Execution Version
Exhibit 10.2
$130,000,000
FINANCING AGREEMENT
dated as of March 17, 2023
among
DANIMER SCIENTIFIC, INC.
as Borrower,
THE PERSONS FROM TIME TO TIME PARTY HERETO,
as Guarantors,
VARIOUS LENDERS FROM TIME TO TIME PARTY HERETO
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INTERPRETATION 1
Section 1.1. Definitions 1
Section 1.2. Accounting and Other Terms 49
Section 1.3. Interpretation, etc 50
Section 1.4. Time References 51
ARTICLE II LOANS 51
Section 2.1. Term Loans 51
Section 2.2. Protective Advances 52
Section 2.3. Pro Rata Shares; Availability of Funds 53
Section 2.4. Use of Proceeds 54
Section 2.5. Evidence of Debt; Register; Lenders’ Books and Records; Notes 54
Section 2.6. Interest 55
Section 2.7. Default Interest 55
Section 2.8. Payments Prior to Maturity 55
Section 2.9. Mandatory Prepayments 57
Section 2.10. Application of Prepayments 59
Section 2.11. General Provisions Regarding Payments 59
Section 2.12. Ratable Sharing 62
Section 2.13. Increased Costs; Capital Adequacy 62
Section 2.14. Taxes; Withholding, etc 64
Section 2.15. Obligation to Mitigate 67
Section 2.16. Collateral Accounts 68
ARTICLE III CONDITIONS PRECEDENT 72
Section 3.1. Conditions to Credit Extension on the Closing Date 72
ARTICLE IV REPRESENTATIONS AND WARRANTIES 77
Section 4.1. Organization; Requisite Power and Authority; Qualification 77
Section 4.2. Capital Stock and Ownership 77
Section 4.3. Due Authorization 77
Section 4.4. No Conflict 77
Section 4.5. Governmental Consents 78
Section 4.6. Binding Obligation 78
Section 4.7. Historical Financial Statements 78
Section 4.8. No Material Adverse Effect 78
Section 4.9. Adverse Proceedings, etc 78
Section 4.10. Payment of Taxes 79
Section 4.11. Properties 79
Section 4.12. Environmental Matters 80
Section 4.13. No Defaults 80
Section 4.14. Material Contracts 81
Section 4.15. Investment Company Act 81
Section 4.16. Margin Stock 81
Section 4.17. Employee Matters 81
Section 4.18. Employee Benefit Plans 81
Section 4.19. Certain Fees 82
Section 4.20. Compliance with Organizational Documents and Statutes 82
Section 4.21. Intellectual Property 82
Section 4.22. Equipment 82
Section 4.23. Customers and Suppliers 82
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Section 4.24. Insurance 83
Section 4.25. Common Enterprise 83
Section 4.26. Permits, Etc 83
Section 4.27. Bank Accounts and Securities Accounts 83
Section 4.28. Security Interests 83
Section 4.29. Anti-Terrorism Laws, Anti-Corruption Laws and Sanctions 84
Section 4.30. Disclosure 84
Section 4.31. Indebtedness 85
Section 4.32. Use of Proceeds 85
Section 4.33. Solvency 85
ARTICLE V AFFIRMATIVE COVENANTS 85
Section 5.1. Financial Statements and Other Reports 86
Section 5.2. Existence 93
Section 5.3. Payment of Taxes and Claims 93
Section 5.4. Maintenance of Properties 93
Section 5.5. Insurance 94
Section 5.6. Inspections; Books and Records 94
Section 5.7. Private Lenders Meetings and Conference Calls 95
Section 5.8. Compliance with Laws 95
Section 5.9. Environmental 96
Section 5.10. Subsidiaries 96
Section 5.11. Material Real Estate Assets 97
Section 5.12. Location of Equipment 97
Section 5.13. Further Assurances 98
Section 5.14. Miscellaneous Business Covenants 98
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Section 5.15. Post-Closing Matters 101
Section 5.16. AON Insurance Policy 101
Section 5.17. [Intentionally omitted] 101
Section 5.18. Changes to Capital Structure 101
Section 5.19. Convertible Notes 101
