UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry into a Material Definitive Agreement.
On April 29, 2021, Danimer Scientific Holdings, Inc., Meredian, Inc., Meredian Bioplastics, Inc., Danimer Scientific, L.L.C., Danimer Bioplastics, Inc. and Danimer Scientific Kentucky, Inc. (collectively, the “Borrowers”) and the other loan parties party thereto (together with the Borrowers, the “Loan Parties”), entered into an asset-based Revolving Credit Agreement (the “Credit Agreement”) with Truist Bank (together with its successors and assigns, the “Lender”). Each of the Borrowers is an indirect subsidiary of Danimer Scientific, Inc. (the “Company”).
The Credit Agreement provides for borrowings under a revolving commitment of $20,000,000 with a $5,000,000 letter of credit sublimit and a $5,000,000 sublimit supported by a working capital guarantee of the Export-Import Bank of the United States and matures on April 29, 2026, unless terminated earlier in accordance with the Credit Agreement. The amount of the revolving commitment available for borrowing at any given time is subject to a borrowing base formula that is based upon the Company’s accounts receivable and inventory, as more fully described in the Credit Agreement. The Credit Agreement also includes a separate $1,000,000 equipment loan borrowing facility and permits the Borrowers, subject to certain requirements, to request and arrange with lenders for an incremental $10,000,000 of revolving commitments.
Interest on amounts outstanding under the Credit Agreement is payable monthly and shall be, at the election of the Borrowers, either a base rate (as determined in accordance with the Credit Agreement) plus an applicable margin of 1.50% for revolving loans and 1.75% for equipment loans, or a LIBOR market index rate (“LMIR”) (as determined in accordance with the Credit Agreement) plus an applicable margin of 2.50% for revolving loans and 2.75% for equipment loans; provided that, if the Borrowers and their subsidiaries have a consolidated fixed charge coverage ratio of not less than 1.1 to 1.0 at the end of any calendar month for the trailing twelve month period and no event of default exists, then for base rate revolving loans the applicable margin shall be 1.00% and for LMIR rate revolving loans the applicable margin shall be 2.00%.
The Credit Agreement contains customary affirmative and negative covenants, with certain permitted exceptions, of the Company and its subsidiaries, which, among other things, provide for the delivery of financial statements and other information, require notice of certain material events, contain certain restrictions on the conduct of their business, relate to cash management and the administration of accounts, inventory and equipment, restrict their ability to incur debt and liens, restrict their ability to make investments and payments, restrict their ability to effect fundamental corporate changes and sell assets and restrict their ability to enter into certain types of transactions or agreements. The Credit Agreement also includes a financial covenant of the Borrowers to maintain a consolidated fixed charge coverage ratio of at least 1.1. to 1.0 for each trailing twelve month period; provided that such consolidated fixed charge coverage ratio shall not be tested until the earlier to occur of (i) thirty (30) months after the closing date of the Credit Agreement and (ii) the date on which Borrowers notify Lender in writing of the election to release the availability block (as provided for in the Credit Agreement) and commence testing of the such consolidate fixed charge coverage ratio. In addition, the Credit Agreement contains a covenant restricting the ability of the Company and Meredian Holdings Group, Inc., a direct subsidiary of the Company, to own, hold and acquire assets and to incur liabilities.
The occurrence of certain events or conditions described in the Credit Agreement (subject to grace periods in certain cases) constitutes an event of default. If an event of default occurs, the Lender may, among other things, declare all obligations under the Credit Agreement immediately due and payable and terminate all commitments to extend credit under the Credit Agreement. In addition, if certain events of defaults occur, to the extent permitted by applicable law and without action by the Lender, all obligations under the Credit Agreement shall become immediately due and payable and all commitments of the Lender to extend credit under the Credit Agreement shall terminate.
On April 29, 2021, the Borrowers, the Company, Meredian Holdings Group, Inc. and the Lender entered into a Guaranty and Security Agreement (the “Security Agreement”). Pursuant to the Security Agreement, the Borrowers granted a security interest in substantially all of their personal property to secure the obligations under the Credit Agreement and the Company and MHG guaranteed, on an unsecured basis, all of the obligations under the Credit Agreement.
The foregoing summaries of the Credit Agreement and the Security Agreement do not purport to be complete and are subject to and qualified in their entirety by the full texts of the Credit Agreement and the Security Agreement, which are included as Exhibit 10.1 and Exhibit 10.2, respectively, to this Current Report on Form 8-K, and which are incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The information set forth under Item 1.01 is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
Exhibit No. |
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Description |
10.1 |
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Revolving Credit Agreement, made and entered into on April 29,. 2021, by and among Danimer Scientific Holdings, Inc., Meredian, Inc., Meredian Bioplastics, Inc., Danimer Scientific, L.L.C., Danimer Bioplastics, Inc. and Danimer Scientific Kentucky, Inc., as borrowers, and Truist Bank, as lender.
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10.2 |
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Guaranty and Security Agreement, dated as of April 29, 2021, made by Danimer Scientific Holdings, Inc., Meredian, Inc., Meredian Bioplastics, Inc., Danimer Scientific, L.L.C., Danimer Bioplastics, Inc., Danimer Scientific Kentucky, Inc., Danimer Scientific, Inc. and Meredian Holdings Group, Inc. in favor of Truist Bank. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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Danimer Scientific, Inc. |
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Date: |
May 5, 2021 |
By: |
/s/ John A. Dowdy, III |
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John A. Dowdy, III |
EXHBIT 10.1
Execution Version
REVOLVING CREDIT AGREEMENT
dated April 29, 2021
among
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,
and
TRUIST BANK,
as Lender
TABLE OF CONTENTS
Article I DEFINITIONS; CONSTRUCTION 1
Section 1.1. Definitions 1
Section 1.2. Accounting Terms and Determination 34
Section 1.3. Terms Generally 34
Section 1.4. Divisions 35
Article II AMOUNT AND TERMS OF THE COMMITMENTS 35
Section 2.1. Revolving Loans 35
Section 2.2. Procedure for Revolving Loans 37
Section 2.3. Increase in Revolving Commitment 37
Section 2.4. Termination of Commitments 38
Section 2.5. Repayment Provisions 38
Section 2.6. Prepayments of Revolving Loans 38
Section 2.7. Interest on Loans. 38
Section 2.8. Fees 39
Section 2.9. Computation of Interest and Fees. 40
Section 2.10. Inability to Determine Interest Rates 40
Section 2.11. Illegality 42
Section 2.12. Increased Costs. 42
Section 2.13. Payments Generally 43
Section 2.14. Taxes 43
Section 2.15. Letters of Credit. 43
Section 2.16. Borrower Agent 46
Section 2.17. Nature and Extent of Each Borrower's Liability. 46
Section 2.18. Collateral 48
Section 2.19. Equipment Purchase Facility. 48
Article III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT 50
Section 3.1. Conditions Precedent to Effectiveness 50
Section 3.2. Each Credit Event 53
Article IV REPRESENTATIONS AND WARRANTIES 54
Section 4.1. Existence; Power 54
Section 4.2. Organizational Power; Authorization 54
Section 4.3. Governmental Approvals; No Conflicts 54
Section 4.4. Financial Statements 55
Section 4.5. Litigation and Environmental Matters. 55
Section 4.6. Compliance with Laws and Agreements 55
Section 4.7. Investment Company Act, Etc. 55
Section 4.8. Taxes 55
Section 4.9. Margin Regulations 56
Section 4.10. ERISA 56
Section 4.11. Intellectual Property. 57
Section 4.12. Disclosure 57
Section 4.13. Labor Relations 57
Section 4.14. Capital Structure 57
Section 4.15. Solvency 57
Section 4.16. Anti-Corruption Laws and Sanctions 57
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Section 4.17. Title to Properties; Priority of Liens 58
Section 4.18. Accounts 58
Section 4.19. Environmental Compliance. 59
Section 4.20. Material Agreements. 59
Section 4.21. Anti-Terrorism Laws. 59
Section 4.22. Trading with the Enemy 60
Section 4.23. Parent and PubCo as Holding Companies 60
Section 4.24. Kentucky NMTC Transaction 60
Section 4.25. Advantage Transaction 60
Section 4.26. Kentucky IRB 60
Article V AFFIRMATIVE COVENANTS 61
Section 5.1. Financial Statements and Other Information 61
Section 5.2. Notices of Material Events 63
Section 5.3. Existence; Conduct of Business 65
Section 5.4. Compliance with Laws, Etc 65
Section 5.5. Payment of Obligations 65
Section 5.6. Books and Records 65
Section 5.7. Visitation, Inspection, Etc 65
Section 5.8. Maintenance of Properties; Insurance 65
Section 5.9. Reserved. 66
Section 5.10. Use of Proceeds and Letters of Credit 66
Section 5.11. Cash Management 66
Section 5.12. Additional Subsidiaries and Collateral 68
Section 5.13. Additional Real Estate; Leased Locations. 68
Section 5.14. Administration of Accounts. 69
Section 5.15. Administration of Inventory. 69
Section 5.16. Administration of Equipment. 69
Section 5.17. Ex-Im Export Orders 70
Section 5.18. Post-Closing Matters. 70
Article VI FINANCIAL COVENANTS 70
Section 6.1. Consolidated Fixed Charge Coverage Ratio 70
Article VII NEGATIVE COVENANTS 70
Section 7.1. Indebtedness 70
Section 7.2. Liens 72
Section 7.3. Fundamental Changes. 73
Section 7.4. Investments, Loans, Etc 73
Section 7.5. Restricted Payments 74
Section 7.6. Sale of Assets 74
Section 7.7. Transactions with Affiliates 75
Section 7.8. Restrictive Agreements 75
Section 7.9. Sale and Leaseback Transactions 75
Section 7.10. Hedging Transactions 75
Section 7.11. Amendment to Material Documents 76
Section 7.12. Restrictions on Payment of Certain Debt 76
Section 7.13. Accounting Changes 76
Section 7.14. Negative Pledge on Real Estate and Equity Interests 76
Section 7.15. Activities of Parent and PubCo Holding Companies 76
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Article VIII EVENTS OF DEFAULT 77
Section 8.1. Events of Default 77
Section 8.2. Remedies Upon Event of Default 80
Section 8.3. Cumulative Rights; No Waiver 81
Article IX MISCELLANEOUS 81
Section 9.1. Notices. 81
Section 9.2. Waiver; Amendments. 83
Section 9.3. Expenses; Indemnification. 83
Section 9.4. Successors and Assigns. 84
Section 9.5. Governing Law; Jurisdiction; Consent to Service of Process. 85
Section 9.6. WAIVER OF JURY TRIAL 86
Section 9.7. Right of Setoff 86
Section 9.8. Counterparts; Integration 86
Section 9.9. Survival 86
Section 9.10. Severability 87
Section 9.11. Confidentiality 87
Section 9.12. Interest Rate Limitation 87
Section 9.13. Waiver of Effect of Corporate Seal 87
Section 9.14. Power of Attorney 87
Section 9.15. Performance of Borrowers' Obligations 88
Section 9.16. Further Assurances 88
Section 9.17. Waiver of Certain Rights 88
Section 9.18. Patriot Act 88
Section 9.19. No Advisory or Fiduciary Responsibility 89
Schedules
Schedule 4.5 - Environmental Matters
Schedule 4.10 - ERISA
Schedule 4.11 - Intellectual Property
Schedule 4.14 - Capital Structure
Schedule 4.20 - Material Agreements
Schedule 5.11 - Bank Accounts
Schedule 7.1 - Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Schedule 7.7 - Transactions with Affiliates
Schedule 7.15 - Parent Retained Contracts
Schedule 7.15(b) - Parent Liabilities
Exhibits
Exhibit A - Form of Domestic Revolving Note
Exhibit B - Form of Ex-Im Revolving Note
Exhibit C - Form of Equipment Loan Note
Exhibit 2.2 - Notice of Revolving Borrowing
Exhibit 2.7(e) - Notice of Conversion
Exhibit 3.1(b)(vi) - Form of Closing Certificate
Exhibit 5.1(c) - Form of Compliance Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered into on April 29, 2021, by and among Danimer Scientific Holdings, LLC, a Delaware limited liability company ("Holdings"), Meredian, Inc., a Georgia corporation ("Meredian"), Meredian Bioplastics, Inc., a Georgia corporation ("MBP"), Danimer Scientific, L.L.C., a Georgia limited liability company ("Danimer"), Danimer Bioplastics, Inc., a Georgia corporation ("DBP"), and Danimer Scientific Kentucky, Inc., a Delaware corporation ("DSK"; Holdings, Meredian, MBP, Danimer, DBP, and DSK, each a "Borrower" and collectively, the "Borrowers"), and TRUIST BANK, a North Carolina banking corporation (together with its successors and assigns, "Lender").
