EXHIBIT 10.2
GUARANTY AND SECURITY AGREEMENT
dated as of April 29, 2021
made by
Danimer Scientific Holdings, LLC,
a Delaware limited liability company,
Meredian, Inc.,
a Georgia corporation,
Meredian Bioplastics, Inc.,
a Georgia corporation,
Danimer Scientific, L.L.C.,
a Georgia limited liability company,
Danimer Bioplastics, Inc.,
a Georgia corporation, and
Danimer Scientific Kentucky, Inc.,
a Delaware corporation,
as Borrowers,
DANIMER SCIENTIFIC, INC.,
a Delaware corporation, and
MEREDIAN HOLDINGS GROUP, INC.,
a Delaware corporation,
as Guarantors,
and
THE OTHER GRANTORS FROM TIME TO TIME PARTY HERETO
in favor of
TRUIST BANK,
as Lender
EXHIBIT 10.2
TABLE OF CONTENTS
ARTICLE I DEFINITIONS 1
Section 1.1. Definitions. 1
Section 1.2. Other Definitional Provisions; References 4
ARTICLE II GUARANTEE 4
Section 2.1. Guarantee. 4
Section 2.2. Payments 6
ARTICLE III GRANT OF SECURITY INTEREST 6
Section 3.1. Grant of Security Interest 6
Section 3.2. [Intentionally Omitted] 8
Section 3.3. Grantors Remain Liable under Accounts, Chattel Paper and Payment Intangibles 8
ARTICLE IV ACKNOWLEDGMENTS, WAIVERS AND CONSENTS 8
Section 4.1. Acknowledgments, Waivers and Consents 8
Section 4.2. No Subrogation, Contribution or Reimbursement 10
ARTICLE V REPRESENTATIONS AND WARRANTIES 11
Section 5.1. Confirmation of Representations in Credit Agreement 11
Section 5.2. Benefit to the Guarantors 11
Section 5.3. Promissory Notes 11
Section 5.4. First Priority Liens 11
Section 5.5. Legal Name, Organizational Status, Chief Executive Office 11
Section 5.6. Prior Names, Prior Chief Executive Offices 12
Section 5.7. Goods 12
Section 5.8. Chattel Paper 12
Section 5.9. Truth of Information 12
Section 5.10. Accounts 12
Section 5.11. Governmental Obligors 12
Section 5.12. Copyrights, Patents and Trademarks 12
Section 5.13. Vehicles 12
Section 5.14. Commercial Tort Claims 12
Section 5.15. Letter-of-Credit Rights 13
ARTICLE VI COVENANTS 13
Section 6.1. Covenants in Credit Agreement 13
Section 6.2. Maintenance of Perfected Security Interest; Further Documentation 13
Section 6.3. Maintenance of Records 14
Section 6.4. Right of Inspection 14
Section 6.5. Further Identification of Collateral 14
Section 6.6. Changes in Names, Locations 14
Section 6.7. Compliance with Contractual Obligations 15
Section 6.8. Limitations on Dispositions of Collateral 15
Section 6.9. [Intentionally Omitted] 15
Section 6.10. Limitations on Modifications, Waivers, Extensions of Agreements Giving Rise to Accounts 15
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Section 6.11. Analysis of Accounts 15
Section 6.12. Instruments and Tangible Chattel Paper 15
Section 6.13. Copyrights, Patents and Trademarks 16
Section 6.14. Vehicles 17
Section 6.15. Commercial Tort Claims 17
ARTICLE VII REMEDIAL PROVISIONS 17
Section 7.1. [Intentionally Omitted] 17
Section 7.2. Collections on Accounts 17
Section 7.3. Proceeds 18
Section 7.4. UCC and Other Remedies 18
Section 7.6. Waiver; Deficiency 19
Section 7.7. Non-Judicial Enforcement 19
ARTICLE VIII LENDER 19
Section 8.1. Lender's Appointment as Attorney-in-Fact 19
Section 8.2. Duty of Lender 21
Section 8.3. Filing of Financing Statements 21
Section 8.4. Authority of Lender 21
ARTICLE IX SUBORDINATION OF INDEBTEDNESS 22
Section 9.1. Subordination of All Guarantor Claims 22
Section 9.2. Claims in Bankruptcy 22
Section 9.3. Payments Held in Trust 22
Section 9.4. Liens Subordinate 22
Section 9.5. Notation of Records 23
ARTICLE X MISCELLANEOUS 23
Section 10.1. Waiver 23
Section 10.2. Notices 23
Section 10.3. Payment of Expenses, Indemnities 23
Section 10.4. Amendments in Writing 24
Section 10.5. Successors and Assigns 24
