pursuant to Section 2.2 shall be made by the method specified for such communication in Section 2.2, and shall be effective to create any rights or obligations under this Agreement only if, in the case of a telephone communication, an Authorized Officer of the party conveying the information and of the party receiving the information are parties to the telephone call, and in the case of an email communication, the communication is signed by an Authorized Officer of the party conveying the information, addressed to the attention of an Authorized Officer of the party receiving the information, and in fact received at the email address which is listed for the party
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receiving the communication in the Information Schedule or at such other email address as the party receiving the information shall have specified in writing to the party sending such information.
This Agreement and all documents relating thereto, including (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by Prudential or any Purchaser at any Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to Prudential or any Purchaser, may be reproduced by Prudential or such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and Prudential and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by Prudential or such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Section 19 shall not prohibit the Company, Prudential or any other holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.
For the purposes of this Section 20, “Confidential Information” means information delivered to Prudential or any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by Prudential or such Purchaser as being confidential information of the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to Prudential or such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by Prudential or such Purchaser or any Person acting on Prudential’s or such Purchaser’s behalf, (c) otherwise becomes known to Prudential or such Purchaser other than through disclosure by the Company or any Subsidiary or (d) constitutes financial statements delivered to Prudential or such Purchaser under Section 7.1 that are otherwise publicly available. Prudential and each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by Prudential and such Purchaser in good faith to protect confidential information of third parties delivered to Prudential or such Purchaser, provided that Prudential and such Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with this Section 20, (iii) any other holder of any Note, (iv) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 20), (v) any Person from which it offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by
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this Section 20), (vi) any federal or state regulatory authority having jurisdiction over Prudential or such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about Prudential’s or such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to Prudential or such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which Prudential or such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent Prudential or such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under such Purchaser’s Notes, this Agreement or any other Finance Document. Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying this Section 20.
In the event that as a condition to receiving access to information relating to the Company or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this Agreement, Prudential, any Purchaser or holder of a Note is required to agree to a confidentiality undertaking (whether through IntraLinks, another secure website, a secure virtual workspace or otherwise) which is different from this Section 20, this Section 20 shall not be amended thereby and, as between Prudential, such Purchaser or such holder and the Company this Section 20 shall supersede any such other confidentiality undertaking.
Each Purchaser shall have the right to substitute any one of its Affiliates or another Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute Purchaser”) as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Substitute Purchaser, shall contain such Substitute Purchaser’s agreement to be bound by this Agreement and shall contain a confirmation by such Substitute Purchaser of the accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 21), shall be deemed to refer to such Substitute Purchaser in lieu of such original Purchaser. In the event that such Substitute Purchaser is so substituted as a Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original Purchaser all of the Notes then held by such Substitute Purchaser, upon receipt by the Company of notice of such transfer, any reference to such Substitute Purchaser as a “Purchaser” in this Agreement (other than in this Section 21), shall no longer be deemed to refer to such Substitute Purchaser, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement.
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* * * * *
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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.
| Very truly yours, |
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| By____________________________ Name: Title: |
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[Signature Page to Note Purchase and Private Shelf Agreement]
This Agreement is hereby | |
accepted and agreed to as | |
of the date hereof. | |
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PGIM, INC. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA By: PGIM, Inc., as investment manager PRUDENTIAL LEGACY INSURANCE COMPANY OF NEW JERSEY By: PGIM, Inc., as investment manager PRUCO LIFE INSURANCE COMPANY OF NEW JERSEY By: PGIM, Inc., as investment manager LOTUS REINSURANCE COMPANY LTD. By: PGIM, Inc., as investment manager | |
[Signature Page to Note Purchase and Private Shelf Agreement]
Schedule A
Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:
“1000212261 Ontario” means 1000212261 Ontario Inc., an Ontario numbered corporation.
“Acceptance” is defined in Section 2.2(e).
“Acceptance Day” is defined in Section 2.2(e).
“Acceptance Window” means, with respect to any Quotation, the time period designated by Prudential during which the Company may elect to accept such Quotation.
“Accepted Note” is defined in Section 2.2(e).
“Account Control Agreement” means an agreement among an Obligor or a Subsidiary, a depository institution or securities intermediary and the Collateral Agent, which agreement is in form and substance acceptable to the Required Holders and which provides the Collateral Agent with “control” (as such term is used in Article 9 of the UCC) over the deposit account(s) or securities account(s) described therein.
“Acquisition Certificate” is defined in Section 10.2.
“Affiliate” means, at any time, (a) with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, such first Person, (b) with respect to the Company, shall include any Person beneficially owning or holding, directly or indirectly, 10% or more of any class of voting or equity interests of the Company or any Subsidiary (in the case of the Company, excluding any Person who directly owned more than 9% of any class of voting or equity interests of the Company as of December 31, 2023) or any Person of which the Company and its Subsidiaries beneficially own or hold, in the aggregate, directly or indirectly, 10% or more of any class of voting or equity interests and (c) with respect to Prudential, shall include any managed account, investment fund or other vehicle for which Prudential or any Prudential Affiliate acts as investment advisor or portfolio manager. Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company.
“Agreement” means this Note Purchase and Private Shelf Agreement, including all Schedules attached hereto.
“Airex” means Airex, LLC, a New Hampshire limited liability company.
“Alio” means Alio Industries, LLC, a Colorado limited liability company.
Schedule A
“Allied AB” means Allied Motion Stockholm AB, a Swedish corporation.