Section 5.20. Trade Secrets Lockbox Deposit 102
Section 5.21. Existing GARJA Loan Payoff 102
ARTICLE VI NEGATIVE COVENANTS 102
Section 6.1. Indebtedness 103
Section 6.2. Liens 103
Section 6.3. Equitable Lien 103
Section 6.4. No Further Negative Pledges 103
Section 6.5. Restricted Junior Payments 103
Section 6.6. Restrictions on Subsidiary Distributions 105
Section 6.7. Investments 106
Section 6.8. Interest Reserve Account 106
Section 6.9. Fundamental Changes; Disposition of Assets; Acquisitions 106
Section 6.10. Disposal of Subsidiary Interests 108
Section 6.11. Sales and Lease Backs 109
Section 6.12. Transactions with Affiliates 109
Section 6.13. Conduct of Business 110
Section 6.14. Changes to Certain Agreements and Organizational Documents 112
Section 6.15. Accounting Methods 112
Section 6.16. Deposit Accounts and Securities Accounts 112
Section 6.17. Prepayments of Certain Indebtedness; Timely Payment in the Ordinary Course of Business 113
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Section 6.18. Anti-Terrorism Laws, Anti-Corruption Laws, Sanctions 113
Section 6.19. Bankruptcy Remote 113
Section 6.20. Unrestricted Subsidiaries 114
Section 6.21. Existing Term Loan Deposit Accounts 115
ARTICLE VII GUARANTY 115
Section 7.1. Guaranty of the Obligations 115
Section 7.2. Contribution by Guarantors 115
Section 7.3. Payment by Guarantors 116
Section 7.4. Liability of Guarantors Absolute 116
Section 7.5. Waivers by Guarantors 118
Section 7.6. Guarantors’ Rights of Subrogation, Contribution, etc 118
Section 7.7. Subordination of Other Obligations 119
Section 7.8. Continuing Guaranty 119
Section 7.9. Authority of Guarantors or Borrower 119
Section 7.10. Financial Condition of Borrower 119
Section 7.11. Bankruptcy, etc 120
Section 7.12. Discharge of Guaranty upon Sale of Guarantor 120
Section 7.13. Limitation 121
ARTICLE VIII EVENTS OF DEFAULT 122
Section 8.1. Events of Default 122
ARTICLE IX AGENTS 126
Section 9.1. Appointment 126
Section 9.2. Nature of Duties; Delegation 127
Section 9.3. Successor Agent 130
Section 9.4. Nonreliance on Agents; Lender Consent 132
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Section 9.5. Collateral Matters 132
Section 9.6. Administrative Agent May File Proofs of Claim 134
Section 9.7. No Third-Party Beneficiaries 135
Section 9.8. Right to Indemnity 135
Section 9.9. Agency for Perfection 136
Section 9.10. Erroneous Payments 137
Section 9.11. Delivery of Notices to Securitization Trustee 139
ARTICLE X MISCELLANEOUS 140
Section 10.1. Notices 140
Section 10.2. Expenses 141
Section 10.3. Indemnity 142
Section 10.4. Set-Off 143
Section 10.5. Amendments and Waivers 143
Section 10.6. Successors and Assigns; Participations 146
Section 10.7. Independence of Covenants 150
Section 10.8. Survival of Representations, Warranties and Agreements 151
Section 10.9. No Waiver; Remedies Cumulative 151
Section 10.10. Marshalling; Payments Set Aside 151
Section 10.11. Severability 151
Section 10.12. Obligations Several 151
Section 10.13. Headings 152
Section 10.14. APPLICABLE LAW 152
Section 10.15. CONSENT TO JURISDICTION 152
Section 10.16. WAIVER OF JURY TRIAL 153
Section 10.17. Confidentiality 153
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Section 10.18. Usury Savings Clause 154
Section 10.19. Counterparts 155
Section 10.20. Effectiveness 155
Section 10.21. PATRIOT Act Notice 155
Section 10.22. Acknowledgement and Consent to Bail-In of EEA Financial Institutions 155