Section 10.6. Severability 24
Section 10.7. Counterparts 24
Section 10.8. Survival 24
Section 10.9. Captions 24
Section 10.10. No Oral Agreements 24
Section 10.11. Governing Law; Submission to Jurisdiction 25
Section 10.12. WAIVER OF JURY TRIAL 25
Section 10.13. Acknowledgments 25
Section 10.14. Additional Grantors 26
Section 10.15. Set-Off 26
Section 10.16. Releases 27
Section 10.17. Reinstatement 27
Section 10.18. Acceptance 27
Section 10.19. Keepwell 27
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EXHIBIT 10.2
Schedules
Schedule 1 - Notice Addresses
Schedule 2 - Promissory Notes
Schedule 3 - Filings and Other Actions Required to Perfect Security Interests
Schedule 4 - Legal Name, Organizational Status, Chief Executive Office
Schedule 5 - Prior Names and Prior Chief Executive Offices
Schedule 6 - Patents and Patent Licenses
Schedule 7 - Trademarks and Trademark Licenses
Schedule 8 - Copyrights and Copyright Licenses
Schedule 9 - Vehicles
Schedule 10 - Commercial Tort Claims
Schedule 11 - Letter-of-Credit Rights
Annexes
Annex I - Form of Joinder Agreement
Annex II - Form of Intellectual Property Security Agreement
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EXHIBIT 10.2
GUARANTY AND SECURITY AGREEMENT
THIS GUARANTY AND SECURITY AGREEMENT, dated as of April 29, 2021, is made by Danimer Scientific Holdings, LLC, a Delaware limited liability company, Meredian, Inc., a Georgia corporation, Meredian Bioplastics, Inc., a Georgia corporation, Danimer Scientific, L.L.C., a Georgia limited liability company, Danimer Bioplastics, Inc., a Georgia corporation, and Danimer Scientific Kentucky, Inc., a Delaware corporation (individually, a "Borrower" and collectively, the "Borrowers"), and DANIMER SCIENTIFIC, INC., a Delaware corporation ("PubCo"), and MEREDIAN HOLDINGS GROUP, INC., a Delaware corporation ("Parent"; Parent and PubCo, together with Borrowers and with any other Subsidiary of PubCo that becomes a party hereto from time to time after the date hereof, each, a "Grantor" and, collectively, the "Grantors"), in favor of TRUIST BANK, as Lender under (and as defined in) the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Borrowers are entering into that certain Revolving Credit Agreement dated as of the date hereof, by and among the Borrowers and Lender providing for revolving credit, letter of credit and certain other facilities (as amended, restated, supplemented, replaced, increased, refinanced or otherwise modified from time to time, the "Credit Agreement"); and
WHEREAS, it is a condition precedent to the obligations of Lender under the Loan Documents that the Grantors enter into this Agreement, pursuant to which (a) Guarantors shall guaranty all Obligations of the Borrowers and (b) the Grantors (other than PubCo and Parent) shall grant Liens on all of their personal property to Lender to secure their respective Obligations;
NOW, THEREFORE, in consideration of the premises and to induce Lender to enter into the Credit Agreement and make extensions of credit to the Borrowers thereunder, each Grantor hereby agrees with Lender as follows:
DEFINITIONS
"Agreement" shall mean this Guaranty and Security Agreement, as amended, restated, supplemented or otherwise modified from time to time.
"Collateral" shall have the meaning set forth in Section 3.1.
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EXHIBIT 10.2
"Copyright Licenses" shall mean any and all present and future agreements providing for the granting of any right in or to Copyrights (whether the applicable Grantor is licensee or licensor thereunder), including any thereof referred to in Schedule 8.