“Allied B.V.” means Allied Motion Technologies B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law, having its seat (statutaire zetel) in Dordrecht, The Netherlands, and registered with the Dutch Commercial Register (Handelsregister) under number 24365775.
“Allied B.V. Share Pledge Deed” has the meaning set forth in the definition of “Original Security Agreements”.
“Allied Corp.” means Allied Motion Control Corporation, a Colorado corporation.
“Anti-Corruption Law” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding bribery or any other corrupt activity, including the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010.
“Anti-Money Laundering Law” means any law or regulation in a U.S. or any non-U.S. jurisdiction regarding money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes, including the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act) and the USA PATRIOT Act.
“Applicable Foreign Obligor Documents” is defined in Section 5.28.
“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
“Authorized Officer” means (i) in the case of the Company, its chief executive officer, its chief financial officer, any other Person authorized by the Company to act on behalf of the Company and designated as an “Authorized Officer” of the Company in the Information Schedule attached hereto or any other Person authorized by the Company to act on behalf of the Company and designated as an “Authorized Officer” of the Company for the purpose of this Agreement in an Officer’s Certificate executed by the Company’s chief executive officer or chief financial officer and delivered to Prudential, and (ii) in the case of Prudential, any vice president of Prudential or any other officer of Prudential designated as its “Authorized Officer” for the purpose of this Agreement in a certificate executed by one of its Authorized Officers or a lawyer in its law department. Any action taken under this Agreement on behalf of the Company by any individual who on or after the date of this Agreement shall have been an Authorized Officer of the Company and whom Prudential in good faith believes to be an Authorized Officer of the Company at the time of such action shall be binding on the Company even though such individual shall have ceased to be an Authorized Officer of the Company, and any action taken under this Agreement on behalf of Prudential by any individual who on or after the date of this Agreement shall have been an Authorized Officer of Prudential and whom the Company in good faith believes to be an Authorized Officer of Prudential at the time of such action shall be binding on Prudential even though such individual shall have ceased to be an Authorized Officer of Prudential.
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“Available Facility Amount” is defined in Section 2.2(a).
“Bank Agent” means HSBC Bank USA, National Association, in its capacity as administrative agent under the Bank Credit Agreement.
“Bank Credit Agreement” means that certain Third Amended and Restated Credit Agreement, dated as of March 1, 2024, among the Company, Allied B.V., the Bank Lenders, the Bank Agent, HSBC Bank USA, National Association, as L/C Issuer, and HSBC Bank USA, National Association, Xxxxx Fargo Bank, National Association, TD Bank, N.A. and PNC Capital Markets LLC, as Joint Lead Arrangers, as amended, restated, supplemented, modified, refinanced or replaced from time to time.
“Bank Lenders” means, collectively, the lenders from time to time party to the Bank Credit Agreement.
“Bank Loan Documents” means, collectively, the Bank Credit Agreement and each of the other instruments and agreements executed and/or delivered in connection therewith including, without limitation, any post-closing agreements, any promissory notes, any guaranty agreements and any security agreements, pledge agreements or other agreements, instruments or documents that create or purport to create a security interest securing obligations under any Bank Loan Document, and any control agreements, and all amendments or other modifications to any of the foregoing.
“Bank Mandatory Prepayment Notice” is defined in Section 8.7(a).
“Bank Mandatory Prepayment Amount” is defined in Section 8.7(a).
“Bank Mandatory Prepayment Date” is defined in Section 8.7(a).
“Bank Mandatory Prepayment Acceptance Notification Date” is defined in Section 8.7(a).
“Benefit Plan” or “Plan” means any employee benefit plan as defined in Section 3(3) of ERISA, including any employee welfare benefit plan (as defined in section 3(1) of ERISA), any employee pension benefit plan (as defined in Section 3(2) of ERISA), and any plan which is both an employee welfare benefit plan and an employee pension benefit plan, and in respect of which any Loan Party or any ERISA Affiliate is (or, if such Plan were terminated, would under Section 4062 or Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA or with respect to which the Company or any ERISA Affiliate may have any liability.
“Blocked Person” means (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by OFAC, (ii) a Person, entity, organization, country or regime that is blocked or a target of sanctions that have been imposed under U.S. Economic Sanctions Laws or (iii) a Person that is an agent, department or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, any Person, entity, organization, country or regime described in clause (i) or (ii).
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“Business Day” means (a) for the purposes of Section 8.8 only, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed, and (b) for the purposes of any other provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York or Philadelphia, Pennsylvania are required or authorized to be closed.
“Cancellation Date” is defined in Section 2.2(g)(iii).
“Cancellation Fee” is defined in Section 2.2(g)(iii).
“Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Casualty Event” means, with respect to any property of any Person, any loss of or damage to, or any condemnation or other taking of, such property for which such Person or any of its Subsidiaries receives insurance proceeds, or proceeds of a condemnation award or other compensation.
“Change of Control” means the occurrence of any one or more of the following:
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“Change of Control Notice” is defined in Section 8.6(a).
“Change of Control Prepayment Date” is defined in Section 8.6(a).
“Change of Control Acceptance Notification Date” is defined in Section 8.6(a).
“Closing” is defined in Section 3.1.