Section 10.23. AON Insurance Policy Refund 156
Section 10.24. Entire Agreement 156
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APPENDICES: |
| A | Term Loan Commitments |
|
|
|
|
SCHEDULES: |
| 1.1(a) | Existing Indebtedness |
|
| 1.1(b) | Permitted Restructuring Transactions |
|
| 4.1 | Jurisdictions of Organization and Qualification |
|
| 4.2 | Capital Stock and Ownership |
|
| 4.9 | Adverse Proceedings |
|
| 4.10 | Taxes |
|
| 4.11 | Real Estate Assets |
|
| 4.12 | Environmental Matters |
|
| 4.13 | Defaults |
|
| 4.14 | Material Contracts |
|
| 4.14A | Material Contract Estoppels |
|
| 4.21 | Intellectual Property |
|
| 4.22 | Equipment |
|
| 4.24 | Insurance |
|
| 4.27 | Bank Accounts and Securities Accounts |
|
| 5.15 | Certain Post-Closing Matters |
|
| 5.20 | Lockbox Deposit Categories |
|
| 6.1 | Certain Indebtedness |
|
| 6.1A | Conversion of Certain Indebtedness Into Equity |
|
| 6.2 | Certain Liens |
|
| 6.7 | Certain Investments |
|
| 6.9 | Certain Acquisitions |
|
| 6.11 | Sales and Lease Backs |
|
| 6.12 | Certain Affiliate Transactions |
|
| 6.19 | Co-Owned IP Rights |
|
| 10.1 | Notice Addresses |
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EXHIBITS: |
| A | Form of Funding Notice |
|
| B | Form of Compliance Certificate |
|
| C | Form of Assignment Agreement |
|
| D | Form of Certificate Regarding Non-Bank Status |
|
| E | Form of Closing Certificate |
|
| F | Form of Counterpart Agreement |
|
| G | Form of Pledge and Security Agreement |
|
| H | [Intentionally omitted] |
|
| I | Form of Note |
|
| J | Form of Solvency Certificate |
|
| K | Form of AON Insurance Policy |
|
| L | Form of Intercompany Subordination Agreement |
|
| M | Form of AON Valuation Questionnaire |
|
| N | [Intentionally omitted] |
|
| O | Form of Senior Lien Intercreditor Agreement |
|
| P | ABL Intercreditor Agreement Term Sheet |
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FINANCING AGREEMENT
This FINANCING AGREEMENT dated as of March 17, 2023, is entered into by and among DANIMER SCIENTIFIC, INC., a Delaware corporation (“Borrower”), as borrower, and certain Subsidiaries of Borrower from time to time party hereto (collectively, the “Guarantors” and each, a “Guarantor”), as guarantors, the Lenders from time to time party hereto, and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION and its permitted successors to serve as administrative agent and collateral agent under the Loan Documents (in such capacities, the “Administrative Agent” and the “Collateral Agent”, as applicable, and from time to time referred to herein without differentiation as an “Agent” and, collectively as the “Agents”).
W I T N E S S E T H:
WHEREAS, capitalized terms used in the preamble or these recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, Lenders have agreed to extend a credit facility to Borrower consisting of term loans in the aggregate principal amount of $130,000,000, the proceeds of which will be used as described in Section 2.4 and which will be disbursed in one draw on the Closing Date;
WHEREAS, Borrower has agreed to secure all of its Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on the Collateral owned by Borrower; and
WHEREAS, Guarantors have agreed to guarantee the obligations of Borrower hereunder and to secure their respective Obligations by granting to Collateral Agent, for the benefit of Secured Parties, a Lien on the Collateral owned by Guarantors.