"Copyrights" shall mean, collectively, with respect to each Grantor, all copyrights, whether registered or unregistered, owned by or assigned to such Grantor and all registrations and applications for the foregoing (whether by statutory or common law, whether established or registered in the United States, any State thereof, or any other country or any political subdivision thereof and, in each case, whether owned by or licensed to such Grantor), and all goodwill associated therewith, now existing or hereafter adopted or acquired, together with any and all (i) rights and privileges arising under applicable law with respect to such Grantor's use of any copyrights, (ii) reissues, continuations, extensions and renewals thereof and amendments thereto, (iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof, including any thereof referred to in Schedule 8.
"Excluded Property" shall mean (i) Excluded Deposit Accounts so long as such Deposit Accounts are used solely for the purposes set forth on Schedule 5.11 of the Credit Agreement and do not at any time receive or contain any proceeds of any Collateral, (ii) voting Equity Interests of any Foreign Subsidiary, solely to the extent that (A) such Equity Interests represent more than 65% of the outstanding voting Equity Interests of such Foreign Subsidiary, and (B) pledging more than 65% of the total outstanding voting Equity Interests of such Foreign Subsidiary would result in material adverse tax consequences to the Grantors or any other Loan Parties, (iii) any rights or interest in any contract, lease, permit, license, or license agreement covering real or personal property of any Grantor if under the terms of such contract, lease, permit, license, or license agreement, or applicable law with respect thereto, the grant of a security interest or lien therein is prohibited as a matter of law or under the terms of such contract, lease, permit, license, or license agreement and such prohibition or restriction has not been waived or the consent of the other party to such contract, lease, permit, license, or license agreement has not been obtained (provided, that, (A) the foregoing exclusions of this clause (iii) shall in no way be construed (1) to apply to the extent that any described prohibition or restriction is ineffective under Section 9-406, 9-407, 9-408, or 9-409 of the UCC or other applicable law, or (2) to apply to the extent that any consent or waiver has been obtained that would permit Lender’s security interest or lien to attach notwithstanding the prohibition or restriction on the pledge of such contract, lease, permit, license, or license agreement and (B) the foregoing exclusions of this clause (iii) shall in no way be construed to limit, impair, or otherwise affect any of the Lender’s continuing security interests in and liens upon any rights or interests of any Grantor in or to (1) monies due or to become due under or in connection with any described contract, lease, permit, license, license agreement, or Equity Interests (including any Accounts), or (2) any proceeds from the sale, license, lease, or other dispositions of any such contract, lease, permit, license, license agreement, or Equity Interests), (iv) any United States intent-to-use trademark applications to the extent that, and solely during the period in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark applications under applicable federal law, provided that upon submission and acceptance by the United States Patent and Trademark Office of an amendment to allege use pursuant to 15 U.S.C. Section 1060(a) (or any successor provision), such intent-to-use trademark application shall be considered Collateral, (v) any assets identified in writing by Lender (which writing shall expressly reference this Guaranty and Security Agreement and this definition) where the Lender determines in its sole discretion that the costs of obtaining or perfecting a security interest in such assets is excessive in relation to the value of the security afforded thereby, (vi) any interest in any Real Estate or Fixtures held by any Grantor; (vii) any shares of the capital stock of any Grantor held as treasury stock; and (viii) motor vehicles so long as and to the extent that such motor vehicles are subject to purchase money financing or finance lease obligations as a result of which the related creditor has an encumbrance noted on the certificate of title; provided that "Excluded Property" shall not include any proceeds, products, substitutions or replacements of Excluded Property
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(unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property).
"Guaranteed Obligations" shall have the meaning set forth in Section 2.1(a).
"Guarantors" shall mean, collectively, (i) each Grantor other than the Borrowers (including PubCo and Parent) and (ii) each other guarantor of the obligations of Borrowers to Lender from time to time.
"Monetary Obligation" shall mean a monetary obligation secured by Goods or owed under a lease of Goods and includes a monetary obligation with respect to software used in Goods.
"Note" shall mean (i) an instrument that evidences a promise to pay a Monetary Obligation and (ii) any other instrument within the description of "promissory note" as defined in Article 9 of the UCC.
"Parent" shall have the meaning set forth in the preamble to this Agreement.