“Closing Day” means, with respect to the Series A Notes, the Series A Closing Date, and with respect to any Accepted Note, the Business Day specified for the closing of the purchase and sale of such Accepted Note in the Confirmation of Acceptance for such Accepted Note, provided that (i) if the Company and the Purchaser which is obligated to purchase such Accepted Note agree on an earlier Business Day for such closing, the “Closing Day” for such Accepted Note shall be such earlier Business Day, and (ii) if the closing of the purchase and sale of such Accepted Note is rescheduled pursuant to Section 3.3, the Closing Day for such Accepted Note, for all purposes of this Agreement except references to “original Closing Day” in Section 2.2(g)(ii), shall mean the Rescheduled Closing Day with respect to such Accepted Note.
“Code” means the Internal Revenue Code of 1986 and the rules and regulations promulgated thereunder from time to time.
“Collateral” means, collectively, all of the “Collateral” as defined in the Collateral Documents and all of the other property, rights and interests of the Obligors that are or are intended to be subject to the Liens created by the Collateral Documents.
“Collateral Agent” means HSBC Bank USA, National Association, in its capacity as collateral agent under the Intercreditor Agreement, and its successors and permitted assigns in such capacity.
“Collateral Documents” means, collectively, the Original Security Agreements, each Account Control Agreement, the security agreements and pledge agreements entered into pursuant to Section 9.15, and all other collateral assignments, agreements, instruments or documents creating or purporting to create a Lien securing the Note Obligations.
“Commitment Letter” means that certain letter agreement, dated January 2, 2024, between the Company and Prudential.
“Company” is defined in the first paragraph of this Agreement.
“Confidential Information” is defined in Section 20.
“Confirmation of Acceptance” is defined in Section 2.2(e).
“Confirmation of Guaranty” is defined in Section 4.2(n).
“Confirmation of Security” is defined in Section 4.2(o).
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“Consideration” means, in connection with an acquisition or disposition, the aggregate consideration paid, including borrowed funds, cash, the issuance of securities or notes, the assumption or incurring of liabilities (direct or contingent) valued in accordance with GAAP, the payment of consulting fees to prior owners of an acquired business (except to the extent constituting reasonable compensation for services rendered) or fees for a covenant not to compete and any other consideration paid for the acquisition or disposition; excluding, however, the payment of any fees to any investment banker or the assumption of any trade payables and short term accruals in the ordinary course of business in connection with such acquisition or disposition.
“Consolidated” or “Consolidated Basis” means, when used with reference to financial statement items of the Company and its Subsidiaries or any other Person, such statements or items on a consolidated basis in accordance with the consolidation principles of GAAP.
“Consolidated EBITDA” means, for any Reference Period and without duplication, (a) Consolidated Net Income for such period, plus (b) to the extent deducted in calculating Consolidated Net Income and without duplication (i) income taxes expensed during such period by the Company and its Subsidiaries, (ii) Interest Expense during such period, (iii) depreciation, amortization and other Non-Cash Charges accrued for such period, (iv) non-cash losses from any Casualty Event, Disposition or discontinued operation during such period, and (v) stock compensation expense, minus (c) to the extent such items were added in calculating Consolidated Net Income (i) Extraordinary Gains during such period, (ii) gains from any Casualty Event, Disposition or discontinued operation during such period, (iii) interest income, royalty payments and other income during such period, (iv) federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such period, and (v) all non-cash income items for such period; provided that notwithstanding anything to the contrary in this definition, for purposes of computing any pro-forma calculation required by this Agreement, the term “Consolidated EBITDA” shall be computed, on a consistent basis, to reflect purchases and acquisitions, whether a Permitted Acquisition or otherwise, and sales of assets of the Company or a Subsidiary constituting a business line or division, by the Company or a Subsidiary during the Reference Period as if they had occurred at the beginning of such Reference Period, and the Company, during the twelve (12) month period following the date of any purchases and acquisitions, may include in the calculation of Consolidated EBITDA the necessary portion of the adjusted historical results attributable to the assets, businesses or entities acquired in acquisitions that were achieved prior to the applicable date of the acquisition for such time period as is necessary for the Company to have figures for a full Reference Period from the date of determination with respect to such acquired entities.
“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries on a consolidated basis in accordance with GAAP, the net income of the Company and its Subsidiaries.
“Consolidated Total Assets” means, as of any date of determination, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or a similar caption) on a Consolidated balance sheet of the Company and all Subsidiaries at such date.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
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“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; and the terms “Controlled” and “Controlling” shall have meanings correlative to the foregoing.
“Controlled Entity” means (i) any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates and (ii) if the Company has a parent company, such parent company and its Controlled Affiliates.
“Creditors” shall have the meaning specified in the Intercreditor Agreement.
“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” with respect to any Note, has the meaning given in such Note.
“Delayed Delivery Fee” is defined in Section 2.2(g)(ii).
“Disclosure Documents” is defined in Section 5.3.
“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.
“Dollars” or “$” means lawful currency of the United States of America.
“Domestic Obligor” means an Obligor that is organized under the laws of any political subdivision of the United States.
“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States.
“Dordrecht” means Allied Motion Dordrecht B.V. (formerly known as Precision Motor Technology B.V.), a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law, having its seat (statutaire zetel) in Dordrecht, The Netherlands, its registered office at Opaal 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, and registered with the Dutch Commercial Register (Handelsregister) under number 23086029.
“Dutch Obligor” means an Obligor that is incorporated or established in The Netherlands.
“Emoteq” means Emoteq Corporation, a Colorado corporation.
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“Environmental Claim” is defined in Section 5.19.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including, but not limited to, those related to hazardous substances or wastes, air emissions and discharges to waste or public systems or other Hazardous Materials.
“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended by the Multiemployer Pension Plan Amendment Act of 1980, and as otherwise amended from time to time.
