Exhibit 10.1
AMENDMENT NO. FIVE TO LOAN AND SECURITY AGREEMENT AND CONSENT
This Amendment No. Five to Loan and Security Agreement and Consent (this “Agreement”), dated as of March 16, 2023 (the “Amendment No. Five Effective Date”), is entered into among Danimer Scientific Holdings, LLC, a Delaware limited liability company (“Danimer Holdings”), Meredian Bioplastics, Inc., a Georgia corporation (“Meredian Bioplastics”; and together with Danimer Holdings, each a “Borrower” and collectively the “Borrowers”), Meredian, Inc., a Georgia corporation (“Meredian”), Danimer Scientific, L.L.C., a Georgia limited liability company “Danimer Scientific”), Danimer Bioplastics, Inc., a Georgia corporation (“Danimer Bioplastics”), Danimer Scientific Kentucky, Inc., a Delaware corporation (“Danimer Kentucky”), and Novomer, Inc., a Delaware corporation (“Novomer”; together with Meredian, Danimer Scientific, Danimer Bioplastics, Danimer Kentucky and with any other Person that at any time after the date hereof becomes a Guarantor, each a “Guarantor” and collectively, the “Guarantors”, and together with the Borrowers, the “Loan Parties”), the Lenders party thereto, and Southeast Community Development Fund X, L.L.C., a Delaware limited liability company, as Administrative Agent (“Administrative Agent”).
RECITALS:
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions contained herein, and for good and valuable consideration, the receipt and sufficiency of which are hereby specifically acknowledged, the parties hereby covenant and agree as follows:
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(iii) Administrative Agent and Lenders are and shall be entitled to the rights, remedies and benefits provided for in the Loan Documents and pursuant to applicable law, but subject to the terms and conditions of this Agreement.
(i) a modification or alteration of the terms, conditions or covenants of the Loan Agreement or any other Loan Document, or (ii) a waiver, release or limitation upon the exercise by Administrative Agent or any Lender of any of its rights, legal or equitable, thereunder.
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“Benchmark Replacement” shall mean the sum of: (a) such alternate benchmark rate that has been selected by the Administrative Agent at the direction of the Required Lenders as the replacement for SOFR or such other then-current benchmark, giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current benchmark for U.S. dollar-denominated syndicated or bilateral credit facilities at such time and (b) the Benchmark Replacement Adjustment; provided, that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero.
“Benchmark Replacement Adjustment” means, with respect to any replacement of SOFR with an alternate benchmark rate determined under clause (a) of the definition of “Benchmark Replacement”, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent at the direction of the Required Lenders, giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of SOFR with such alternate benchmark rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of SOFR with such alternate benchmark rate for U.S. dollar-denominated syndicated or bilateral credit facilities at such time.
“Default Rate” means an interest rate equal to the sum of: (a) the Average SOFR Rate plus the Applicable Margin (or any Benchmark Replacement that may be in effect); plus (b) two percent (2%), calculated on a per annum basis.
“Maturity Date” means, subject to the provisions hereof, June 24, 2024.
“Account Escrow Agreement” means any escrow agreement for the Pledged Account, executed by Truist Bank as the escrow agent (together with any successor escrow agent, the “Escrow Agent”), Borrowers as the company, and the Administrative Agent as the secured party, in substantially the form provided by such Escrow Agent and satisfactory to the Administrative Agent in its reasonable discretion.
“Average SOFR Rate” means, as of the first day of each calendar month, the rate per annum determined by Lender as the compounded average of SOFR over a rolling calendar day period of thirty (30) days (“30-Day SOFR Average”) on such date as such rate is published on the SOFR Administrator’s Website. Notwithstanding the foregoing, in no event shall the Average SOFR Rate be deemed to be less than zero. Administrative Agent’s internal records regarding applicable interest rates shall be determinative in the
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absence of manifest error.
“Pledged Account” has the meaning given to such term in Section 3.06. “SOFR” with respect to any day means the secured overnight financing rate
published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator), on the SOFR Administrator’s Website.
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor thereto.
Section 3.06 CASH COLLATERAL.