"Patent Licenses" shall mean any and all present and future agreements providing for the granting of any right in or to Patents (whether the applicable Grantor is licensee or licensor thereunder), including any thereof referred to in Schedule 6.
"Patents" shall mean, collectively, with respect to each Grantor, all letters patent issued or assigned to, and all patent applications and registrations made by, such Grantor (whether established or registered or recorded in the United States, any State thereof or any other country or any political subdivision thereof and, in each case, whether owned by or licensed to such Grantor), and all goodwill associated therewith, now existing or hereafter adopted or acquired, together with any and all (i) rights and privileges arising under applicable law with respect to such Grantor's use of any patents, (ii) inventions and improvements described and claimed therein, (iii) reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof and amendments thereto, and rights to obtain any of the foregoing, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, present or future infringements thereof, including any thereof referred to in Schedule 6.
"PubCo" shall have the meaning set forth in the preamble to this Agreement.
"Qualified ECP Guarantor" means, in respect of any Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time such Swap Obligation is incurred or such other person as constitutes an ECP under the Commodity Exchange Act or any regulations promulgated thereunder.
"Secured Obligations" shall have the meaning set forth in Section 3.1.
"Secured Parties" shall mean Lender and Affiliates of Lender that provide Bank Product Obligations or Hedging Obligations to any Loan Party.
"Securities Act" shall mean the Securities Act of 1933, as amended and in effect from time to time.
"Trademark Licenses" shall mean any and all present and future agreements providing for the granting of any right in or to Trademarks (whether the applicable Grantor is licensee or licensor thereunder), including any thereof referred to in Schedule 7.
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EXHIBIT 10.2
"Trademarks" shall mean, collectively, with respect to each Grantor, all trademarks, service marks, slogans, logos, certification marks, trade dress, uniform resource locations (URL's), domain names, corporate names, trade names and other source or business identifiers, whether registered or unregistered, owned by or assigned to such Grantor and all registrations and applications for the foregoing (whether by statutory or common law, whether established or registered in the United States, any State thereof, or any other country or any political subdivision thereof and, in each case, whether owned by or licensed to such Grantor), and all goodwill associated therewith, now existing or hereafter adopted or acquired, together with any and all (i) rights and privileges arising under applicable law with respect to such Grantor's use of any trademarks, (ii) reissues, continuations, extensions and renewals thereof and amendments thereto, (iii) income, fees, royalties, damages and payments now and hereafter due and/or payable thereunder and with respect thereto, including damages, claims and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof, including any thereof referred to in Schedule 7.
"UCC" shall mean the Uniform Commercial Code as in effect from time to time in the State of Georgia.
"Vehicles" shall mean all vehicles covered by a certificate of title law of any state and, in any event, shall include the vehicles listed on Schedule 9 and all tires and other appurtenances to any of the foregoing.
GUARANTEE
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EXHIBIT 10.2
on the Loans, when and as due, whether at maturity, by acceleration, upon one or more dates set for prepayment or otherwise, (B) each payment required to be made by the Borrowers under the Credit Agreement in respect of any Letter of Credit, when and as due, including payments in respect of reimbursement or disbursements, interest thereon and obligations to provide cash collateral, and (C) all other monetary obligations, including fees, costs, expenses and indemnities, whether primary, secondary, direct, contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), of the Loan Parties to Lender and any of Lender's Related Parties under the Credit Agreement and the other Loan Documents; (ii) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Loan Parties under or pursuant to the Credit Agreement and the other Loan Documents; (iii) the due and punctual payment of all Bank Product Obligations of any other Loan Party; and (iv) the due and punctual payment and performance of all Hedging Obligations owed by any other Loan Party to Lender or its Affiliates (all the monetary and other obligations referred to in the preceding clauses (i) through (iv) being collectively called the "Guaranteed Obligations"); provided, however, that in no event shall "Guaranteed Obligations" of any Guarantor include any Excluded Swap Obligation of such Guarantor. Each Guarantor further agrees that the Guaranteed Obligations may be extended or renewed, in whole or in part, without notice to or further assent from such Guarantor, and that such Guarantor will remain bound upon its guarantee notwithstanding any extension or renewal of any Guaranteed Obligations.