“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan, including the failure of the Company or any Subsidiary to make minimum required contributions (within the meaning of Section 4.12(a)(2)(A) of the Code); (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization (except as otherwise disclosed in Schedule 5.12); (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title I or IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate; (g) the failure to make by its due date a required installment under Section 430(j) of the Code with respect to any Pension Plan or failure by the Company or any ERISA Affiliate to make any required contribution to a Multiemployer Plan; (h) any failure by any Pension Plan to satisfy the minimum funding standards (within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA) applicable to such Pension
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Plan, whether or not waived or the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (i) the existence with respect to any Plan of a non-exempt Prohibited Transaction; or (j) a determination that any Pension Plan is, or is expected to be, in “at risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA.
“Event of Default” is defined in Section 11.
“Existing Bank Credit Agreement” means that certain Second Amended and Restated Credit Agreement, dated as of August 23, 2022, among the Company, as a borrower, Allied B.V., as a borrower, the lenders party thereto, HSBC Bank USA, National Association, as administrative agent and L/C Issuer, and HSBC Bank USA, National Association, KeyBank National Association, Xxxxx Fargo Bank, National Association and JPMorgan Chase Bank, N.A., as Joint Lead Arrangers.
“Excluded Accounts” has the meaning set forth in the U.S. General Security Agreement.
“Extraordinary Gains” means, with respect to any period, any extraordinary gains, as defined under GAAP.
“Facility” is defined in Section 2.2(a).
“FATCA” means (a) sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), together with any current or future regulations or official interpretations thereof, (b) any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States of America and any other jurisdiction, which (in either case) facilitates the implementation of the foregoing clause (a), and (c) any agreements entered into pursuant to section 1471(b)(1) of the Code.
“Fee Letter” means that certain letter agreement dated March 1, 2024 entered into between Prudential and the Company regarding fees payable to Prudential.
“Finance Documents” means, collectively, this Agreement, each Note, each Guaranty Agreement, each Confirmation of Guaranty, each Confirmation of Security, each Request for Purchase, each Confirmation of Acceptance, the Intercreditor Agreement, each Collateral Document, the Fee Letter and each document designated as a “Finance Document” in a writing signed by the Company and Prudential and/or the Required Holders, and all amendments, restatements, supplements or modifications to any of the foregoing.
“Foreign Obligor” means an Obligor that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.
“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia.
“FRB” means the Board of Governors of the Federal Reserve System of the United States.
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“Funded Indebtedness” means, with respect to the Company and its Subsidiaries, the sum, without duplication, of (a) the aggregate amount of Indebtedness of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP, relating to (i) the borrowing of money or the obtaining of credit, including the issuance of notes or bonds, (ii) in respect of any Synthetic Lease Obligations or any Capital Lease Obligations, and (iii) the maximum drawing amount of all letters of credit outstanding, plus (b) Indebtedness of the type referred to in clause (a) of another Person guaranteed by the Company or any of its Subsidiaries minus unrestricted domestic cash (consisting of xxxxx cash and cash on deposit in United States based bank accounts) and cash equivalents (each as defined under GAAP).
“Funding Instruction Letter” is defined in Section 4.1(n).
“GAAP” means generally accepted accounting principles in the United States set forth in the Accounting Standards Codification promulgated by the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied, except for the purposes of the books and records of the Foreign Obligors only, “GAAP” means the IFRS or generally accepted accounting principles applicable in The Netherlands or Canada. The financial statements of the Foreign Obligors to be delivered under Section 7.1 must be presented under the foregoing described generally accepted accounting principles applicable in the United States.
“Globe Inc.” means Globe Motors, Inc., a Delaware corporation.
“Globe Lda.” means Allied Motion Portugal, Lda., a private limited company organized under the laws of Portugal.
“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guarantors” means, collectively, the Original Guarantors and each other Person that has executed and delivered a Guaranty Agreement, in each case so long as such Person’s Guaranty Agreement is in full force and effect and such Person has not been discharged and released from its obligations under its Guaranty Agreement.
“Guarantor Notice” is defined in Section 9.9.
“Guaranty” means, as to any Person, any (a) obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
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obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guaranty shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guaranty is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guaranty” as a verb has a corresponding meaning.
“Guaranty Agreements” means, collectively, the Original Guaranty Agreement and any other agreement made by any Person as guarantor, in favor of the holders of the Notes, providing for the guaranty by such Person of the Note Obligations and in form and substance satisfactory to the Required Holders.
“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.
“Hedge Treasury Note(s)” means, with respect to any Accepted Note, the United States Treasury Note or Notes whose average life (as determined by Prudential) most closely matches the average life of such Accepted Note.
“Heidrive” means Heidrive GmbH, a German limited liability company.
“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 12, 17.2 and 18 and any related definitions in this Schedule A, “holder” shall mean the beneficial owner of such Note whose name and address appears in such register.
“Hostile Tender Offer” shall mean, with respect to the use of proceeds of any Note, any offer to purchase, or any purchase of, shares of capital stock of any corporation or equity interests in any other entity, or securities convertible into or representing the beneficial ownership of, or rights to acquire, any such shares or equity interests, if such shares, equity interests, securities or
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rights are of a class which is publicly traded on any securities exchange or in any over-the-counter market, other than purchases of such shares, equity interests, securities or rights representing less than 5% of the equity interests or beneficial ownership of such corporation or other entity for portfolio investment purposes, and such offer or purchase has not been duly approved by the board of directors of such corporation or the equivalent governing body of such other entity prior to the date on which the Company makes the Request for Purchase of such Note.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements delivered under to referred to herein.