R E C I T A L S:
Borrowers have requested that Lender provide a senior secured revolving credit and letter of credit facility to Borrowers as more fully described herein.
Each Borrower has requested that Lender make this credit facility available to Borrowers on a combined basis, in order to finance Borrowers' business most efficiently and economically. Borrowers' business is a mutual and collective enterprise, and the successful operation of each Borrower is dependent upon the successful performance of the integrated group. Borrowers believe that consolidation of their credit facility will enhance the aggregate borrowing power of each Borrower and ease administration of the facility, all to the mutual advantage of Borrowers.
Lender's willingness to extend financial accommodations to Borrowers, and to administer Borrowers' collateral security therefor, on a combined basis as and to the extent more fully set forth in this Agreement, is done solely as an accommodation to Borrowers and at Borrowers' request and in furtherance of Borrowers' mutual and collective enterprise.
Subject to the terms and conditions of this Agreement, Lender is willing to establish the requested revolving credit and letter of credit facility for the benefit of Borrowers.
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid and the premises and the mutual covenants herein contained, the receipt and sufficiency of which are hereby acknowledged, Borrowers and Lender agree as follows:
"Account Debtor" shall mean a Person obligated to pay an Account.
"Accounts Formula Amount" shall mean, on any date of determination thereof, an amount equal to 85% (or such lesser percentage as Lender may determine from time to time in its discretion) of the net amount of Eligible Non-Export Accounts on such date. As used herein, the phrase "net amount of Eligible Accounts" shall mean the face amount of such Accounts on any date less any and all returns, rebates,
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discounts (which may, at Lender's option, be calculated on shortest terms), credits, allowances or Taxes (including sales, excise or other taxes) at any time issued, owing, claimed by Account Debtors, granted, outstanding or payable in connection with, or any interest accrued on the amount of, such Accounts at such date.
"Advantage" shall mean, collectively, Southeast Community Development Fund X, LLC, a Delaware limited liability company, for itself and as administrative agent under the Advantage Loan Documents, and PIFS Sub-CDE XX, LLC, a Virginia limited liability company.
"Advantage Loan Agreement" shall mean that certain Loan and Security Agreement dated as of March 13, 2019, among Borrowers and Advantage (as amended on or before the Closing Date and as at any other time amended, restated, supplemented, refinanced, replaced or otherwise modified to the extent permitted by the terms of the Subordination Agreement (Tri-Party) and the Subordination Agreement (Advantage)).
"Advantage Loan Documents" shall have the meaning given to the term "Loan Documents" in the Advantage Loan Agreement as in effect on the Closing Date (in each case, as amended on or before the Closing Date and as at any other time amended, restated, supplemented, refinanced, replaced or otherwise modified to the extent permitted by the terms of the Subordination Agreement (Tri-Party) and the Subordination Agreement (Advantage)).
"Advantage Subordinated Debt" shall mean the Indebtedness owing from MBP and Holdings to Advantage (and guaranteed by Parent) pursuant to the Advantage Loan Documents in the aggregate original principal amount of $9,999,980, which is comprised of (i) Indebtedness of Holdings in the aggregate original principal amount of $5,499,980 in connection with a loan under the Georgia Rural Jobs Act, and (ii) Indebtedness of MBP in the aggregate original principal amount of $4,500,000 in connection with an unleveraged New Markets Tax Credit loan, and each of which shall constitute Subordinated Debt hereunder.
"Affiliate" shall mean, with respect to a specified Person, another Person that directly or indirectly through one or more intermediaries, Controls, or is Controlled by, or is under common Control with, such specified Person.
"Allocable Amount" shall have the meaning set forth in Section 2.17(c)(ii).
"Anti-Corruption Laws" shall mean all laws, rules, and regulations of any jurisdiction applicable to any Loan Party or any Subsidiary thereof from time to time concerning or relating to bribery or corruption.
"Anti-Terrorism Law" shall mean any law relating to terrorism or money-laundering, including Executive Order No. 13224, the PATRIOT Act, the applicable laws comprising or implementing the Bank Secrecy Act of 1970, as amended, including by the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, and the applicable laws administered by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing applicable laws may from time to time be amended, renewed, extended, or replaced).
"Applicable Base Rate" shall mean a per annum rate determined by Lender equal to the sum of the Base Rate plus the Applicable Margin applicable to Base Rate Loans, which rate shall adjust simultaneously with any changes in the Base Rate.
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"Applicable LMIR Rate" shall mean a per annum rate equal to the sum of LMIR in effect from time to time, plus the Applicable Margin applicable to LMIR Loans.
"Applicable Margin" shall mean, a percentage equal to:
provided that if Borrowers and their Subsidiaries achieve a Consolidated Fixed Charge Coverage Ratio of not less than 1.1 to 1.0 as of the last day of any month ending after the Closing Date for the twelve-month period then ending (regardless of whether the Consolidated Fixed Charge Coverage Ratio is required to be tested for such period), then, so long as no Event of Default exists at such time, the Applicable Margin shall thereafter (commencing on the first calendar day of the month immediately following the date on which Borrowers deliver the applicable financial statements and Compliance Certificate pursuant to Section 5.1) be a percentage equal to:
(1) with respect to any Domestic Revolving Loan, or portion thereof, (A) that is a Base Rate Loan, 1.00%, or (B) that is a LMIR Loan, 2.00%, and
(2) with respect to any Ex-Im Revolving Loan, or portion thereof, (B) that is a Base Rate Loan, 1.00%, or (B) that is a LMIR Loan, 2.00%.
"Applicable Tax Amount" shall mean, in any relevant year of determination, with respect to any Person holding Equity Interests of a Loan Party and taking into account only such Person’s share of income and deductions attributable to its equity ownership interest in such Loan Party, an aggregate amount equal to such holder of Equity Interests' actual federal and state income tax liability for such taxable year (or portion thereof) attributable to such Loan Party's taxable income (taking into account the deductibility of state and local taxes for federal income tax purposes).
"Asset Disposition" shall mean with respect to any Person, a sale, issuance, assignment, lease, license, Consignment, transfer, abandonment, or other disposition of such Person’s Property, including a disposition of Property in connection with a sale-leaseback transaction, synthetic lease, or similar arrangement and any sale or issuance of Equity Interests by a Borrower or any direct or indirect Subsidiary of a Borrower.
“Available Tenor” shall mean, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 2.10(e).
"Availability" shall mean on any determination date, the amount equal to the lesser of (i) the current maximum amount of the Revolving Commitment minus the Availability Reserve or (ii) the Borrowing Base on such date.
"Availability Block" shall mean, collectively, the Domestic Availability Block and the Ex-Im Availability Block.
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"Availability Period" shall mean the period from the Closing Date to the Commitment Termination Date.
"Availability Reserve" shall mean on any date of determination thereof, an amount equal to the sum of the following (without duplication): (i) an amount equal to three (3) months' rental payments or other similar charges owing at such time by any Loan Party in respect of business premises of such Loan Party owned by any Person (other than business premises that do not contain any Eligible Inventory or other material Collateral), for which Lender has not received a Lien Waiver from the landlord or owner of such property; (ii) any amounts which any Loan Party is obligated to pay pursuant to the provisions of any of the Loan Documents that Lender elects to pay for the account of such Loan Party in accordance with any of the Loan Documents; (iii) all customer deposits or other prepayments held by any Loan Party; (iv) the aggregate amount of all liabilities and obligations that are secured by Liens upon any of the Collateral that are senior in priority to Lender's Liens (provided, that the imposition of a reserve hereunder on account of such Liens shall not be deemed a waiver of any Default or Event of Default that arises from the existence of such Liens); (v) the Bank Product Reserve; (vi) the Dilution Reserve; (vii) with respect to Eligible Inventory and Eligible Export-Related Inventory, reserves for any required royalty or similar licensing payments; (viii) reserves for any other matter (including risks related to defective products, customer standards, acceptance protocols, and regulatory approvals) that could reasonably be expected to have a negative impact on the value of Eligible Inventory, Eligible Export-Related Inventory, Eligible Accounts, Eligible Export-Related Accounts or Equipment; (ix) reserves for warranties, claims, indemnification obligations and other potential setoffs arising in connection with an Eligible Account or an Eligible Export-Related Account or owed by a Borrower to an Account Debtor with respect to any Eligible Account, as determined by Lender in its discretion; and (x) such additional reserves as Lender may establish from time to time in its discretion.
"Bank Product Obligations" shall mean, collectively, all obligations and other liabilities of any Loan Party to Lender or any Affiliate of Lender arising with respect to any Bank Products.
"Bank Product Reserves" shall mean, collectively, all reserves that Lender, from time to time, establishes for Bank Products then provided or outstanding.
"Bank Products" shall mean all bank, banking, financial, and other similar or related products, services and facilities offered or provided by Lender or any Affiliate of Lender to any Loan Party or any of its Subsidiaries, including (i) any treasury or other cash management services, including deposit accounts, automated clearing house (ACH) origination and other funds transfer, depository (including cash vault and check deposit), zero balance accounts and sweeps, return items processing, controlled disbursement accounts, positive pay, lockboxes and lockbox accounts, account reconciliation and information reporting, payables outsourcing, payroll processing, trade finance services, investment accounts and securities accounts, (ii) card services, including credit cards (including purchasing cards and commercial cards), prepaid cards, including payroll, stored value and gift cards, merchant services processing, and debit card services, (iii) bankers' acceptances, drafts, documentary services, and foreign currency exchange services, (but excluding Letters of Credit), (iv) any bank product offered in respect of any Hedging Transaction, (v) supply chain finance arrangements and (vi) equipment leasing or financing arrangements.
"Bankruptcy Code" shall mean Title 11 of the United States Code.