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avoidable or unenforceable against such Guarantor under such law, statute or regulation, including any state fraudulent transfer or fraudulent conveyance act or statute applied in any such case or proceeding.
The substantive laws under which the possible avoidance or unenforceability of the Guaranteed Obligations (or any other obligations of such Guarantor to Lender or the Secured Parties) as may be determined in any case or proceeding shall hereinafter be referred to as the "Avoidance Provisions." To the extent set forth in clauses (i), (ii) and (iii) of this subsection, but only to the extent that the Guaranteed Obligations would otherwise be subject to avoidance or found unenforceable under the Avoidance Provisions, if any Guarantor is not deemed to have received valuable consideration, fair value or reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital to conduct its business, or cause such Guarantor to have incurred debts (or to have intended to have incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time any of the Guaranteed Obligations are deemed to have been incurred under the Avoidance Provisions and after giving effect to the contribution by such Guarantor, the maximum Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Guaranteed Obligations (or any other obligations of such Guarantor to Lender or the Secured Parties), as so reduced, to be subject to avoidance or unenforceability under the Avoidance Provisions.
This subsection is intended solely to preserve the rights of Lender and the Secured Parties hereunder to the maximum extent that would not cause the Guaranteed Obligations of such Guarantor to be subject to avoidance or unenforceability under the Avoidance Provisions, and neither the Grantors nor any other Person shall have any right or claim under this subsection as against Lender or any Secured Party that would not otherwise be available to such Person under the Avoidance Provisions.
GRANT OF SECURITY INTEREST
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provided, that, (i) notwithstanding the foregoing, in no event shall "Secured Obligations" include any Excluded Swap Obligations of any Guarantor, (ii) notwithstanding the foregoing, no Lien or security interest is hereby granted on any Excluded Property, and, to the extent that any Collateral later becomes Excluded Property, the Lien granted hereunder will automatically be deemed to have been released and (iii) if and when any property shall cease to be Excluded Property, a Lien on and security interest in such property shall automatically be deemed granted therein.
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For the avoidance of doubt, the parties hereto acknowledge that each of PubCo and Parent is an unsecured Guarantor hereunder and no covenant, representation, or other provision in this Agreement or any other Loan Document relating to the Collateral that is applicable to a Grantor shall be binding on PubCo or Parent unless and to the extent that such provision specifically references PubCo or Parent as being bound thereby.
ACKNOWLEDGMENTS, WAIVERS AND CONSENTS
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released by, or any indulgence or forbearance in respect thereof granted by, Lender or any other Secured Party; (C) the Credit Agreement, the other Loan Documents and all other documents executed and delivered in connection therewith or in connection with Hedging Obligations and Bank Product Obligations included as Obligations may be amended, modified, supplemented or terminated, in whole or in part, as Lender (or the Required Lenders, all Lenders, or the other parties thereto, as the case may be) may deem advisable from time to time; (D) any Borrower, any Guarantor or any other Person may from time to time accept or enter into new or additional agreements, security documents, guarantees or other instruments in addition to, in exchange for or relative to any Loan Document, all or any part of the Secured Obligations or any collateral now or in the future serving as security for the Secured Obligations; (E) any collateral security, guarantee or right of offset at any time held by Lender or any other Secured Party for the payment of the Secured Obligations may be sold, exchanged, waived, surrendered or released; and (F) any other event shall occur which constitutes a defense or release of sureties generally; and
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provision of collateral security provided herein, or the creation, renewal, extension, modification or accrual of any Secured Obligations, or notice of or proof of reliance by Lender or any other Secured Party upon the guarantee contained in Article II or upon the collateral security provided herein, or of default in the payment or performance of any of the Secured Obligations owed to Lender or any other Secured Party and enforcement of any right or remedy with respect thereto, or notice of any other matters relating thereto; the Secured Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantee contained in Article II and the collateral security provided herein and no notice of creation of the Secured Obligations or any extension of credit already or hereafter contracted by or extended to any Borrower need be given to any Grantor, and all dealings between any Borrower or Borrowers and any of the Grantors, on the one hand, and Lender and the other Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantee contained in Article II and on the collateral security provided herein; (ii) diligence and demand of payment, presentment, protest, dishonor and notice of dishonor; (iii) any statute of limitations affecting any Grantor's liability hereunder or the enforcement thereof; (iv) all rights of revocation with respect to the Secured Obligations, the guarantee contained in Article II and the provision of collateral security herein; and (v) all principles or provisions of law which conflict with the terms of this Agreement and which can, as a matter of law, be waived.