“Incorporated Provision” is defined in Section 9.10.
“Incorporated Provision Termination Date” means, in respect of any Incorporated Provision, the day on which the holders of Notes receive an Officer’s Certificate satisfying the requirements of Section 7.2 with respect to the next subsequent quarterly fiscal period of the Company following the quarterly fiscal period in which such Incorporated Provision is deleted or otherwise removed from all applicable Material Credit Facilities or all such Material Credit Facilities are terminated, as applicable.
“Increased Leverage Period” is defined in Section 10.10.
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
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For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any Capital Lease Obligation or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.
“INHAM Exemption” is defined in Section 6.2(e).
“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Note.
“Intercreditor Agreement” means that certain Intercreditor and Collateral Agency Agreement, dated as of March 1, 2024, by and among the Bank Agent, the Series A Purchasers, each other holder of a Note that becomes a party thereto, each other Creditor that becomes a party thereto and the Collateral Agent.
“Interest Coverage Ratio” means, as of any date of determination, the ratio as of the last day of any fiscal quarter of the Company ending on the date of determination (a) Consolidated EBITDA for the four consecutive fiscal quarters then ended to (b) Interest Expense for such period.
“Interest Expense” means, for any period, the sum, without duplication, for the Company and its Subsidiaries (determined on a consolidated basis in accordance with GAAP), of the following: (a) all interest in respect of Indebtedness accrued or paid during such period (whether or not actually paid during such period), plus (b) the net amounts paid (or minus the net amounts received) in respect of interest rate Swap Contracts during such period, excluding reimbursement of legal fees and other similar transaction costs and excluding payments required by reason of the early termination of interest rate Swap Contracts, plus (c) all fees, including letter of credit fees and expenses (but excluding reimbursement of legal fees), plus (d) the amortization of financing costs in connection with Indebtedness.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guaranty or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guaranties Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any
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Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“IP Rights” is defined in Section 5.11.
“Issuance Period” is defined in Section 2.2(b).
“IRS” means the United States Internal Revenue Service.
“Kinetic” means Kinetic Machine Development, LLC, a New York limited liability company.
“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case having the force of law.
“Leverage Increase” is defined in Section 10.10.
“Leverage Ratio” means, as of any date of determination, the ratio of (a) Funded Indebtedness (which shall include the L/C Obligations (as such term is defined in the Bank Credit Agreement)) of the Company and its Subsidiaries outstanding on such date to (b) Consolidated EBITDA for the Reference Period ended on such date.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Liquidity” means, as of any date of determination, the sum of (a) the aggregate cash on hand of the Company and its Subsidiaries, plus (b) the aggregate cash equivalents (as defined under GAAP) of the Company and its Subsidiaries, plus (c) the amount of any unused revolving loan commitments of the Bank Lenders under the Bank Credit Agreement.
“Make-Whole Amount” is defined in Section 8.8.
“Material” means material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company and its Subsidiaries taken as a whole.
“Material Acquisition” means any Permitted Acquisition (whether by direct purchase, merger or otherwise, and whether in one or more related transactions) by the Company or any Subsidiary of the Company in which the total Consideration for such acquisition exceeds $15,000,000 (or the equivalent in any other currency).
Schedule A - 14
“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, assets, liabilities (actual or contingent), condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (b) a material impairment of the ability of any Obligor to perform its obligations under any Finance Document to which it is a party or (c) a material adverse effect upon, or material impairment of, the legality, validity, binding effect, enforceability or rights and remedies of the Collateral Agent or the holders of the Notes against any Obligor under any Finance Document to which it is a party.
“Material Credit Facility” means:
“Material Rental Obligation” means the obligation of the Obligors to pay rent under any one or more operating leases with respect to any real or personal property that is material to the business of such Obligor.
“Maturity Date” is defined in each Note.
“More Favorable Provision” is defined in Section 9.10.
“Most Favored Lender Notice” means, in respect of any More Favorable Provision, a written notice to Prudential and each of the holders of the Notes delivered promptly, and in any event within five Business Days after the inclusion of such More Favorable Provision in any Material Credit Facility (including by way of amendment or other modification of any existing provision thereof) from a Senior Financial Officer referring to the provisions and setting forth a verbatim statement of such More Favorable Provision (including any defined terms used therein) and related explanatory calculations, as applicable.
“MPC” means Motor Products Corporation, a Delaware corporation.
“Multiemployer Plan” means a Plan which is a multiemployer plan as defined in Section 3(37) of ERISA to which the Company or any ERISA Affiliate has an obligation to contribute.
“NAIC” means the National Association of Insurance Commissioners.
“Non-Cash Charges” means, with respect to any calculation of Consolidated Net Income for any period, all non-cash charges related to incentive stock compensation, all non-cash
Schedule A - 15
extraordinary losses and charges deducted in such calculation, as determined in accordance with GAAP (excluding inventory and account receiveable write-downs and charge-offs), including, without limitation, non-cash recognition of unrealized declines in the market value of marketable securities recorded in accordance with ASC No. 320, non-cash asset impairment charges recorded in accordance with ASC No. 350 and ASC No. 360, and non-cash restructuring charges.
“Non-Material Covenant Subsidiary” means a Non-Material Subsidiary that, as of the date of determination, (a) has been a Subsidiary for at least ninety (90) days, (b) is not a Guarantor and (c) with respect to which no Guarantor Notice has been delivered by the Company within the past ninety (90) days.