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
DEFINITIONS AND INTERPRETATION
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“Existing GARJA Loan” means that portion of the Existing Term Loan having an initial principal loan amount of $5,499,980.00 and for which Danimer Scientific Holdings, LLC is the borrower and Southeast Community Development Fund X, L.L.C. is the lender.
“Existing GARJA Loan Payoff Date” shall have the meaning set forth in Section 5.21.
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“Narrative Report Notice” has the meaning specified in Section 5.7(b).
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“Threshold Amount” means $2,000,000.
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“Unrestricted Subsidiary” means (i) each of Meredian Bioplastics, Inc., Firtill Investments sp. z. o.o., and as of the ninety-first (91st) day following receipt of the DSKY NMTC Consents, Novomer, Inc., (ii) any newly created Subsidiary that is wholly owned by an Unrestricted Subsidiary and (iii) any newly created Subsidiary of a Loan Party into which an Unrestricted Subsidiary transfers all or a portion of its assets, and which such newly created Subsidiary (a) engages in a line of business in which the transferring Unrestricted Subsidiary is engaged in or is reasonably related to or an extension thereof and (b) immediately prior to such transfer and at the time thereof, does not own any assets (other than de minimis assets necessary for the formation of such Subsidiary) or owe any liabilities.
“Warrant” means that certain Warrant to Purchase Common Stock, dated March 17, 2023, made by Borrower and Jefferies Funding LLC.
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LOANS
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first, ratably to pay the Obligations in respect of any fees (other than any Specified Premium), expense reimbursements, indemnities and other amounts then due and payable (including, without limitation, the fees, charges and disbursements of counsel) to the Agents until paid in full;
second, ratably to pay interest then due and payable in respect of Protective Advances until paid in full;
third, ratably to pay principal of Protective Advances then due and payable until paid in full;
fourth, ratably to pay the Obligations in respect of any fees (other than any Specified Premium) and indemnities then due and payable to the Lenders until paid in full;
fifth, interest then due and payable in respect of the Term Loan until paid in full, provided that the proceeds of the Interest Reserve Account shall be applied only to Term Loan interest;
sixth, ratably to pay principal of the Term Loan until paid in full in Cash in Dollars;
seventh, ratably to pay the Obligations in respect of any Specified Premium then due and payable to the Lenders until paid in full in Cash in Dollars;
eighth, to the ratable payment of all other Obligations then due and payable until paid in full in Cash in Dollars; and
last, the balance, if any, after all of the Obligations (other than inchoate indemnity obligations) have been paid in full, to Borrower or as otherwise required by Law as directed by a court of competent jurisdiction.
For avoidance of doubt, the proceeds of the Interest Reserve Account in all events shall be applied only to timely payment Term Loan interest until the Term Loans have been repaid in full, and following such repayment in full of the Term Loans, and any remaining proceeds of the Interest Reserve Account shall be applied as set forth in this clause (g) above.
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A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.
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CONDITIONS PRECEDENT
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Any Agent or Required Lenders shall be entitled, but not obligated, to request and receive, prior to the making of any Credit Extension, additional information reasonably satisfactory to the requesting party confirming the satisfaction of any of the foregoing if, in the good faith judgment of such Agent or Required Lender, such request is warranted under the circumstances. Any Funding Notice shall be executed by an Authorized Officer of Borrower in a writing delivered to Administrative Agent and may be transmitted by email. Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly Authorized Officer or other person authorized on behalf of Borrower or for otherwise acting in good faith.
REPRESENTATIONS AND WARRANTIES
In order to induce Agents and Lenders to enter into this Agreement and to make the Credit Extension to be made thereby, each Loan Party represents and warrants to each Agent and Lender on the Closing Date, that the following statements are true and correct:
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AFFIRMATIVE COVENANTS
Each Loan Party covenants and agrees that so long as any Commitment is in effect and until payment in full of all Obligations, each Loan Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Article V.