On March 16, 2023, Borrowers shall have established at Truist Bank, and shall fund and maintain at all times from and after such date, the following escrow account which shall be funded in the following amount: an escrow account styled “Danimer Scientific Holdings GARJA Loan Account”, which account shall hold a cash deposit made by Danimer Scientific Holdings, LLC in the outstanding principal balance of
$5,612,549.70 (the “Pledged Account”). Borrowers hereby grant to the Administrative Agent for the benefit of the Lenders a continuing first priority security interest in the Pledged Account and all amounts credited thereto to secure the GARJA Loan and any and all other Obligations owing from time to time by the Loan Parties under any Loan Document. The Pledged Account shall at all times be subject to an Account Escrow Agreement. Upon the occurrence and during the continuation of any Event of Default, the Administrative Agent may exercise its rights under the Account Escrow Agreement, including without limitation, applying the deposits credited to the Pledged Account to the Obligations as provided in this Section 3.06. The Pledged Account shall constitute Collateral and the Account Escrow Agreement shall constitute a Loan Document, and the Administrative Agent shall, without limitation, have all of the rights and remedies with respect to the Pledged Account that it has with regard to any other Collateral. No other Person shall at any time have a Lien in the Pledged Account, other than the Administrative Agent. Borrowers shall pay when due all of the Escrow Agent’s fees and expenses from time to time, including those on Exhibit C to the Account Escrow
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Agreement. Any indemnity obligation or liability incurred by the Administrative Agent or any Lender under the Escrow Agreement will be included in the Obligations.
(d) Notwithstanding anything to the contrary contained herein or in any other Loan Document, for so long as the Pledged Account is maintained, the Loan Parties and their Subsidiaries shall not be required to comply with the specific financial covenants contained in subsections (a), (b) and (c) of this Section 6.13.
[Reserved.]
5.05 titled Certain Litigation, delivered herewith and attached hereto as Exhibit A, all representations and warranties of each Loan Party contained in the Loan Agreement and in each other Loan Document are true and correct in all material respects (except to the extent such representations and warranties expressly refer to an earlier or specified date, in which case they are true and correct in all material respects as of such earlier or specified date).
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expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative Agent.
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communications with respect hereto. This Agreement may not be amended except in accordance with the provisions of the Loan Agreement.
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Amendment No. Five to LSA (Danimer/SECDF X/PIFS)
In Witness Whereof, the parties hereto have duly executed and delivered this Agreement as of the date first written above.
BORROWERS:
DANIMER SCIENTIFIC HOLDINGS, LLC MEREDIAN BIOPLASTICS, INC.
By: /s/ Michael A. Hajost By: /s/ Michael A. Hajost
Name: Michael A. Hajost Name: Michael A. Hajost
Title: Vice President and Treasurer Title: Vice President and Treasurer
GUARANTORS:
MEREDIAN, INC. DANIMER SCIENTIFIC, L.L.C.
By: /s/ Michael A. Hajost By: /s/ Michael A. Hajost
Name: Michael A. Hajost Name: Michael A. Hajost
Title: Vice President and Treasurer Title: Vice President and Treasurer
DANIMER BIOPLASTICS, INC. DANIMER SCIENTIFIC KENTUCKY, INC.
By: /s/ Michael A. Hajost By: /s/ Michael A. Hajost
Name: Michael A. Hajost Name: Michael A. Hajost
Title: Vice President and Treasurer Title: Vice President and Treasurer
NOVOMER, INC.
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Vice President and Treasurer
[Signatures continue on following page]
Amendment No. Five to LSA (Danimer/SECDF X/PIFS)
Administrative Agent:
SOUTHEAST COMMUNITY DEVELOPMENT FUND X, L.L.C.,
a Delaware limited liability company
By: Advantage Capital Community Development Fund, L.L.C., its Managing Member
By: /s/ Gabriel Rosen
Name: Gabriel Rosen
Title: Authorized Person
LenderS:
Southeast Community Development Fund X, L.L.C.,
a Delaware limited liability company
By: Advantage Capital Community Development Fund, L.L.C., its Managing Member
By: /s/ Gabriel Rosen
Name: Gabriel Rosen
Title: Authorized Person
Amendment No. Five to LSA (Danimer/SECDF X/PIFS)
RATIFICATION BY GUARANTOR
The undersigned, Meredian Holdings Group, Inc., a Delaware corporation (“Parent”), hereby states as follows to and for the benefit of Administrative Agent and each Lender, in each case as of the date hereof:
Capitalized terms used herein and not defined herein shall have the meaning given to such terms in the Loan Agreement (as defined in the foregoing Amendment No. Five to Loan and Security Agreement).
Dated: March 16, 2023
[Signature on following page]
PARENT:
MEREDIAN HOLDINGS GROUP, INC.
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Vice President and Treasurer
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