“Non-Material Subsidiary” means a Subsidiary of the Company that has, as of the date of determination, assets equal to less than ten percent (10%) of Consolidated Total Assets based on the quarterly consolidated financial statements of the Company most recently delivered to the holders of the Notes.
“Non-U.S. Plan” means any plan, fund or other similar program that (a) is established or maintained outside the United States of America by the Company or any Subsidiary primarily for the benefit of employees of the Company or one or more Subsidiaries residing outside the United States of America, which plan, fund or other similar program provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and (b) is not subject to ERISA or the Code.
“Note Obligations” means, collectively, all Indebtedness evidenced by the Notes and all present and future advances to, and debts, liabilities, obligations, covenants and duties of, any Obligor arising under any Finance Document or otherwise with respect to any Finance Document or the enforcement or collection thereof, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising, including the Make-Whole Amount with respect to any Note and the fees, charges and disbursements of counsel, and including interest and fees that accrue after the commencement by or against the any Obligor or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Obligor or such Affiliate as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.
“Note” and “Notes” are defined in Section 1.2.
“NRSRO” means (a) each of (i) S&P Global Ratings, a division of S&P Global Inc., or any successor thereto, (ii) Xxxxx’x Investors Service, Inc., or any successor thereto, (iii) Fitch Ratings, Inc., or any successor thereto, (iv) A.M. Best Rating Services, Inc., or any successor thereto, (v) DBRS, Inc., or any successor thereto, and (vi) Xxxxx Bond Rating Agency, Inc., or any successor thereto, and (b) any other credit rating agency that is recognized as a nationally recognized statistical rating organization by the SEC and approved by the Required Holders, in the case of each of clauses (a) and (b) above, so long as such credit rating agency continues to be a nationally recognized statistical rating organization recognized by the SEC and is approved as a “Credit Rating Provider” (or other similar designation) by the NAIC.
“NRSRO Rating” is defined in Section 9.14.
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“Obligations” shall have the meaning specified in the Intercreditor Agreement.
“Obligors” means, collectively, the Company and the Guarantors.
“OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury.
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at xxxx://xxx.xxxxxxxx.xxx/xxxxxxxx-xxxxxx/xxxxxxxxx/Xxxxxxxx/Xxxxx/Xxxxxxxx.xxxx.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.
“Organizational Documents” means: (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement, (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity and (d) with respect to any entity organized under the laws of the Netherlands, an up to date extract from the Dutch Commercial Register (Handelsregister), its deed of incorporation, its articles of association and an up to date copy of its shareholders register.
“Original Guarantors” means, collectively, Airex, Alio, Allied AB, Allied B.V., Allied Corp., Dordrecht, Emoteq, Globe Inc., Globe Lda., Heidrive, Kinetic, MPC, Ormec, SNC, Spectrum, Stature, TCI, Thingap and Twinsburg.
“Original Guaranty Agreement” means that certain Guaranty Agreement, dated the Series A Closing Date, made by Airex, Alio, Allied AB, Allied B.V., Allied Corp., Dordrecht, Emoteq, Globe Inc., Globe Lda., Heidrive, Kinetic, MPC, Ormec, SNC, Spectrum, Stature, TCI, Thingap and Twinsburg, in favor of the holders of the Notes.
“Original Security Agreements” means, collectively:
Schedule A - 17
“Ormec” means Ormec Systems Corp., a New York corporation.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions.
“Pension Plan” means any Plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA and 430 of the Code or Section 302 of ERISA and in respect of which the Company or any ERISA Affiliate is (or if such Plan were terminated, would under Section 4062 or 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA or any other Plan with respect to which the Company or any ERISA Affiliate has incurred or may incur liability, including contingent liability, under Title IV of ERISA, to such plan or to PBGC.
“Permitted Acquisition” is defined in Section 10.2.
“Permitted Lien” means a Lien permitted under Section 10.1.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.
“Plan” has the meaning set forth in the definition of “Benefit Plan”.
“Private Rating Letter” means a letter issued by an NRSRO in connection with any private debt rating for the Notes, which (a) sets forth the debt rating for the Notes, (b) refers to the Private Placement Number issued by the PPN CUSIP Unit of CUSIP Global Services (in cooperation with the SVO) in respect of the Notes, (c) addresses the likelihood of payment of both principal and interest on the Notes (which requirement shall be deemed satisfied if either (i) such letter includes confirmation that the rating reflects the NRSRO’s assessment of the Company’s ability to make timely payment of principal and interest on the Notes or a similar statement or (ii) such letter is silent as to the NRSRO’s assessment of the likelihood of payment of both principal and interest and does not include any indication to the contrary), (d) includes such other information describing the relevant terms of the Notes as may be required from time to time by the SVO or any other Governmental Authority having jurisdiction over any holder of the Notes and
Schedule A - 18
(e) shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the letter from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of the Notes.
“Private Rating Rationale Report” means, with respect to any Private Rating Letter, a report issued by the NRSRO in connection with such Private Rating Letter setting forth an analytical review of the Notes explaining the transaction structure, methodology relied upon, and, as appropriate, analysis of the credit, legal, and operational risks and mitigants supporting the assigned private debt rating for the Notes, in each case, on the letterhead of the NRSRO or its controlled website and generally consistent with the work product that an NRSRO would produce for a similar publicly rated security and otherwise in form and substance generally required by the SVO or any other Governmental Authority having jurisdiction over any holder of the Notes from time to time. Such report shall not be subject to confidentiality provisions or other restrictions which would prevent or limit the report from being shared with the SVO or any other Governmental Authority having jurisdiction over any holder of the Notes.