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Documents required to be delivered pursuant to Section 5.1 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the earlier of the date (A) on which any Loan Party posts such documents, or provides a link thereto, on such Loan Party’s or one of its Affiliates’ website on the Internet or (B) on which such documents are posted on such Loan Party’s behalf on IntraLinks/IntraAgency or another website, if any, to which each
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Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that Borrower shall notify the Administrative Agent (by telecopier or electronic mail) of the filing of any such documents with the Securities and Exchange Commission on EDGAR and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents.
Each Loan Party hereby acknowledges that (a) the Administrative Agent shall make available to the Lenders materials and/or information provided by or on behalf of the Loan Parties hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on IntraLinks, DebtDomain, SyndTrak, ClearPar or another similar electronic system chosen by the Administrative Agent and the Required Lenders to be the electronic transmission system or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may not, or may have personnel who do not, wish to receive information regarding any material non-public information with respect to the Loan Parties or their Affiliates, or the respective securities of any of the foregoing (collectively, “MNPI”), and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Loan Parties hereby agree that they will identify that portion of Borrower Materials that may be distributed to the Public Lenders and that (i) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof, (ii) by marking Borrower Materials “PUBLIC,” the Loan Parties shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as only containing either publicly available information, or information concerning the Borrower, its Subsidiaries and Affiliates, or its or their respective securities that (in the good faith judgment of the Borrower) is not material information (although it may be sensitive and proprietary) with respect to the Borrower or any of its Subsidiaries or Affiliates or its or their respective securities for purposes of United States federal and state securities laws, (iii) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information” and (iv) the Administrative Agent and the Lenders shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.”
Although the Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent with the approval of the Required Lenders from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Platform is secured through a per-deal authorization method whereby each user may access the Platform only on a deal-by-deal basis, each of the Lenders and the Loan Parties acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that the Administrative Agent is not responsible for approving or vetting the representatives or contacts of any Lender that are added to the Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders and the Loan Parties hereby approves distribution of the Communications through the Platform and understands and assumes the risks of such distribution.
THE PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR
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ERRORS OR OMISSIONS IN THE PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM. IN NO EVENT SHALL THE ADMINISTRATIVE AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY LOAN PARTY, ANY LENDER OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE PLATFORM. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Loan Party pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent or any Lender by means of electronic communications pursuant to this Section 5.1, including through the Platform.
Each Lender agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Loan Documents. Each Lender agrees (i) to notify the Administrative Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
The Administrative Agent shall store the Communications on the Platform in accordance with the Administrative Agent’s generally applicable document retention procedures and policies.
Nothing herein shall prejudice the right of the Administrative Agent or any Lender to give any notice or other communication pursuant to any Loan Document in any other manner specified in such Loan Document.
Anything to the contrary notwithstanding, nothing in this Agreement (beyond performance required by Section 5.20) will require any Loan Party to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter, or provide information (i) that constitutes non-financial trade secrets or non-financial proprietary information, (ii) in respect of which disclosure is prohibited by Law or binding agreement or (iii) that is subject to attorney-client or similar privilege or constitutes attorney work product.
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NEGATIVE COVENANTS
Each Loan Party covenants and agrees that, so long as any Commitment is in effect and until payment in full of all Obligations, such Loan Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Article VI (provided, that any Subsidiary that has been acquired pursuant to a Permitted Acquisition shall have a period of sixty (60) days following the date of such Permitted Acquisition to perform or comply with, as applicable, the covenants in this Article VI).
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For the avoidance of doubt, if Borrower has any preferred equity outstanding, the Borrower shall not make any distributions on account of such preferred equity prior to the payment of all Obligations in full in Cash in Dollars.