"Base Rate" shall mean the highest of (i) the rate which Lender publicly announces from time to time as its prime lending rate, as in effect from time to time, (ii) the Federal Funds Rate, as in effect from time to time, plus one-half of one percent (0.50%) per annum and (iii) LMIR plus one percent (1.00%) per annum (any changes in such rates to be effective as of the date of any change in such rate). Lender’s prime lending rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to
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any customer. Lender may make commercial loans or other loans at rates of interest at, above, or below Lender’s prime lending rate. Each change in Lender's prime lending rate shall be effective from and including the date such change is publicly announced as being effective.
"Base Rate Loan" shall mean any Loan bearing interest at a rate based upon the Base Rate in effect from time to time.
"Benchmark" shall mean, initially, LMIR; provided that if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LMIR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.10.
"Benchmark Replacement" shall mean, for any Available Tenor, the first alternative set forth in the order below that can be determined by Lender for the applicable Benchmark Replacement Date:
(2) the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;
(3) the sum of: (a) the alternate benchmark rate that has been selected by Lender as the replacement for the then-current Benchmark for the applicable Corresponding Tenor 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 related Benchmark Replacement Adjustment;
provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by Lender in its reasonable discretion. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
"Benchmark Replacement Adjustment" shall mean, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement:
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would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and
provided that, in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by Lender in its reasonable discretion.
"Benchmark Replacement Conforming Changes" shall mean, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions and other technical, administrative or operational matters) that Lender decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by Lender in a manner substantially consistent with market practice (or, if Lender decides that adoption of any portion of such market practice is not administratively feasible or if Lender determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as Lender decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
"Benchmark Replacement Date" shall mean the earliest to occur of the following events with respect to the then-current Benchmark:
(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of:
(a) the date of the public statement or publication of information referenced therein; and
(b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof);
(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein; or
(3) in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Borrower Agent.
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For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
"Benchmark Transition Event" shall mean the occurrence of one or more of the following events with respect to the then-current Benchmark:
(2) a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
"Benchmark Unavailability Period" shall mean the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.10 and (y) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.10.
"Beneficial Ownership Certification" shall mean a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.
"Beneficial Ownership Regulation" shall mean 31 C.F.R. § 1010.230.
"Blocked Person" shall have the meaning set forth in Section 4.21(b).
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"Borrower Agent" shall have the meaning set forth in Section 2.16.
"Borrowing Base" shall mean at any time of determination, the sum of the Domestic Borrowing Base and the Ex-Im Borrowing Base.
"Borrowing Base Certificate" shall mean a certificate, in form and substance satisfactory to Lender, by which Borrower Agent shall certify to Lender, with such frequency as provided herein, the amount of the Borrowing Base as of the date of the certificate (which date shall be not more than two (2) Business Days earlier than the date of submission of such certificate to Lender) and the calculation of such amount.
"Business Day" shall mean, (i) any day other than a Saturday, Sunday or other day on which commercial banks in Atlanta, Georgia are authorized or required by law to close and (ii) with respect to Interest Periods applicable to LMIR or any Benchmark Replacement, a day on which Lender is open for business and on which dealings in U.S. dollar deposits are carried on in the London interbank market.
"Capital Expenditures" shall mean, for any period, without duplication, (i) the additions to Property, plant and equipment and other capital expenditures of Borrower or any of its Subsidiaries that are (or would be) set forth on a consolidated statement of cash flows of Borrowers for such period prepared in accordance with GAAP and (ii) Capital Lease Obligations incurred by Borrowers and their Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations of such Person to pay rent or other amounts under any lease (or other arrangement conveying the right to use) of 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.
"Cash Collateral" shall mean cash delivered to Lender to Cash Collateralize any Obligations, and all interest, dividends, earnings and other proceeds relating thereto.
"Cash Collateralize" shall mean the delivery of cash to Lender, as security for the payment of any Obligations, in an amount equal to (i) with respect to Obligations arising from LC Disbursements, 105% of the aggregate Obligations arising from LC Disbursements, and (ii) with respect to any inchoate, contingent or other Obligations (including Bank Product Obligations), Lender's good faith estimate of the amount due or to become due, including fees, expenses and indemnification hereunder. "Cash Collateralization" has a correlative meaning.
"Change in Control" shall mean the occurrence of any one or more of the following:
(a) any Person or “group” (within the meaning of Rules 13d 3 and 13d 5 under the Exchange Act) (i) shall have acquired current beneficial ownership of 35% or more on a fully diluted basis of the voting and/or economic interest in the Capital Stock of PubCo or (ii) shall have obtained the current power (whether or not exercised) to elect a majority of the members of the board of directors of PubCo;
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"Change in Law" shall mean (i) the adoption of any applicable law, rule or regulation after the date of this Agreement, (ii) any change in any applicable law, rule or regulation, or any change in the interpretation, implementation or application thereof, by any Governmental Authority after the date of this Agreement, or (iii) compliance by Lender with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided, that for purposes of this Agreement, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives in connection therewith and (y) all requests, rules, guidelines or directives promulgated by Lender for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a "Change in Law", regardless of the date enacted, adopted or issued.
"Charges" shall have the meaning set forth in Section 9.12.
"Closing Date" shall mean the date on which the conditions precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived in writing by Lender.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in effect from time to time.
"Collateral" shall have the meaning given such term in the Security Agreement.
"Collateral Assignment of Business Interruption Insurance" shall mean that certain Collateral Assignments of Rights Under Business Interruption Insurance Policy dated on or about the Closing Date by and among the Loan Parties and Lender.
"Commitment" shall mean the Revolving Commitment.
"Commitment Termination Date" shall mean the earliest of (i) April 29, 2026, (ii) the date on which the Revolving Commitments are terminated pursuant to Section 2.4, (iii) the date on which the Revolving Commitments are terminated pursuant to Section 8.2, (iv) the date that is ninety (90) days prior
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to the stated maturity date of the Advantage Subordinated Debt and (v) the date that is ninety (90) days prior to the maturity date of any other Indebtedness of any Loan Party in excess of $5,000,000.
"Commodity Exchange Act" shall mean the Commodity Exchange Act (7 U. S. C. §1 et seq.), as amended and in effect from time to time, and any successor statute.
"Compliance Certificate" shall mean a certificate from the chief financial officer of Borrowers in the form of, and containing the certifications set forth in, the certificate attached hereto as Exhibit 5.1(c).
"Concentration Account" shall have the meaning set forth in Section 5.11(a).
"Consolidated EBITDA" shall mean, for Borrowers and their Subsidiaries for any period, an amount equal to the sum of (i) Consolidated Net Income for such period plus (ii) to the extent deducted in determining Consolidated Net Income for such period and without duplication, (A) Consolidated Interest Expense, (B) income tax expense determined on a consolidated basis in accordance with GAAP, (C) depreciation and amortization, determined on a consolidated basis in accordance with GAAP, and (D) the amount of any non-cash compensation as the result of any grant of stock or stock equivalents to employees, officers, directors or consultants of Borrowers and their Subsidiaries, minus, (iii) to the extent included in determining Consolidated Net Income for such period, (A) any positive income resulting from any financing obtained by any of Borrowers and their Subsidiaries under the Coronavirus Aid, Relief and Economic Security Act, (B) any positive income resulting from any forgiveness of Indebtedness (up to the amount of Indebtedness received and forgiven), and (C) any positive income resulting from any financing obtained by any of Borrowers and their Subsidiaries in connection with new markets tax credits that may be claimed pursuant to Section 45D of the Code.
"Consolidated Fixed Charge Coverage Ratio" shall mean, as of any date, the ratio of (i) Consolidated EBITDA plus solely to the extent that the expenses to which such forgiveness relates were incurred in such period, any positive income resulting from the forgiveness of Indebtedness with respect to any financing obtained by any Borrower or its Subsidiaries under the Coronavirus Aid, Relief and Economic Security Act (up to the amount of loans received by Borrowers and their Subsidiaries under such Act) minus Unfinanced Cash Capital Expenditures minus Taxes paid in cash (including any Permitted Tax Distributions) to (ii) Consolidated Fixed Charges, in each case for the applicable period.
"Consolidated Fixed Charges" shall mean, for Borrowers and their Subsidiaries for any period, the sum (without duplication) of (i) Consolidated Interest Expense for such period less interest income paid to the company on leverage loans receivables outstanding in connection with any financing obtained by any of Borrowers and their Subsidiaries in connection with new markets tax credits that may be claimed pursuant to Section 45D of the Code, (ii) scheduled principal payments made on Consolidated Total Debt during such period, and (iii) Restricted Payments paid in cash to Persons (other than the Loan Parties) during such period.
"Consolidated Interest Expense" shall mean, for Borrowers and their Subsidiaries for any period determined on a consolidated basis in accordance with GAAP, the sum of (i) total interest expense, including the interest component of any payments in respect of Capital Lease Obligations capitalized or expensed during such period (whether or not actually paid during such period) plus (ii) the net amount payable (or minus the net amount receivable) with respect to Hedging Transactions during such period (whether or not actually paid or received during such period).
"Consolidated Net Income" shall mean, for Borrowers and their Subsidiaries for any period, the net income (or loss) of Borrowers and their Subsidiaries for such period determined on a consolidated basis in accordance with GAAP, but excluding therefrom (to the extent otherwise included therein) (i) any
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extraordinary gains or losses, (ii) any gains (or losses) attributable to write-ups (or write-downs) of assets or the sale of assets (other than the sale of Inventory in the ordinary course of business) and (iii) any equity interests of a Borrower or any Subsidiary of a Borrower in the unremitted earnings of any Person that is not a Subsidiary of a Borrower and (iv) any income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of a Borrower or is merged into or consolidated with any Borrower or any Subsidiary of a Borrower on the date that such Person’s assets are acquired by any Borrower or any Subsidiary of a Borrower.
"Consolidated Total Debt" shall mean, as of any date of determination, all Indebtedness of Borrowers and their Subsidiaries measured on a consolidated basis as of such date, but excluding (unless currently due and payable) Indebtedness constituting net Hedging Obligations.
"Control" shall mean 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 ability to exercise voting power, by contract or otherwise. The terms "Controlling" or "Controlled" have meanings correlative thereto.
"Controlled Account" shall have the meaning set forth in Section 5.11(a).
"Copyright Security Agreement" shall mean any Copyright Security Agreement executed by a Loan Party in favor of Lender on the Closing Date, and each other copyright security agreement at any time executed by a Loan Party in favor of Lender in connection herewith.
“Corresponding Tenor” with respect to any Available Tenor shall mean, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
"Covenant Election Date" shall mean earlier to occur of (i) thirty (30) months after the Closing Date and (ii) the date on which Borrower Agent notifies Lender in writing of its election to release the Availability Block and commence testing of the Fixed Charge Coverage Ratio in accordance with Section 6.1.
"Daily Simple SOFR" shall mean, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by Lender in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if Lender decides that any such convention is not administratively feasible for Lender, then Lender may establish another convention in its reasonable discretion.
"Default" shall mean any condition or event that, with the giving of notice or the lapse of time or both, would constitute an Event of Default.
"Default Rate" shall have the meaning set forth in Section 2.7(b).
"Deposit Account Control Agreement" shall mean a control agreement in form and substance satisfactory to Lender executed by any depository institution at which any Loan Party (other than PubCo and Parent) maintains a Deposit Account, pursuant to which, among other things, Lender shall perfect its Lien on such Deposit Account.