“Pro Rata Share” means, with respect to any Note and any mandatory prepayment of Indebtedness under the Bank Loan Documents, an amount equal to the product of:
(a)the Bank Mandatory Prepayment Amount, multiplied by
(b)a fraction, the numerator of which is the outstanding principal amount of such Note, and the denominator of which is the sum of (i) the aggregate outstanding principal amount of all Notes plus (ii) the aggregate outstanding principal amount of Indebtedness subject to such mandatory prepayment under the Bank Loan Documents.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, xxxxxx or inchoate.
“Prudential” is defined in the addressee line to this Agreement.
“Prudential Affiliate” means any Affiliate of Prudential.
“PTE” is defined in Section 6.2(a).
“Purchaser” or “Purchasers” means each Series A Purchaser and each other Prudential Affiliate that executes and delivers this Agreement and/or a Confirmation of Acceptance as a Purchaser and their successors and assigns (so long as any such assignment complies with Section 13.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 13.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.
“QPAM Exemption” is defined in Section 6.2(d).
“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.
Schedule A - 19
“Quotation” shall have the meaning provided in Section 2.2(d).
“Reference Period” means, as of any date of determination, the period of four (4) consecutive fiscal quarters of the Company and its Subsidiaries ending on such date, or if such date is not a fiscal quarter end date, the period of four (4) consecutive fiscal quarters most recently ended (in each case treated as a single accounting period).
“Related Fund” means, with respect to any holder of any Note, any fund or entity that (i) invests in Securities or bank loans, and (ii) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or such investment advisor.
“Relevant Provision” means any financial covenant, affirmative covenant, negative covenant, event of default, accounting provision or other related provision.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA.
“Request for Purchase” is defined in Section 2.2(c).
“Required Holders” means at any time on or after the date of this Agreement, the holders of more than 50% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates or any Guarantor), and if at any relevant time, there are no Notes outstanding, then Prudential shall constitute the Required Holders.
“Rescheduled Closing Day” is defined in Section 3.3.
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement.
“Restricted Payment” means (i) any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Company’s or any Subsidiary’s stockholders, partners or members (or the equivalent Person thereof), (ii) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of stock of, or other equity interest in, the Company or any of its Subsidiaries now or hereafter outstanding, (iii) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of stock of, or other equity interest in, the Company or any of its Subsidiaries, (iv) any payment or prepayment of principal of, premium, if any, or interest on, or redemption purchase, retirement, defeasance (including economic or legal defeasance), sinking fund or similar payment with respect to any intercompany Indebtedness owing by the Company or any Subsidiary, and (v) any payment made to any Affiliates of the Company or any of its Subsidiaries in respect of management, consulting or other similar services provided to the Company or any of its Subsidiaries; provided, however, “Restricted Payment” shall not shall not include any payment for the purchase or redemption of shares of stock of the Company held by (a) any employee of the Company or any of its Subsidiaries if the sole purpose of such payment is to provide funds for the payment of taxes with respect to
Schedule A - 20
shares of the Company held by such employee, and (b) any employee stock ownership plan or trust if the sole purpose of such payment is to provide funds for payments by such plan or trust of payments that are required to be made to employees of the Company or its Subsidiaries.
“SEC” means the Securities and Exchange Commission of the United States of America.
“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act.
“Securities Act” means the Securities Act of 1933 and the rules and regulations promulgated thereunder from time to time in effect.
“Senior Financial Officer” means the president or chief financial officer of the Company.
“Series” is defined in Section 1.2.
“Series A Closing” is defined in Section 3.1.
“Series A Closing Date” is defined in Section 3.1.
“Series A Notes” is defined in Section 1.1.
“Series A Purchaser” is defined in the addressee line to this Agreement.
“Shelf Closing” means, with respect to any Series of Shelf Notes, the closing of the sale and purchase of such Series of Shelf Notes.
“Shelf Notes” is defined in Section 1.2.
“SNC” means SNC Manufacturing Co., Inc., a Wisconsin corporation.
“Solvent” means, with respect to any Person on a particular date, that, at fair valuations, (a) the sum of such Person’s assets is greater than (i) all of such Person’s consolidated liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) and (ii) the amount required to pay such liabilities as they become absolute, matured or otherwise become due in the normal course of business, (b) such Person has the ability to pay its debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) as they become absolute, matured or otherwise become due in the normal course of business and (c) such Person does not have an unreasonably small amount of capital with which to conduct its business. The amount of contingent liabilities at any time shall be computed as the amount that, in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Source” is defined in Section 6.2.
“Spectrum” means Spectrum Controls, Inc., a Washington corporation.
“Stature” means Stature Electric, Inc., a Pennsylvania corporation.
Schedule A - 21
“State Sanctions List” means a list that is adopted by any state Governmental Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions Laws.
“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company. For purposes of this Agreement, a Subsidiary of the Company shall be deemed a “Subsidiary” on the date of formation and shall cease to be deemed a “Subsidiary” on the date of merger, dissolution, liquidation or consolidation, as applicable, in accordance with the terms of this Agreement.
“Substitute Purchaser” is defined in Section 21.
“SVO” means the Securities Valuation Office of the NAIC.