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To the extent any Collateral is sold, transferred or otherwise disposed of as expressly permitted by this Agreement or in connection with a transaction approved by the Required Lenders, in each case to a Person other than a Loan Party, such Collateral shall, except as set forth in this Agreement, be sold, transferred or otherwise disposed of free and clear of the Liens created by the Collateral Documents, and so long as the Loan Parties shall have previously provided to the Collateral Agent and the Administrative Agent such certifications or documents as the Required Lenders, the Collateral Agent or the Administrative Agent shall reasonably request in order to demonstrate compliance with this Agreement and the other Loan Documents, including this Section 6.9, Collateral Agent shall take all actions appropriate or reasonably requested by Borrower in order to effect the foregoing at the sole cost and expense of Borrower and without recourse or warranty by Collateral Agent (including the execution and delivery of appropriate UCC termination statements and such other instruments and releases provided to it and requested by the Loan Parties as may be necessary and appropriate to effect such release). To the extent any such permitted sale, transfer or other disposition results in a Guarantor no longer constituting an Included Subsidiary of Borrower, the Obligations of such Guarantor and all obligations of such Guarantor under the Credit Documents shall terminate and be of no further force and effect, and each of Administrative Agent and Collateral Agent shall take such actions, at the sole expense of Borrower, as are requested by Borrower in connection with such termination.
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Borrower shall promptly (but in any event within ten (10) Business Days prior to the consummation thereof) disclose in writing each transaction (other than any transaction described in clause (a) through (g) above) by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) any Permitted Holder and (iii) Jefferies, any affiliate thereof or any successor owner of any Capital Stock previously held by Jefferies)) that becomes a holder of 10% or more of any class of Capital Stock of any Loan Party or any of its Included Subsidiaries or with any Affiliate of any Loan Party to Agents and Lenders; provided, that in the case of Borrower, such holder has filed with the Securities and Exchange Commission a Form 3, Form 4, Schedule 13D or Schedule 13G indicating its ownership of 10% or more of the Capital Stock of Borrower or for which holder Borrower has actual knowledge of such ownership.
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Borrower shall deliver to the Lenders any certification reasonably requested from time to time by any Lender in its sole discretion within a reasonable period of time following such request, confirming Borrower’s compliance with this Section 6.18 and will cooperate in good faith with reasonable requests for information made by Lenders in order to diligence such certifications within a reasonable period of time following such request.
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GUARANTY
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EVENTS OF DEFAULT
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THEN, (A) upon the occurrence of any Event of Default described in Section 8.1(f) or Section 8.1(g), automatically, (B) upon the occurrence of any Event of Default under Section 8.1(p) and
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the continuance of such Event of Default for ten (10) days, automatically on such tenth (10th) day, and (C) upon the occurrence of any other Event of Default, at the request of (or with the consent of) Required Lenders (1) the Commitments, if any, of each Lender having such Commitments shall immediately terminate; (2) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Loan Party: (x) the unpaid principal amount of and accrued interest on the Term Loans, and (y) the Specified Premium and all other Obligations; and (3) Agents may enforce any and all Liens and security interests created pursuant to Collateral Documents and exercise any other remedies available under contract or applicable law. Each Loan Party shall, at the Collateral Agent’s request, following the occurrence of an Event of Default described in any one of Sections 8.1(a), (c)(i), (f), (g), (h), (i), (k), (l) or (p), make its development, engineering, architecture, and design personnel reasonably available to the Collateral Agent and provide such other information, materials, and assistance to the Collateral Agent, in each case as Agent deems reasonably necessary to train and instruct the Collateral Agent and/or its designee(s) in the development, compilation, operation, maintenance and support of the software (both licensed and internal use-only) of the Loan Parties.
AGENTS
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All notices or writings sent by a Loan Party to the Collateral Agent pursuant to this Section 9.11 shall be accompanied by a written notice to the Collateral Agent that such transmitted notice or writing relates to the AON Insurance Policy. For the avoidance of doubt, no Person that is designated as an observer of Borrower’s board of directors by a current or former Lender, or any Affiliate thereof, shall have any obligation to deliver to the Collateral Agent or Securitization Trustee any information delivered to such Person solely in such person’s capacity as an observer of Borrower’s board of directors.