"Dilution Ratio" shall mean, at any date, the amount (expressed as a percentage) equal to (i) the aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write-offs and other non-cash credits which are recorded to reduce domestic Accounts and foreign Accounts, as
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applicable, for the twelve most recently ended Fiscal Months, divided by (ii) total gross sales from Borrowers for the same Fiscal Months.
"Dilution Reserve" shall mean, at any date, an amount equal to (i) the percentage points by which the Dilution Ratio exceeds five percent (5%), multiplied by (ii) the Eligible Accounts or Eligible Export-Related Accounts, as applicable, on such date.
"Dollar(s)" and the sign "$" shall mean lawful money of the United States of America.
"Domestic Availability Block" shall mean $3,000,000.
"Domestic Borrowing Base" shall mean, on any date of determination thereof, an amount equal to the sum of (i) the Accounts Formula Amount, plus (ii) the Inventory Formula Amount, minus (iii) at all times prior to the Covenant Election Date, the Domestic Availability Block, minus (iv) the Availability Reserve on such date (other than, to the extent deducted in the calculation of the Ex-Im Borrowing Base on such date, the portion of the Availability Reserve attributable to Eligible Export-Related Inventory and Eligible Export-Related Accounts or otherwise solely related to the Ex-Im facility evidenced by this Agreement).
"Domestic Out-of-Formula Condition" shall have the meaning set forth in Section 2.1(c)(i).
"Domestic Revolving Commitment" shall mean the obligation of Lender to make Domestic Revolving Loans to Borrowers in an aggregate principal amount, subject to Section 2.3, not exceeding $15,000,000.
"Domestic Revolving Credit Exposure" shall mean, on any date, the sum of the outstanding Domestic Revolving Loans and the LC Exposure.
"Domestic Revolving Loan" shall mean a loan made by Lender under the Domestic Revolving Commitment pursuant to Section 2.1(a)(i).
"Domestic Revolving Note" shall mean a promissory note of Borrowers payable to the order of Lender in the principal amount of the Domestic Revolving Commitment, in substantially the form of Exhibit A.
"Domestic Subsidiary" shall mean any Subsidiary that is incorporated or organized under the laws of any State of the United States or the District of Columbia.
"Early Opt-in Election" shall mean, if the then-current Benchmark is LMIR, the occurrence of:
(1) a determination by Lender that at least five currently outstanding U.S. dollar-denominated syndicated or bilateral credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate, and
(2) the election by Lender to trigger a fallback from LMIR and the provision by Lender of written notice of such election to the Borrower Agent.
"Eligible Account" shall mean an Account of a Borrower which arises in the Ordinary Course of Business of a Borrower from the sale of goods or the provision of services, in each case which is payable in Dollars, is subject to Lender's duly perfected first priority Lien, and is deemed by Lender, in its discretion,
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to be an Eligible Account. Without limiting the generality of the foregoing, unless Lender otherwise agrees, no Account shall be an Eligible Account if:
(i) it arises out of a sale made by a Borrower to any other Subsidiary or Affiliate of a Borrower, or a Person controlled by an Affiliate of any Borrower;
(ii) it is due or unpaid more than ninety (90) days after the original invoice date;
(iii) it is unpaid more than sixty (60) days after its due date;
(iv) 50% or more of the Accounts from the Account Debtor are not deemed Eligible Accounts hereunder;
(v) the total Accounts of any Account Debtor exceed, (x) with respect to such Accounts that are Eligible Non-Export Accounts, 25% of the aggregate amount of all Eligible Accounts, and (y) with respect to such Accounts that are Eligible Export Accounts, 50% of the aggregate amount of all Eligible Accounts, in each case to the extent of such excess;
(vi) any covenant, representation or warranty contained in this Agreement (including Section 4.18), the Security Agreement or any other Loan Document with respect to such Account is inaccurate, untrue or has been breached;
(vii) the Account Debtor is also any Borrower's creditor or supplier to the extent that such Account Debtor has the right to offset, deduct or assert counterclaims with respect to such Account, or the Account Debtor has disputed liability with respect to such Account, or the Account Debtor has made any claim with respect to any other Account due from such Account Debtor to any Borrower, or the Account otherwise is or may become subject to any right of setoff, counterclaim, recoupment, reserve, defense or chargeback, provided that, the Accounts of such Account Debtor shall be ineligible only to the extent of such dispute or right of offset, counterclaim, recoupment, reserve, defense or chargeback;
(viii) an Insolvency Proceeding has been commenced by or against the Account Debtor or the Account Debtor has failed, suspended or ceased doing business;
(ix) the Account Debtor is not or has ceased to be Solvent;
(x) it arises from a sale to an Account Debtor that is organized under the laws of any jurisdiction outside of the United States or that has its principal office, assets or place of business outside the United States;
(xi) it arises from a sale to the Account Debtor on a bill-and-hold, guaranteed sale, sale-or-return, sale-on-approval, consignment or any other repurchase or return basis;
(xii) the Account Debtor is located in a state in which the applicable Borrower is deemed to be doing business under the laws of such state and which denies creditors access to its courts in the absence of qualification to transact business in such state or of the filing of any reports with such state, unless the applicable Borrower has qualified as a foreign entity authorized to transact business in such state or has filed all required reports;
(xiii) the Account is subject to a Lien other than the Lien in favor of Lender and Liens expressly permitted by clauses (j) and (k) of Section 7.2;
(xiv) the goods giving rise to such Account have not been accepted by the Account Debtor or the Account otherwise does not represent a final sale;
(xv) the Account is evidenced by Chattel Paper or an Instrument of any kind, or has been reduced to judgment;
(xvi) the Account represents a progress billing or a retainage or arises from a sale on a cash-on-delivery basis;
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(xvii) the applicable Borrower has made any agreement with the Account Debtor for any deduction therefrom, except for discounts or allowances which are made in the Ordinary Course of Business of such Borrower for prompt payment and which discounts or allowances are reflected in the calculation of the face value of each invoice related to such Account;
(xviii) the applicable Borrower has made an agreement with the Account Debtor to extend the time of payment thereof beyond payment and due dates provided in clauses (ii) and (iii) above;
(xix) the Account Debtor has made a partial payment with respect to such Account; or
(xx) it arises from a retail sale of Inventory to a Person who is purchasing the same primarily for personal, family or household purposes.
"Eligible Export-Related Account" shall mean an Ex-Im Guaranteed Account of a Borrower (i) that constitutes an "Eligible Export-Related Accounts Receivable" under (and as defined in) the Ex-Im Borrower Agreement, (ii) that would constitute an Eligible Account hereunder but for clause (x) of the definition thereof, and (iii) for which Borrowers have provided to Lender the export order required under the Ex-Im Guarantee Documents.
"Eligible Export-Related Inventory" shall mean Ex-Im Guaranteed Inventory of a Borrower (i) that constitutes an "Eligible Export-Related Inventory" under (and as defined in) the Ex-Im Borrower Agreement, (ii) that constitutes Eligible Inventory hereunder, and (iii) for which Borrowers have provided to Lender the export order required under the Ex-Im Guarantee Documents. For purposes hereof, the amount of Eligible Export-Related Inventory at any time shall not exceed the total amount of Eligible Inventory multiplied by the Foreign Sales Ratio at such time.
"Eligible Inventory" shall mean Inventory owned by a Borrower, which is held for resale, and which Lender, in its discretion, deems to be Eligible Inventory. Without limiting the generality of the foregoing, no such Inventory shall be Eligible Inventory unless:
(i) it is Inventory in good, saleable condition and not defective;
(ii) it is finished goods, raw materials, or fermentation materials;
(iii) it is not held on consignment or other sale or return terms;
(iv) it is not slow-moving, obsolete, display items, packaging materials, labels or name plates or similar supplies;
(v) it meets all standards imposed by any Governmental Authority and has not been acquired from a Sanctioned Person;
(vi) it conforms in all respects to the warranties and representations set forth in this Agreement (including Section 4.18), the Security Agreement and any other Loan Document;
(vii) it is at all times subject to Lender's duly perfected, first priority security interest and is subject to no other Lien, adverse claim, interest or right of any Person other than Liens expressly permitted by clauses (j) and (k) of Section 7.2;
(viii) it is situated at a location in compliance with the Loan Agreement, is not in transit or outside the continental United States;
(ix) if such Inventory is located on any Property that is not owned by a Borrower, (a) the landlord, bailee, warehouseman or similar party that is, or may from time to time, be in possession of such Inventory shall have executed and delivered to Lender a Lien Waiver or (b) Lender has established an Availability Reserve with respect to such location, in each case at the option of Lender;
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(x) it is not subject to any licensing, patent, royalty, trademark, trade name or copyright agreement with any third party requiring the payment of royalties or fees or requiring the consent of the licensor for a sale or other disposition of the Inventory by Lender; and
(xi) it is not the subject of a negotiable warehouse receipt or other negotiable Document or under license to a third party.
“Eligible New Equipment” shall mean any Equipment acquired by Borrowers on or after the Closing Date which is in good order, repair, operating and marketable condition (ordinary wear and tear excepted) and which Lender, in its discretion, deems to be Eligible New Equipment. Without limiting the generality of the foregoing, Eligible New Equipment shall not include:
"Eligible Non-Export Accounts" shall mean Eligible Accounts that do not constitute Eligible Export-Related Accounts.
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"Eligible Non-Export Inventory" shall mean Eligible Inventory that does not constitute Eligible Export-Related Inventory. For purposes hereof, the amount of Eligible Non-Export Inventory at any time shall not exceed the total amount of Eligible Inventory minus the total amount of Eligible Export-Related Inventory.
"Environmental Laws" shall mean all applicable laws, rules, regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices or binding agreements issued, promulgated or entered into by or with any Governmental Authority, relating in any way to the environment, preservation or reclamation of natural resources, the management, Release or threatened Release of any Hazardous Material or to health and safety matters concerning exposure to Hazardous Materials.
"Environmental Liability" shall mean any liability, contingent or otherwise (including any liability for damages, costs of environmental investigation and remediation, costs of administrative oversight, fines, natural resource damages, penalties or indemnities), of any Borrower or any Subsidiary of a Borrower directly or indirectly resulting from or based upon (i) any actual or alleged violation of any Environmental Law, (ii) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (iii) any actual or alleged exposure to any Hazardous Materials, (iv) the Release or threatened Release of any Hazardous Materials or (v) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equipment Loan Advance Period” shall have the meaning given such term in Section 2.19(a).
“Equipment Loan Fee” shall have the meaning given such term in Section 2.19(f).
“Equipment Loan Interest Rate” shall mean, subject to the provisions of Section 2.19, a per annum rate equal to the sum of LMIR in effect from time to time, plus 2.75% or, if elected by Borrower pursuant to the applicable Equipment Loan Request or Notice of Conversion, a per annum rate equal to the sum of the Base Rate in effect from time to time plus 1.75%.
“Equipment Loan Limit” shall mean $1,000,000.
“Equipment Loan Note” shall mean each promissory note of Borrowers payable to the order of Lender in the principal amount of each Equipment Loan, in substantially the form of Exhibit C.
“Equipment Loan Request” shall have the meaning set forth in Section 2.19(d) hereof.
"Equipment Loans" shall mean the loans made by Lender in its sole discretion to Borrowers on or after the Closing Date as provided for in Section 2.19 hereof, which loans shall be fully secured by all Collateral; such loans being from time to time referred to herein individually as an "Equipment Loan".