“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease” means, with respect to any Person as of any date of determination thereof, all obligations of such Person in respect of transactions entered into by such Person that are intended to function primarily as a borrowing of funds but are not otherwise included in the
Schedule A - 22
definition of “Indebtedness” or as a liability on the Consolidated balance sheet of such Person and its Subsidiaries in accordance with GAAP.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Target” is defined in Section 10.2.
“TCI” means TCI, LLC, a Wisconsin limited liability company.
“Thingap” means ThinGap, Inc., a Delaware corporation.
“Threshold Amount” means $2,000,000 (or the equivalent in any other currency).
“Transtar” means Transtar International, LLC, a Michigan limited liability company.
“Twinsburg” means Allied Motion Twinsburg, LLC, a Delaware limited liability company.
“UCC” means the Uniform Commercial Code in effect in the State of New York.
“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.
“United States” and “U.S.” mean the United States of America.
“United States Person” has the meaning set forth in Section 7701(a)(30) of the Code.
“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 and the rules and regulations promulgated thereunder from time to time in effect.
“U.S. Copyright Security Agreement” has the meaning set forth in the definition of “Original Security Agreements”.
“U.S. Economic Sanctions Laws” means those laws, executive orders, enabling legislation or regulations administered and enforced by the United States pursuant to which economic sanctions have been imposed on any Person, entity, organization, country or regime, including the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Iran Sanctions Act, the Sudan Accountability and Divestment Act and any other OFAC Sanctions Program.
Schedule A - 23
“U.S. General Security Agreement” has the meaning set forth in the definition of “Original Security Agreements”.
“U.S. Patent and Trademark Security Agreement” has the meaning set forth in the definition of “Original Security Agreements”.
“U.S. Pledge Security Agreement” has the meaning set forth in the definition of “Original Security Agreements”.
“Wholly-Owned Subsidiary” means any Subsidiary of the Company all of the outstanding capital stock or other equity interests of every class of which is owned by the Company or another Wholly-Owned Subsidiary of the Company, and which has outstanding no options, warrants, rights or other securities entitling the holder thereof (other than the Company or a Wholly-Owned Subsidiary) to acquire shares of capital stock or other Equity Interests of such Subsidiary.
Schedule A - 24
Schedule 1-A
Form of Series A Note
Series A Senior Note Due March 21, 2031
FOR VALUE RECEIVED, the undersigned, ALLIENT INC., a Colorado corporation (the “Company”), hereby promises to pay to [____________], or registered assigns, the principal sum of [_____________________] Dollars (or so much thereof as shall not have been prepaid) on March 21, 2031 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 5.96% per annum (or, at any time an Increased Leverage Period is in effect, 6.46% per annum) from the date hereof, payable quarterly, on the 21st day of March, June, September and December in each year, commencing with the March 21, June 21, September 21 or December 21 next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, (x) on any overdue payment of interest and (y) during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum (the “Default Rate”) from time to time equal to the greater of (i) 7.96% (or, at any time an Increased Leverage Period is in effect, 8.46%) or (ii) 2% over the rate of interest publicly announced by HSBC Bank USA, National Association from time to time in New York, New York as its “base” or “prime” rate, payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of HSBC Bank USA, National Association in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase and Private Shelf Agreement, dated March 1, 2024 (as from time to time amended, restated, supplemented or otherwise modified, the “Note Purchase Agreement”), between the Company, PGIM, Inc., the Purchasers named therein and each Prudential Affiliate that becomes a party thereto and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
Schedule 1-A
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
This Note is subject to prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
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Schedule 1-B - 2
Schedule 1-B
Form of Shelf Note
Series [____] Senior Note Due [__________, ____]
PPN: [______________]
Original Principal Amount: $[____]
Original Issue Date: [____]
Interest Rate: [__]% per annum (or, at any time an Increased Leverage Period is in effect, [____]% per annum)
Interest Payment Dates: [____]
Final Maturity Date: [____]
Principal Prepayment Dates and Amounts: [____]
For Value Received, the undersigned, ALLIENT Inc., a Colorado corporation (the “Company”), hereby promises to pay to [____________], or registered assigns, the principal sum of [_____________________] Dollars [on the final maturity date specified above (the “Maturity Date”) (or so much thereof as shall not have been prepaid),][, payable on the principal prepayment dates and in the amounts specified above, and on the final maturity date specified above (the “Maturity Date”) in an amount equal to the unpaid balance of the principal hereof,] with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the interest rate per annum specified above from the date hereof, payable on each interest payment date specified above in each year and on the Maturity Date, commencing with the interest payment date next succeeding the date hereof, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at a rate per annum (the “Default Rate”) from time to time equal to the greater of (i) 2% over the interest rate specified above or (ii) 2% over the rate of interest publicly announced by HSBC Bank USA, National Association from time to time in New York, New York as its “base” or “prime” rate with respect to Dollars, payable on each interest payment date specified above as aforesaid (or, at the option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of HSBC Bank USA, National Association in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the “Notes”) issued pursuant to the Note Purchase and Private Shelf Agreement, dated March 1, 2024 (as from time to time
Information Schedule
amended, restated, supplemented or otherwise modified, the “Note Purchase Agreement”), between the Company, PGIM, Inc., the Purchasers named therein and each Prudential Affiliate that becomes a party thereto and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.
This Note is a registered Note and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer, accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the Person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.
The Company will make required prepayments of principal on the dates and in the amounts specified above and in the Note Purchase Agreement. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York, excluding choice-of-law principles of the law of such state that would permit the application of the laws of a jurisdiction other than such state.
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Information Schedule - 2