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Lender, for the benefit of the Secured Parties, may use, sell or dispose of any item of collateral or security as it sees fit without regard to any subrogation rights any Grantor may have, and upon any disposition or sale, any rights of subrogation any Grantor may have shall terminate.
REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into the Credit Agreement and the other Loan Documents and to induce Lender and its Affiliates to enter into Hedging Obligations and Bank Product Obligations with the Grantors, each Grantor represents and warrants to Lender and each other Secured Party as follows:
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COVENANTS
Each Grantor (other than PubCo and Parent for purposes of this Section 6, except with respect to any specific reference to Guarantors or PubCo or Parent (or both of them) hereinbelow) covenants and agrees with Lender and the other Secured Parties that, from and after the date of this Agreement until the Secured Obligations shall have been paid in full, no Letter of Credit shall be outstanding and all Commitments shall have been terminated:
(b) Guarantors and each other Grantor shall cause each future shareholder, owner, or equity holding company that at any time, directly or indirectly, holds or owns any Equity Interests of Guarantors (other than PubCo for so long as it is a public company) or any other Grantor, within thirty (30) days after such Person becomes the holder or owner of such Equity Interests, to guarantee the Obligations of Borrowers in favor of Lender to the same extent that Guarantors has provided an unsecured guarantee of the Obligations and other Guaranteed Obligations hereunder promptly upon any such Person becoming the holder or owner of such Equity Interests and shall deliver to Lender such guaranty agreements, joinders, certificates, and other agreements and legal and business diligence as may be reasonably required by Lender in connection therewith.
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Collateral constituting Deposit Accounts, Electronic Chattel Paper, Investment Property, or Letter-of-Credit Rights, including executing and delivering any agreements, in form and substance satisfactory to Lender, with securities intermediaries, issuers or other Persons in order to establish "control", and each Grantor shall promptly notify Lender and the other Secured Parties of such Grantor's acquisition of any such Collateral, and (B) be a "protected purchaser" (as defined in Section 8-303 of the UCC); (ii) with respect to Collateral in excess of $50,000, other than certificated securities and Goods covered by a document in the possession of a Person other than such Grantor or Lender, such Grantor shall obtain written acknowledgment that such Person holds possession for Lender's benefit; and (iii) with respect to any Collateral constituting Goods that are in the possession of a bailee, such Grantor shall provide prompt notice to Lender and the other Secured Parties of any such Collateral then in the possession of such bailee, and such Grantor shall take or cause to be taken all actions (other than any actions required to be taken by Lender or any other Secured Party) necessary or requested by Lender to cause Lender to have a perfected security interest in such Collateral under applicable law.
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Agreement and (y) Lender shall have provided its prior written consent to such change(s), which consent may be withheld or conditioned upon such Grantor's having taken all action reasonably requested by Lender or any other Secured Party for the purpose of maintaining the perfection and priority of Lender's security interests under this Agreement. In any notice furnished pursuant to this Section, such Grantor will expressly state in a conspicuous manner that the notice is required by this Agreement and contains facts that may require additional filings of financing statements or other notices for the purposes of continuing perfection of Lender's security interest in the Collateral. Upon any change of its name or jurisdiction of organization, each of PubCo and Parent will notify Lender thereof and will promptly thereafter reaffirm its obligations hereunder and under any other Loan Document to which it is a party in a manner reasonably acceptable to Lender.
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each such Instrument or Tangible Chattel Paper, shall be delivered to Lender as soon as practicable, duly endorsed in a manner satisfactory to Lender to be held as Collateral pursuant to this Agreement.
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Copyrights, Patents and Trademarks which is material to the Grantors, including filing of applications for renewal, affidavits of use and affidavits of incontestability.