"Equity Interests" shall mean all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other "equity security" (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute, and the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" shall mean any Person that for purposes of Title I or Title IV of ERISA or Section 412 of the Code would be deemed at any relevant time to be "a single employer" or otherwise
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aggregated with any Loan Party or any Subsidiary under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
"ERISA Event" shall mean (i) any "reportable event" as defined in Section 4043 of ERISA with respect to a Plan (other than an event as to which the PBGC has waived under subsection .22, .23, .25, .27 or .28 of PBGC Regulation Section 4043 the requirement of Section 4043(a) of ERISA that it be notified of such event); (ii) any failure to make a required contribution to any Plan that would result in the imposition of a Lien or other encumbrance or the provision of security under Section 430 of the Code or Section 303 or 4068 of ERISA, or the arising of such a Lien or encumbrance, there being or arising any "unpaid minimum required contribution" or "accumulated funding deficiency" (as defined or otherwise set forth in Section 4971 of the Code or Part 3 of Subtitle B of Title 1 of ERISA), whether or not waived, or any filing of any request for or receipt of a minimum funding waiver under Section 412 of the Code or Section 303 of ERISA with respect to any Plan or Multiemployer Plan, or that such filing may be made, or any determination that any Plan is, or is expected to be, in at-risk status under Title IV of ERISA; (iii) any incurrence by any Loan Party, any Subsidiary or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to any Plan or Multiemployer Plan (other than for premiums due and not delinquent under Section 4007 of ERISA); (iv) any institution of proceedings, or the occurrence of an event or condition which would reasonably be expected to constitute grounds for the institution of proceedings by the PBGC, under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan; (v) any incurrence by any Loan Party, any Subsidiary or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan, or the receipt by any Loan Party, any Subsidiary or any of their respective ERISA Affiliates of any notice that a Multiemployer Plan is in endangered or critical status under Section 305 of ERISA; (vi) any receipt by any Loan Party, any Subsidiary or any of their respective ERISA Affiliates of any notice, or any receipt by any Multiemployer Plan from any Loan Party, any Subsidiary or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA; (vii) engaging in a non-exempt prohibited transaction within the meaning of Section 4975 of the Code or Section 406 of ERISA; or (viii) any filing of a notice of intent to terminate any Plan if such termination would require material additional contributions in order to be considered a standard termination within the meaning of Section 4041(b) of ERISA, any filing under Section 4041(c) of ERISA of a notice of intent to terminate any Plan, or the termination of any Plan under Section 4041(c) of ERISA.
"Event of Default" shall mean any of the events specified in Section 8.1.
"Excess Availability" shall mean on any determination date, an amount equal to Availability on such date minus the Revolving Credit Exposure on such date. If the amount of the Revolving Credit Exposure is greater than Availability on any date, Excess Availability is zero.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended and in effect from time to time.
"Excluded Deposit Accounts" shall mean the deposit accounts designated as "Excluded Deposit Accounts" on Schedule 5.11.
"Excluded Subsidiary" shall mean Danimer Scientific Manufacturing, Inc., a Delaware corporation and wholly-owned subsidiary of Parent, and any other Subsidiary of a Loan Party which Lender consents in writing to be an Excluded Subsidiary.
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"Excluded Subsidiary NMTC Transaction" shall mean the New Market Tax Credit transaction entered into by Danimer Scientific Manufacturing, Inc., a Delaware corporation, on or about April 25, 2019, which provided for leverage loans to Danimer Scientific Manufacturing, Inc. in the aggregate original principal amount of $9,000,000 and which is guaranteed by Parent and for which Parent acts as the leverage lender.
"Excluded Swap Obligation" shall mean, with respect to any Guarantor at any time, any Swap Obligation, if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an "eligible contract participant," as defined in the Commodity Exchange Act (determined after giving effect to any "Keepwell", support or other agreement for the benefit of such Guarantor, at the time such Guarantee or grant of a security interest becomes effective with respect to such related Swap Obligation). If a Swap Obligation arises under a Master Agreement governing more than one Hedging Transaction, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Hedging Transactions that are or would be rendered illegal due to such guarantee or security interest.
"Excluded Taxes" shall mean any of the following Taxes imposed on or with respect to Lender or any other recipient of any payment to be made by or on account of any obligation of Borrowers hereunder, (i) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (x) imposed as a result of any such recipient being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (y) that are imposed as a result of a present or former connection between Lender and the jurisdiction imposing such taxes (other than connections arising from having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document), and (ii) any U.S. federal withholding Taxes imposed under FATCA.
"Ex-Im Application" shall mean the Application for Export Working Capital Guarantee executed and delivered by Borrowers and Lender to the Ex-Im Bank on or about the Closing Date.
"Ex-Im Availability Block" shall mean $1,000,000.
"Ex-Im Bank" shall mean the Export-Import Bank of the United States.
"Ex-Im Borrower Agreement" shall mean the Borrower Agreement dated on or about the date hereof executed by Borrowers in favor of Lender and Ex-Im Bank and acknowledged by Lender.
"Ex-Im Borrowing Base" shall mean on any date of determination, an amount equal to the sum of (i) up to 90% (or such lesser percentage as Lender may determine from time to time in its discretion) of the total amount of Eligible Export-Related Accounts; plus (ii) the lesser of (A) 300% of the amount determined pursuant to clause (i) of this definition at any time and (B) the product of (1) up to 75% (or such lesser percentage as Lender may determine from time to time in its discretion) of Eligible Export-Related Inventory, stated at the lower of cost and market, minus (iii) at all times prior to the Covenant Election Date, the Ex-Im Availability Block, minus (iv) the portion of the Availability Reserve attributable to Eligible Export-Related Inventory and Eligible Export-Related Accounts or otherwise solely related to the Ex-Im facility evidenced by this Agreement on such date.
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"Ex-Im Guarantee Agreement" shall mean that certain Master Guarantee between Lender and Ex-Im Bank with respect to Ex-Im Bank's guarantee to Lender for certain amounts disbursed with respect to this Agreement.
"Ex-Im Guarantee Documents" shall mean, collectively, the Ex-Im Guarantee Agreement, the Ex-Im Application, the Ex-Im Borrower Agreement, the Ex-Im Credit Agreement and the Loan Authorization Notice and Economic Impact Certification entered into in connection therewith, and such other agreements, instruments and documents required by Lender or Ex-Im Bank in connection with the working capital guarantee program provided by Ex-Im Bank, including those related to Lender's delegated authority under such program.
"Ex-Im Guaranteed Account" shall mean an Account which is guaranteed by the Ex-Im Bank in favor of Lender pursuant to the Ex-Im Guarantee Documents.
"Ex-Im Guaranteed Inventory" shall mean Inventory which is guaranteed by the Ex-Im Bank in favor of Lender pursuant to the Ex-Im Guarantee Documents.
"Ex-Im Out-of-Formula Condition" shall have the meaning set forth in Section 2.1(c)(ii).
"Ex-Im Revolving Commitment" shall mean the obligation of Lender to make Ex-Im Revolving Loans to Borrowers in an aggregate principal amount, subject to Section 2.3, not exceeding $5,000,000.
"Ex-Im Revolving Credit Exposure" shall mean, on any date, the sum of the outstanding Ex-Im Revolving Loans.
"Ex-Im Revolving Loan" shall mean a loan made by Lender under the Ex-Im Revolving Commitment pursuant to Section 2.1(a)(ii).
"Ex-Im Revolving Note" shall mean a promissory note of Borrowers payable to the order of Lender in the principal amount of the Ex-Im Revolving Commitment, in substantially the form of Exhibit B.
"Export Order" shall have the meaning given such term in the Ex-Im Borrower Agreement.
"Extraordinary Expenses" shall mean all costs, expenses or advances that Lender may incur during a Default or Event of Default, or during the pendency of an Insolvency Proceeding of an Loan Party, including those relating to (a) any audit, inspection, repossession, storage, repair, appraisal, insurance, manufacture, preparation or advertising for sale, sale, collection, or other preservation of or realization upon any Collateral; (b) any action, arbitration or other proceeding (whether instituted by or against Lender, any Loan Party, any representative of creditors of an Loan Party or any other Person) in any way relating to any Collateral (including the validity, perfection, priority or avoidability of Lender's Liens with respect to any Collateral), Loan Documents, Letters of Credit or Obligations, including any lender liability or other Claims; (c) the exercise of any rights or remedies of Lender in, or the monitoring of, any Insolvency Proceeding; (d) settlement or satisfaction of taxes, charges or Liens with respect to any Collateral; (e) any enforcement action; and (f) negotiation and documentation of any modification, waiver, workout, restructuring or forbearance with respect to any Loan Documents or Obligations. Such costs, expenses and advances include transfer fees, Other Taxes, storage fees, insurance costs, permit fees, utility reservation and standby fees, legal fees, appraisal fees, brokers' and auctioneers' fees and commissions, accountants' fees, environmental study fees, wages and salaries paid to employees of any Loan Party or independent contractors in liquidating any Collateral, and travel expenses.
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"Facility" shall mean those certain parcels of real property together with improvements thereon located at (i) 1301 Colquitt Drive, Bainbridge, Georgia, which is operated by and owned in fee by DBP, (ii) 140 Industrial Boulevard, Bainbridge, Georgia, which is occupied by all Loan Parties other than DBP pursuant to a lease in favor of Parent and a sublease in favor of such Loan Parties and which is subject to the Permitted Sale-Leaseback, and (iii) 605 Rolling Hills Lane, 361 Rolling Hills Lane, 418 Winchester Soccer Road, and 246 Winchester Soccer Road, Winchester, Kentucky, which are occupied by DSK pursuant to a lease in favor of Parent and a sublease in favor of Danimer Kentucky, and which is subject to the Permitted Sale-Leaseback and the Kentucky IRB.
"FATCA" shall mean 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), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.
"Federal Funds Rate" shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with member banks of the Federal Reserve System, as published by the Federal Reserve Bank of New York on the next succeeding Business Day or if such rate is not so published for any Business Day, the Federal Funds Rate for such day shall be the average (rounded upwards, if necessary, to the next 1/100th of 1%) of the quotations for such day on such transactions received by Lender from three Federal funds brokers of recognized standing selected by Lender.
"Floor" shall mean zero percent (0%) per annum.
"Fiscal Month" shall mean any fiscal month of the Loan Parties.
"Fiscal Quarter" shall mean any fiscal quarter of the Loan Parties.
"Fiscal Year" shall mean the fiscal year of the Loan Parties for accounting and tax purposes.
"FLSA" shall mean the Fair Labor Standards Act of 1938.
"Foreign Plan" shall mean any employee benefit plan or arrangement (i) maintained or contributed to by any Loan Party or Subsidiary that is not subject to the laws of the United States; or (ii) mandated by a government other than the United States for employees of any Loan Party or Subsidiary.
"Foreign Sales Ratio" shall mean, at any time, a ratio equal to (i) Borrowers’ sales of Eligible Inventory to Account Debtors outside of the United States to (ii) Borrowers’ total sales of Eligible Inventory, in each case, tested for the period of twelve (12) Fiscal Months most recently ended on the date of the most recent field examination conducted by Lender.
"Foreign Subsidiary" shall mean any Subsidiary that is not a Domestic Subsidiary.