MISCELLANEOUS
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For avoidance of doubt, no Non-Paying Insurer shall be assigned any portion of the Obligations until all amounts payable by such Non-Paying Insurer under the AON Insurance Policy are so funded. At such time as any Non-Paying Insurer delivers the full balance of its pro rata share of any claim under the AON Insurance Policy, such proceeds shall be used by the Administrative Agent only to fund the acquisition of Term Loans held by Existing Lenders and the assignment thereof to such funding Non-Paying Insurer. In furtherance of such automatic subrogation and assignment, the Administrative Agent shall without requirement for any assignment, notice or instruction, immediately and in all events within five (5) Business Days thereof, (x) distribute to such Lender its ratable share of the AON Insurance Proceeds and (y) following such distribution, record in the Register the assignment of the Term Loan to the AON Designee(s), and each such designee’s ratable share of the aggregate outstanding amount of all Obligations. Further, each of the Lenders agrees to execute and deliver to the Administrative Agent and the AON Designee(s) an Assignment Agreement reflecting such automatic assignment effective as of the date of the automatic assignment described in the first sentence of this Section 10.6(j) to the AON Designee(s) of the aggregate outstanding amount of Obligations so assigned in respect of principal, and each of the AON Designee(s) shall promptly, and in all events within ten (10) Business Days, complete and execute the Assignment Agreement and provide to the Administrative Agent such administrative details, tax certificates and other “know your customer” documentation as Administrative Agent may reasonably request. Each insurer under the AON Insurance Policy or their joint domestic U.S. organized designee by its acceptance of the assignment of the Obligations acknowledges that its failure to provide the required information and certifications may result in Tax withholding in respect of interest payments and other obligations pursuant to applicable Law. All obligations of the insurers under the AON Insurance Policy in this Section 10.6(j) may be satisfied by performance of the joint domestic U.S. organized designee, if any, on behalf of such insurer. Each insurer under the AON Insurance Policy and their joint domestic U.S. organized designee is a designated third-party beneficiary of this Section 10.6(j). For avoidance of doubt, failure of the Lenders and the AON Designee(s) to execute any applicable Assignment Agreement shall have no effect on the automatic subrogation and assignment described above. Each Lender that holds Obligations hereby authorizes AON to deliver the AON Notice and instructs the Administrative Agent that the Administrative Agent is entitled to conclusively rely on the AON Notice in the execution of the assignments of the Obligations provided for in this Section 10.6(j) and will be fully protected under Section 10.3 in doing so.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
BORROWER:
DANIMER SCIENTIFIC, INC.,
a Delaware corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Chief Financial Officer
GUARANTORS:
Meredian holdings group, Inc., a Delaware corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
Danimer Scientific HOLDINGS, LLC, a Delaware limited liability company
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
Danimer Scientific manufacturing, Inc, a Delaware corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
[Signature Page to Financing Agreement]
Meredian, Inc., a Georgia corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
Danimer Scientific, L.L.C., a Georgia limited liability company
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
Danimer Scientific Kentucky, Inc, a Delaware corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
Danimer Bioplastics, Inc., a Georgia corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
Danimer IPCO, LLC, a Delaware limited liability company
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
[Signature Page to Financing Agreement]
Danimer IPholdCO, LLC, a Delaware limited liability company
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
[Signature Page to Financing Agreement]
NOVOMER, INC., a Delaware corporation
By: /s/ Michael A. Hajost
Name: Michael A. Hajost
Title: Treasurer
[Signature Page to Financing Agreement]
COLLATERAL AGENT AND ADMINISTRATIVE AGENT:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
By: /s/ James A. Hanley
Name: James A. Hanley
Title: Vice President
[Signature Page to Financing Agreement]
TERM LOAN LENDER:
JEFFERIES FUNDING LLC
By: /s/ Mark Sahler
Name: Mark Sahler
Title: Managing Director
[Signature Page to Financing Agreement]
APPENDIX A
TO FINANCING AGREEMENT
Term Loan Commitments
Lender | Term Loan Commitment | Pro Rata Share |
Jefferies Funding LLC | $130,000,000 | 100% |
|
|
|
Total | $130,000,000 | 100% |
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4864-0508-0906 v16