REMEDIAL PROVISIONS
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applicable Accounts, Chattel Paper and Payment Intangibles have been assigned to Lender for the ratable benefit of the Secured Parties and that payments in respect thereof shall be made directly to Lender. Lender may at any time in its own name or in the name of others communicate with the applicable Account Debtors to verify with them to its satisfaction the existence, amount and terms of any applicable Accounts, Chattel Paper or Payment Intangibles.
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free from any claim of right by any Grantor, including any equity or right of redemption, stay or appraisal which such Grantor has or may have under any rule of law, regulation or statute now existing or hereafter adopted. Upon any such sale or transfer, Lender shall have the right to deliver, assign and transfer to the purchaser or transferee thereof the Collateral so sold or transferred. Lender shall apply the net proceeds of any action taken by it pursuant to this Section, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any of the Collateral or in any way relating to the Collateral or the rights of Lender and the other Secured Parties hereunder, including reasonable attorneys' fees and disbursements, to the payment in whole or in part of the Obligations, in accordance with Section 8.2 of the Credit Agreement, and only after such application and after the payment by Lender of any other amount required by any provision of law, including Section 9-615 of the UCC, need Lender account for the surplus, if any, to any Grantor. To the extent permitted by applicable law, each Grantor waives all claims, damages and demands it may acquire against Lender or any other Secured Party arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least ten (10) days before such sale or other disposition.
LENDER
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Anything in this subsection to the contrary notwithstanding, Lender agrees that it will not exercise any rights under the power of attorney provided for in this subsection unless and until an Event of Default shall have occurred and be continuing. Lender shall give the relevant Grantor notice of any action taken pursuant to this subsection when reasonably practicable; provided that Lender shall have no liability for the failure to provide any such notice.
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EXHIBIT 10.2
Lender to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to Lender on demand.
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EXHIBIT 10.2
Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them, but, as between Lender and the Grantors, Lender shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor shall be under any obligation, or entitlement, to make any inquiry respecting such authority.
SUBORDINATION OF INDEBTEDNESS
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EXHIBIT 10.2
in effect, shall (a) exercise or enforce any creditor's right it may have against any debtor in respect of the Guarantor Claims, or (b) foreclose, repossess, sequester or otherwise take steps or institute any action or proceeding (judicial or otherwise, including the commencement of or joinder in any liquidation, bankruptcy, rearrangement, debtor's relief or insolvency proceeding) to enforce any Lien held by it.
MISCELLANEOUS
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EXHIBIT 10.2
or the execution, delivery, enforcement, performance or administration of this Agreement, to the extent the Borrowers would be required to do so pursuant to Section 9.3 of the Credit Agreement.
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EXHIBIT 10.2
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EXHIBIT 10.2
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EXHIBIT 10.2
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EXHIBIT 10.2
shall only be liable under this Section 10.19 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 10.19, or otherwise under this Guaranty, as it relates to such other Loan Party, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall remain in full force and effect until this Agreement has been terminated pursuant to Section 10.16(a). Each Qualified ECP Guarantor intends that this Section 10.19 constitute, and this Section 10.19 shall be deemed to constitute, a "keepwell, support, or other agreement" for the benefit of each other Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.
[Remainder of page intentionally left blank;
Signatures on following pages.]
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EXHIBIT 10.2
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty and Security Agreement to be duly executed under seal by their respective authorized officers as of the day and year first above written.
| BORROWERS:
|
| DANIMER SCIENTIFIC HOLDINGS, LLC,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[SEAL]
|
| MEREDIAN, INC., a Georgia corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
|
| MEREDIAN BIOPLASTICS, INC.,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
|
| DANIMER SCIENTIFIC, L.L.C.,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[SEAL] |
[Signatures continued on following pages.]
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EXHIBIT 10.2
| DANIMER BIOPLASTICS, INC., a Georgia corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
|
| DANIMER SCIENTIFIC KENTUCKY, INC., a Delaware corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL] |
|
|
|
|
| GUARANTORS:
Danimer Scientific, Inc.,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL] |
|
MEREDIAN HOLDINGS GROUP, INC., a Delaware corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
|
[Signatures continued on following page.]
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EXHIBIT 10.2
Acknowledged and Agreed to as of the date hereof:
LENDER:
TRUIST BANK
By: /s/ Mark A. Bohntinsky
Name: Mark Bohntinsky
Title: Managing Director
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