"Full Payment" shall mean, with respect to any Obligations, (i) the full and indefeasible cash payment thereof, including any interest, fees and other charges accruing during an Insolvency Proceeding (whether or not allowed in such proceeding); (ii) if such Obligations arise from LC Disbursements or are inchoate or contingent in nature, Cash Collateralization thereof (or delivery of a standby letter of credit acceptable to Lender in its discretion, in the amount of required Cash Collateral); and (iii) a release of any claims of Loan Parties against Lender arising on or before the payment date. No Loans shall be deemed to have been paid in full unless all Commitments related to such Loans are terminated.
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"GAAP" shall mean generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.2.
"Governmental Authority" shall mean the government of the United States of America 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.
"Guarantee" of or by any Person (the "guarantor") shall mean any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the "primary obligor") in any manner, whether directly or indirectly and including any obligation, direct or indirect, of the guarantor (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (ii) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (iv) as an account party in respect of any letter of credit or letter of guaranty issued in support of such Indebtedness or obligation; provided, that the term "Guarantee" shall not include endorsements for collection or deposits in the Ordinary Course of Business of such Person. The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made or, if not so stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith. The term "Guarantee" used as a verb has a corresponding meaning.
"Guarantor" shall mean, collectively, (i) each Borrower with respect to any Hedging Obligations between any Loan Party and Lender or any Affiliate of Lender, (ii) each Loan Party with respect to any Bank Product Obligations owing by any Loan Party, (iii) each Qualified ECP with respect to the payment and performance by each Specified Loan Party of its obligations under its Guarantee with respect to all Swap Obligations, and (iv) PubCo, Parent, and each other Person who now or hereafter guarantees payment or performance of any Obligations, any of the Advantage Subordinated Debt, or any of the Kentucky NMTC Subordinated Debt.
"Guaranty Agreement" shall mean each guaranty agreement, in form and substance satisfactory to Lender, made by a Guarantor in favor of Lender, pursuant to which such Guarantor Guarantees the payment and performance of the Obligations.
"Guarantor Payment" shall have the meaning set forth in Section 2.17(c)(ii).
“Hard Costs" shall mean, with respect to the purchase by any Borrower of an item of Eligible New Equipment, the net cash amount actually paid to acquire title to such item, net of all incentives, trade in allowances, discounts and rebates, and exclusive of freight, delivery charges, installation costs and charges, software costs, charges and fees, warranty costs, taxes, insurance and other incidental costs or expenses and all indirect costs or expenses of any kind.
"Hazardous Materials" shall mean 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.
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"Hedge Termination Value" shall mean, in respect of any one or more Hedging Transactions, after taking into account the effect of any legally enforceable netting agreement relating to such Hedging Transactions, (i) for any date on or after the date such Hedging Transactions have been closed out and termination value(s) determined in accordance therewith, such termination value(s) and (ii) for any date prior to the date referenced in clause (i), the amount(s) determined as the mark-to-market value(s) for such Hedging Transactions, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Hedging Transactions (which may include Lender or any Affiliate of Lender).
"Hedging Obligations" shall mean any and all obligations of a Person, whether absolute or contingent and howsoever and whensoever created, arising, evidenced or acquired under (i) any and all Hedging Transactions, (ii) any and all cancellations, buy backs, reversals, terminations or assignments of any Hedging Transactions and (iii) any and all renewals, extensions and modifications of any Hedging Transactions and any and all substitutions for any Hedging Transactions.
"Hedging Transaction" shall mean (i) any transaction (including an agreement with respect to any such transaction) now existing or hereafter entered into by a Person that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, spot transaction, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, or any other similar transaction (including any option with respect to any of these transactions) or any combination thereof, whether or not any such transaction is governed by or subject to any Master Agreement and (ii) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any Master Agreement, including any such obligations or liabilities under any Master Agreement.
"Indebtedness" shall mean, without duplication (i) all obligations of a Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (iii) all obligations of such Person in respect of the deferred purchase price of property or services (other than liabilities or obligations under the Management Services Agreement and unsecured trade payables incurred in the Ordinary Course of Business of such Person; provided, that for purposes of Section 8.1(f), trade payables overdue more than ninety (90) days shall be included in this definition except to the extent the same are being disputed in good faith by appropriate measures), (iv) all obligations of such Person under any conditional sale or other title retention agreement(s) relating to Property acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations, contingent or otherwise, of such Person in respect of letters of credit, acceptances, bank guarantees, surety bonds, or similar extensions of credit, (vii) all Guarantees of such Person of the type of Indebtedness described in clauses (i) through (vi) above, (viii) all Indebtedness of a third party secured by any Lien on Property owned by such Person, whether or not such Indebtedness has been assumed by such Person, (ix) all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any common stock of such Person, (x) Off-Balance Sheet Liabilities, (xi) all net Hedging Obligations, and (xii) the then-outstanding amount of withdrawal or termination liability incurred under ERISA. The Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer, except to the extent that the terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" shall mean (i) Taxes other than Excluded Taxes imposed on or with respect to any payment made by or on account of any obligation of Loan Parties under any of the Loan Documents and (ii) to the extent not otherwise described in (i), Other Taxes.
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"Indemnitee" shall have the meaning set forth in Section 9.3(b).
"Insolvency Proceeding" shall mean a bankruptcy, receivership, assignment for the benefit of creditors, debt adjustment, liquidation, dissolution, administration or any other insolvency case or proceeding under any applicable law.
"Intellectual Property" shall mean all intellectual and similar Property of a Person, including inventions, designs, patents, copyrights, trademarks, service marks, trade names, trade secrets, confidential or proprietary information, customer lists, know-how, software and databases; all embodiments or fixations thereof and all related documentation, applications, registrations and franchises; all licenses or other rights to use any of the foregoing; and all books and records relating to the foregoing.
"Intercompany Debt" shall mean Indebtedness owing from (i) any Loan Party to (ii) any other Loan Party or any Subsidiary (including an Excluded Subsidiary), which shall constitute Subordinated Debt hereunder.
"Interest Period" shall mean a period of one (1) month, provided that (i) the initial Interest Period may be less than one month, depending on the initial funding date and (ii) no Interest Period shall extend beyond the Commitment Termination Date.
"Interest Rate Determination Date" shall mean the date a LMIR Loan is funded on the Closing Date and the first Business Day of each calendar month thereafter.
"Inventory Formula Amount" shall mean on any date of determination thereof, an amount equal to the lesser of (i) the sum of the following (in each case stated at the lower of cost or market, with the cost thereof calculated on an average cost basis, as determined in accordance with GAAP, in each case, or such lesser percentage as Lender may determine from time to time in its discretion): (a) up to 50% of Eligible Non-Export Inventory consisting of finished goods, (b) up to 9% of Eligible Non-Export Inventory consisting of fermentation materials, (c) up to 47% of Eligible Non-Export Inventory consisting of resin raw materials of a type not otherwise described herein, and (d) up to 30% of other Eligible Non-Export Inventory consistent with the results of the most recent field examination; and (ii) $5,000,000.
"Investment" shall have the meaning set forth in Section 7.4.
"IRS" shall mean the United States Internal Revenue Service.
"ISDA Definitions" shall mean the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.
"Kentucky IRB" shall mean the up to $135,000,000 City Of Winchester, Kentucky, industrial revenue bonds of DSK evidenced by, among other things, (a) that certain Bond Purchase Agreement among City of Winchester, Kentucky, Parent, as Servicing Agent, DSK and Parent., as Purchaser, with respect to up to $135,000,000, City Of Winchester, Kentucky, Industrial Building Revenue Bonds, Series 2020B (Danimer Scientific Kentucky Project) dated as of December 30, 2020; (b) that certain Bond Purchase Agreement among City of Winchester, Kentucky, Parent, as Servicing Agent, DSK and Parent., as Purchasers, with respect to up to $135,000,000, City of Winchester, Kentucky, Industrial Building Revenue Bonds, Series 2020A (Danimer Scientific Kentucky Project) dated as of December 30, 2020; (c) that certain Bill of Sale dated as of December 30, 2020 made by DSK to the City of Winchester, Kentucky, a municipal corporation and political subdivision of the Commonwealth of Kentucky having a mailing address of P.O.
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Box 40, 32 Wall Street, Winchester, Clark County, Kentucky 40392-0040; (d) the Kentucky IRB Lease Agreement and related assignment of the lease; and (e) each other document, instrument or agreement executed and delivered in connection therewith.
"Kentucky IRB Lease Agreement" shall mean that certain Lease Agreement between City of Winchester, Kentucky, and DSK with respect to up to $135,000,000 City Of Winchester, Kentucky, Industrial Building Revenue Bonds, Series 2020B (Danimer Scientific Kentucky Project) dated as of December 30, 2020, which interests of The City Of Winchester, Kentucky in such Lease Agreement have been assigned to Meredian Holdings Group, Inc.
"Kentucky NMTC Deposit Accounts" shall mean each "Disbursement Account" as defined in the Kentucky QLICI Loan Agreement, and the Brownfield, Consortium, and AMCREF reserve accounts under the Kentucky QLICI Loan Agreement, each of which are identified on Schedule 5.11.
"Kentucky NMTC Documents" shall mean, collectively, (i) the Kentucky QLICI Loan Agreement, (ii) that certain Fund Loan Agreement dated November 7, 2019, between Twain Investment Fund 427, LLC, a Missouri limited liability, as the fund borrower, and Holdings, as the fund lender, related to the state leverage loan, (iii) that certain Twain Investment Fund 428, LLC, a Missouri limited liability company, as the fund borrower, Holdings, as the Danimer fund lender, Brownfield Revitalization 60, LLC, a Delaware limited liability company, as the Brownfield fund lender, and Consortium America 79, LLC, a Delaware limited liability company, as the consortium fund lender, related to the federal leverage loan, and (iv) all promissory notes, guaranties, pledge agreements, and other documents, instruments, and agreements evidencing or related to the Kentucky NMTC Subordinated Debt (in each case, as amended on or before the Closing Date and as at any other time amended, restated, supplemented, refinanced, replaced or otherwise modified to the extent permitted by the terms of the Subordination Agreement (Kentucky NMTC)).
"Kentucky NMTC Lender" shall mean AmCREF Fund 51, LLC, a Louisiana limited liability company.
"Kentucky NMTC Subordinated Debt" shall mean Indebtedness owing from DSK to the Kentucky NMTC Lender pursuant to the Kentucky NMTC Documents in the aggregate principal amount not to exceed $12,000,000, in connection with a New Markets Tax Credit transaction and which shall constitute Subordinated Debt hereunder.
"Kentucky NMTC Transaction" shall mean the new market tax credit transaction evidenced by the Kentucky NMTC Documents.
"Kentucky QLICI Loan Agreement" shall mean that certain QLICI Loan and Security Agreement dated as of November 7, 2019, by and between DSK and the Kentucky NMTC Lender.
"LC Commitment" shall mean that portion of the Revolving Commitment that may be used by Borrowers for the issuance of Letters of Credit in an aggregate face amount not to exceed $5,000,000.
"LC Disbursement" shall mean a payment made by Lender pursuant to a Letter of Credit.
"LC Documents" shall mean all applications, agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the aggregate amount of all LC Disbursements that have
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not been reimbursed by or on behalf of Borrowers at such time. Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided, that with respect to any Letter of Credit that, by its terms or any document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.
"Letter of Credit" shall mean any letter of credit issued pursuant to Section 2.15 by Lender for the account of Borrowers pursuant to the LC Commitment.
"LIBOR" shall mean the London interbank offered rate for U.S. dollar-denominated syndicated or bilateral credit facilities.
"Lien" shall mean any mortgage, pledge, security interest, lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment, deposit arrangement, or other arrangement having the practical effect of the foregoing or any preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement and any capital lease having the same economic effect as any of the foregoing).
"Lien Waiver" shall mean the waiver or subordination of Liens satisfactory to Lender from a lessor, mortgagee, warehouse operator, processor or other third party that may have a Lien upon any Collateral that is in such third party’s possession or is located or leased by such party to a Loan Party, by which such Person shall waive or subordinate its Liens and claims with respect to any Collateral in favor of Lender and shall assure Lender’s access to any Collateral for the purpose of allowing Lender to enforce its rights and Liens with respect thereto.
"LMIR" shall mean that rate per annum effective on any Interest Rate Determination Date which is equal to the quotient of:
(i) the rate per annum equal to LIBOR for deposits in U.S. dollars for a one (1) month period, which rate appears on that page of Reuters reporting service, or such similar service as determined by Lender, as of the Reference Time; provided, that if no such offered rate appears on such page, the rate used for such Interest Period will be the per annum rate of interest determined by Lender to be the rate at which U.S. dollar deposits for the Interest Period, are offered to Lender in the London interbank market as of the Reference Time, divided by
(ii) a percentage equal to 1.00 minus the maximum reserve percentages (including any emergency, supplemental, special or other marginal reserves) expressed as a decimal (rounded upward to the next 1/100th of 1%) in effect on any day to which Lender is subject with respect to any LMIR Loan pursuant to regulations issued by the Board of Governors of the Federal Reserve System with respect to eurocurrency funding (currently referred to as "eurocurrency liabilities" under Regulation D). This percentage will be adjusted automatically on and as of the effective date of any change in any reserve percentage.
"LMIR Loan" shall mean any Loan bearing interest at a rate based upon LMIR in effect from time to time.
"Loan Documents" shall mean, collectively, this Agreement, the Notes, the LC Documents, each Notice of Revolving Borrowing, each Guaranty Agreement, the Security Agreement, the Collateral Assignment of Business Interruption Insurance, each Subordination Agreement, each Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, each Deposit Account Control
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Agreement, each Lien Waiver, each Borrowing Base Certificate, each Compliance Certificate, any pledge agreement, any other intercreditor agreement and any and all other instruments, agreements, documents and writings heretofore or hereafter executed in connection with any of the foregoing or any transaction relating hereto.
"Loan Parties" shall mean Borrowers and Guarantors (other than, solely for purposes of the grant of any security interest or Lien in favor of Lender, PubCo and Parent).
"Loans" shall mean all Revolving Loans and Equipment Loans (if any) in the aggregate or any of them, as the context shall require.
"Loss" shall mean, with respect to any Property, (i) the loss, theft, damage, or destruction thereof or other casualty with respect thereto or (ii) the condemnation or taking by eminent domain thereof by any Governmental Authority.
"Management Fees" shall mean all management, service and administrative fees owing from Borrowers to Manager from time to time under the Management Services Agreement as in effect on the Closing Date.
"Management Services Agreement" shall mean that certain Management Services Agreement dated as of March 13, 2019, by and between Manager and Holdings, as amended by that certain First Amendment to Management Agreement dated as of November 5, 2019 (as amended on or before the Closing Date and as at any other time amended, restated, supplemented, refinanced, replaced or otherwise modified to the extent not prohibited by Section 4.13 hereof.
"Manager" shall mean Meredian Holdings Group, Inc., a Delaware corporation, in its capacity as manager under the Management Services Agreement.
"Master Agreement" shall mean 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, together with any related schedules.
"Material Adverse Effect" shall mean, with respect to any event, act, condition or occurrence of whatever nature (including any adverse determination in any litigation, arbitration, or governmental investigation or proceeding), whether singly or in conjunction with any other event or events, act or acts, condition or conditions, occurrence or occurrences whether or not related, a material adverse change in, or a material adverse effect on, (i) the business, results of operations, financial condition, assets or liabilities of any Loan Party or of Loan Parties and their Subsidiaries, (ii) the ability of any Loan Party to perform any of its obligations under the Loan Documents, (iii) the rights and remedies of Lender under any of the Loan Documents or (iv) the legality, validity or enforceability of any of the Loan Documents.
"Material Agreement" shall mean any agreement or arrangement to which a Loan Party or Subsidiary is party (other than the Loan Documents) (i) that is deemed to be a material contract under any securities law applicable to such Person, including the Securities Act of 1933; (ii) for which breach, termination, nonperformance or failure to renew could reasonably be expected to have a Material Adverse Effect; (iii) that relates or evidences any Material Indebtedness; (iv) that relates to or evidences any Subordinated Debt; or (v) that is (x) a material customer agreement of any Loan Party relating to $500,000 or more of Borrowers’ assets included in the Borrowing Base or (y) a supply agreement of any Loan Party the expiration, termination or other loss of which could have a Material Adverse Effect.
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"Material Indebtedness" shall mean (i) the Advantage Subordinated Debt, (ii) the Kentucky NMTC Subordinated Debt and (iii) any other (x) Indebtedness (other than the Loans and Letters of Credit) or (y) obligations in respect of one or more Hedging Transactions, in each case, of any one or more Loan Parties or any of their Subsidiaries in a principal amount exceeding $500,000. For purposes of determining Material Indebtedness, the "principal amount" of the obligations of any Loan Party or any Subsidiary thereof in respect to any Hedging Transaction at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that such Loan Party or such Subsidiary would be required to pay if such Hedging Transaction were terminated at such time.
"Maximum Rate" shall have the meaning set forth in Section 9.12.
"Moody's" shall mean Moody's Investors Service, Inc.
"Multiemployer Plan" shall mean any "multiemployer plan" as defined in Section 4001(a)(3) of ERISA, which is contributed to by (or to which there is or may be an obligation to contribute of) any Loan Party, any Subsidiary or an ERISA Affiliate, and each such plan for the five-year period immediately following the latest date on which any Loan Party, any Subsidiary or an ERISA Affiliate contributed to or had an obligation to contribute to such plan.
"Net Proceeds (Asset Sales)" shall mean, in connection with any Asset Disposition, the difference between (i) the aggregate amount of cash or cash equivalents received by a Borrower or Subsidiary of a Borrower in connection with such Asset Disposition and (ii) all reasonable and customary costs and expenses actually incurred in connection with such Asset Disposition.
"Net Proceeds (Loss)" shall mean, in connection with the receipt by a Borrower or Subsidiary of a Borrower, or by Lender as lender’s loss payee as provided in Section 5.8, of any cash proceeds in connection with any Loss (including proceeds of insurance paid with respect to or awards or compensation arising from any Loss), the aggregate amount of cash or cash equivalents received by such Borrower or Subsidiary of a Borrower or Lender in connection with such Loss.
"Notes" shall mean, collectively, the Revolving Credit Note, each Equipment Loan Note (if any), and any other promissory note evidencing any of the Obligations.
"Notice of Conversion" shall have the meaning as set forth in Section 2.7(e).
"Notice of Revolving Borrowing" shall have the meaning as set forth in Section 2.2.
"Obligations" shall mean (i) all Loans, LC Exposure and other amounts owing by any or all Loan Parties to Lender or any of Lender's Affiliates pursuant to or in connection with this Agreement or any other Loan Document or otherwise, including all principal, interest (including any interest accruing after the filing of any petition in bankruptcy or the commencement of any Insolvency Proceeding relating to any Loan Party, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and reimbursement payments costs and expenses (including all fees and expenses of counsel to Lender incurred pursuant to this Agreement or any other Loan Document), whether direct or indirect, absolute or contingent, liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder, and all obligations and liabilities incurred in connection with collecting and enforcing the foregoing, (ii) all Bank Product Obligations, and (iii) all Hedging Obligations owed by any Loan Party to Lender or any Affiliate of Lender, together with all renewals, extensions, modifications or refinancings of any of the foregoing; provided, that "Obligations" of a Loan Party shall exclude any Excluded Swap Obligations of such Loan Party.
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"OFAC" shall mean the U.S. Department of the Treasury's Office of Foreign Assets Control.
"Off-Balance Sheet Liabilities" shall mean (i) any repurchase obligation or liability of a Person with respect to accounts or notes receivable sold by such Person, (ii) any liability of such Person under any sale and leaseback transactions which do not create a liability on the balance sheet of such Person, (iii) any liability of such Person under any so-called "synthetic" lease transaction or (iv) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheet of such Person.
"Ordinary Course of Business" shall mean, with respect to any Person, the ordinary course of such Person’s business, as conducted by such Person in accordance with past practices and undertaken by such Person in good faith and not for the purpose of evading any covenant or restriction in any Loan Document.
"Other Taxes" shall mean any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.
"Out-of-Formula Condition" shall have the meaning set forth in Section 2.1(c)(ii).
"Out-of-Formula Loan" shall mean a Revolving Loan made or existing when an Out-of-Formula Condition exists or the amount of any Revolving Loan which, when funded, results in an Out-of-Formula Condition.
"Parent Company" shall mean with respect to Lender, the "bank holding company" as defined in Regulation Y, if any, of Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the shares of Lender.
"Parent" shall mean Meredian Holdings Group, Inc., a Delaware corporation.
"Participant" shall have the meaning set forth in Section 9.4(c).
"Patent Security Agreement" shall mean the Patent Security Agreement executed by certain Loan Parties in favor of Lender on the Closing Date and each other patent security agreement at any time executed by a Loan Party in favor of Lender in connection herewith.
"Patriot Act" shall mean the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended and in effect from time to time.
"Payment Office" shall mean the office of Lender located at 3333 Peachtree Road, N.E., 4th Floor, Atlanta, Georgia 30326, or such other location as to which Lender shall have given written notice to Borrower Agent.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA, and any successor entity performing similar functions.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States (or by any agency thereof to the extent such obligations
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are backed by the full faith and credit of the United States), in each case maturing within one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of acquisition thereof, of S&P or Moody's and in either case maturing within six (6) months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits maturing within 180 days of the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States or any state thereof which has a combined capital and surplus and undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria described in clause (iii) above;
(v) shares of any money market fund that has substantially all of its assets invested continuously in the types of investments referred to in clauses (i) through (iv) immediately above, has net assets of at least $500,000,000 and has the highest rating obtainable from either Moody's or S&P. and
(vi) mutual funds investing solely in any one or more of the Permitted Investments described in clauses (i) through (v) above.
"Permitted Liens" shall have the meaning given such term in Section 7.2 hereof.
"Permitted Purchase Money Debt" shall mean Purchase Money Debt of the Loan Parties that is unsecured or secured only by a Purchase Money Lien, as long as the aggregate amount does not exceed $2,500,000 at any time.
"Permitted Refinancing" shall mean extensions, renewals and replacements of any Indebtedness that do not increase the outstanding principal amount thereof (immediately prior to giving effect to such extension, renewal or replacement) or shorten the maturity or the weighted average life thereof.
"Permitted Sale-Leaseback" shall mean the transaction or series of transactions pursuant to which (i) Alltech, Inc., as seller, and Parent, as purchaser, entered into that certain Purchase and Sale Agreement and Joint Escrow Instructions, dated as of August 2, 2018, for the purchase and sale of certain real property located in Winchester, Kentucky, at 605 Rolling Hills Lane, 361 Rolling Hills Lane, 418 Winchester Soccer Road, and 246 Winchester Soccer Road, respectively (the “Kentucky PSA”), (ii) Parent and MBP, collectively as seller, and STORE Capital Acquisitions, LLC, a Delaware limited liability company (“STORE Capital”), as purchaser, entered into that certain Purchase and Sale Agreement, dated as of November 20, 2018, for the purchase and sale of certain real property located at 140 Industrial Boulevard, Bainbridge, Georgia (the “Georgia PSA”), (iii) Parent designated STORE Capital as its designee for the purposes of taking title to the real property under the Kentucky PSA, and (iv) STORE Capital and Parent entered into that certain Amended and Restated Master Lease, dated May 29, 2020, pursuant to which Parent leases the properties currently owned by STORE Capital pursuant to the Kentucky PSA and the Georgia PSA, as the foregoing transactions may be amended, restated, supplemented, or otherwise modified from time to time so long as such transactions relate only to Real Estate and not any personal Property of any Loan Party.
"Permitted Tax Distributions" shall mean, with respect to a Borrower so long as it is taxable as a partnership or disregarded entity for United States federal income tax purposes, tax distributions to the
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owners of Equity Interests in such Borrower (its "shareholders") in an aggregate amount that does not exceed, with respect to any period, an amount equal to (i) the Applicable Tax Amount minus (ii) to the extent not previously taken into account, any income tax benefit attributable to such Borrower which could be utilized by its shareholders, in the current or any prior year, or portion thereof, from and after the Closing Date (including any tax losses or tax credits).
"Person" shall mean any individual, partnership, firm, corporation, association, joint venture, limited liability company, trust or other entity, or any Governmental Authority.
"Plan" shall mean any "employee benefit plan" as defined in Section 3 of ERISA (other than a Multiemployer Plan) maintained or contributed to by any Loan Party or any ERISA Affiliate or to which any Loan Party or any ERISA Affiliate has or may have an obligation to contribute, and each such plan that is subject to Title IV of ERISA for the five-year period immediately following the latest date on which any Loan Party or any ERISA Affiliate maintained, contributed to or had an obligation to contribute to (or is deemed under Section 4069 of ERISA to have maintained or contributed to or to have had an obligation to contribute to, or otherwise to have liability with respect to) such plan.
"Projections" shall mean projections of PubCo, Parent and Borrowers’ consolidated and consolidating financial condition, results of operations, cash flow, operating budget and Availability (to include balance sheets, income statements and statements of cash flows), prepared on a month-to-month basis for the applicable Fiscal Year pursuant to and as required by Section 5.1(i) hereof.
"Properly Contested" shall mean, in the case of any Indebtedness of a Loan Party or any Taxes of a Loan Party, in each case, that is not paid as and when due or payable by reason of such Loan Party's bona fide dispute concerning its liability to pay same or concerning the amount thereof, (i) such Indebtedness is being properly contested in good faith by appropriate proceedings promptly instituted and diligently conducted; (ii) such Loan Party has established appropriate reserves as shall be required in conformity with GAAP; (iii) the non-payment of such Indebtedness is not reasonably expected to have a Material Adverse Effect; (iv) no Lien is imposed upon any of such Loan Party’s Property with respect to such Indebtedness unless such Lien is at all times subordinate in priority to the Liens of Lender (except only with respect to property taxes that have priority as a matter of applicable state law) and enforcement of such Lien is stayed during the period prior to the final resolution or disposition of such dispute; (v) if the Indebtedness results from, or is determined by the entry, rendition or issuance against a Loan Party or any of its Property of, a judgment, the enforcement of such judgment is stayed pending a timely appeal or other judicial review; and (vi) if such contest is abandoned, settled or determined adversely (in whole or in part) to such Loan Party, such Loan Party forthwith pays such Indebtedness and all penalties, interest and other amounts due in connection therewith.
"Property" shall mean any interest in any kind of property or asset, whether real, personal, or mixed or tangible or intangible.
"PubCo" shall mean Danimer Scientific, Inc., a Delaware corporation and parent company of Parent (formerly known as Live Oak Acquisition Corp.).
"Purchase Money Debt" shall mean (i) Indebtedness (other than the Obligations) for payment of any of the purchase price of fixed assets; (ii) Indebtedness (other than the Obligations) incurred within ten (10) days before or after acquisition of any fixed assets, for the purpose of financing any of the purchase price thereof; (iii) Capital Lease Obligations; and (iv) any renewals, extensions or refinancings (but not increases) thereof.
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"Purchase Money Lien" shall mean a Lien that secures Purchase Money Debt, encumbering only the fixed assets acquired with such Indebtedness and constituting a capital lease or a purchase money security interest under the UCC.
"Qualified ECP" shall mean a Loan Party with total assets exceeding $10,000,000, or that constitutes an "eligible contract participant" under the Commodity Exchange Act and can cause another Person to qualify as an "eligible contract participant" under Section 1a(18)(A)(v)(II) of such act.
"RCRA" shall mean the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., as same may be amended from time to time.
"Real Estate" shall mean all real property owned or leased by each Loan Party and its Subsidiaries.
"Reference Time" with respect to any setting of the then-current Benchmark shall mean (1) if such Benchmark is LMIR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not LMIR, the time determined by Lender in its reasonable discretion.
"Regulation D" shall mean Regulation D of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
"Regulation T, U or X" shall mean each of Regulation T, U or X of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
"Regulation Y" shall mean Regulation Y of the Board of Governors of the Federal Reserve System, as the same may be in effect from time to time, and any successor regulations.
"Reimbursement Date" shall have the meaning set forth in Section 2.15(e).
"Related Parties" shall mean, with respect to any specified Person, such Person's Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person's Affiliates.
"Release" shall mean any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater, land surface or subsurface strata) or within any building, structure, facility or fixture.
"Relevant Governmental Body" shall mean the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
"Responsible Officer" shall mean any of the president, the chief executive officer, the chief operating officer, the chief financial officer, the treasurer or a vice president of a Loan Party or such other representative of a Loan Party as may be designated in writing by any one of the foregoing with the consent of Lender; and, with respect to the financial covenants only, the chief financial officer or the treasurer of Borrower Agent.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitments" shall mean, collectively, the Domestic Revolving Commitment and the Ex-Im Revolving Commitment.
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"Revolving Credit Exposure" shall mean, on any date, the sum of the Domestic Revolving Credit Exposure and the Ex-Im Revolving Credit Exposure.
"Revolving Credit Note" shall mean, individually or collectively as the context may require, the Domestic Revolving Note and the Ex-Im Revolving Note.
"Revolving Loan" shall mean, individually or collectively as the context may require, a Domestic Revolving Loan and an Ex-Im Revolving Loan.
"S&P" shall mean Standard & Poor's Financial Services, LLC.
"Sanctioned Country" shall mean, at any time, a country, region or territory that is, or whose government is, the subject or target of any Sanctions.
"Sanctioned Person" shall mean, at any time, (i) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (ii) any Person located, organized or resident in a Sanctioned Country or (iii) any Person Controlled by any such Person.
"Sanctions" shall mean economic or financial sanctions or trade embargoes administered or enforced from time to time by (i) the U.S. government, including those administered by OFAC or the U.S. Department of State or (ii) the United Nations Security Council, the European Union or Her Majesty's Treasury of the United Kingdom.
"Schedule of Accounts" shall have the meaning set forth in Section 5.1(h).
"Security Agreement" shall mean that certain Guaranty and Security Agreement dated on or about the Closing Date among Loan Parties, PubCo, Parent and Lender.
"SOFR" shall mean, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.
"SOFR Administrator" shall mean the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
"SOFR Administrator’s Website" shall mean the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
"Solvent" shall mean, with respect to any Person on a particular date, that on such date (i) the fair value of the Property of such Person is greater than the total amount of liabilities, including subordinated and contingent liabilities, of such Person; (ii) the present fair saleable value of the assets of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts and liabilities, including subordinated and contingent liabilities as they become absolute and matured; (iii) such Person does not intend to, and does not believe that it will, incur debts or liabilities beyond such Person's ability to pay as such debts and liabilities mature; and (iv) such Person is not engaged in a business or transaction, and is not about to engage in a business or transaction, for which such Person's Property would constitute an unreasonably small capital. The amount of contingent liabilities (such as litigation, guaranties and pension plan liabilities) at any time shall be computed as the amount that, in light of all the facts and
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circumstances existing at the time, represents the amount that would reasonably be expected to become an actual or matured liability.
"Specified Loan Party" shall mean each Loan Party that is, at the time on which the relevant Guarantee or grant of the relevant security interest under the Loan Documents by such Loan Party becomes effective with respect to a Swap Obligation, a corporation, partnership, proprietorship, organization, trust or other entity that would not be an "eligible contract participant" under the Commodity Exchange Act at such time.
"STORE Capital" shall have the meaning given such term in the definition of Permitted Sale-Leaseback.
"Subordinated Debt" shall mean Indebtedness incurred or owing by a Loan Party that is expressly subordinate and junior in right of payment or lien priority to Full Payment of all Obligations on terms (including maturity, interest, fees, repayment, covenants, and subordination) satisfactory to Lender and subject to a Subordination Agreement, including the Advantage Subordinated Debt, the Kentucky NMTC Subordinated Debt, and the Intercompany Debt.
"Subordination Agreement" shall mean an agreement among Lender and any holder of Subordinated Debt or subordinated liens, in form and substance satisfactory to Lender in its discretion and shall include the Subordination Agreement (Advantage), the Subordination Agreement (Kentucky NMTC), and the Subordination Agreement (Intercompany).
"Subordination Agreement (Advantage)" shall mean that certain Amended and Restated Subordination Agreement dated as of the date hereof, among Lender, as senior creditor, and Advantage, as subordinated creditor, as may be further amended, restated, supplemented or otherwise modified in accordance with the terms thereof, which provides for the subordination of certain Liens and Indebtedness of Advantage to the Liens and Indebtedness of Lender.
"Subordination Agreement (Intercompany)" shall mean that certain Subordination Agreement dated as of the Closing Date between Lender, as senior creditor, and Borrowers, Parent, PubCo, and Danimer Scientific Manufacturing, Inc., as subordinated creditors, as at any time amended, restated, supplemented or otherwise modified in accordance with the terms thereof or to add additional parties (including any additional Excluded Subsidiaries) thereto.
"Subordination Agreement (Kentucky NTMC)" shall mean that certain Amended and Restated Subordination and Intercreditor Agreement dated as of the date hereof among Lender, as senior creditor, Kentucky NMTC Lender, as subordinated creditor, Parent, and DSK, as at any time further amended, restated, supplemented or otherwise modified in accordance with the terms thereof, which provides for the subordination of certain Liens of the Kentucky NMTC Lender to the Liens of Lender.
"Subordination Agreement (Tri-Party)" shall mean that certain Amended and Restated Subordination and Intercreditor Agreement dated as of the date hereof among Kentucky NMTC Lender and Lender, as senior creditors, Advantage, as subordinated creditor, Parent and DSK, as at any time further amended, restated, supplemented or otherwise modified in accordance with the terms thereof, which provides for the subordination of certain Liens and Indebtedness of Advantage to the Liens and Indebtedness of Lender and Kentucky NMTC Lender.
"Subsidiary" shall mean, with respect to any Person (the “parent”), any corporation, partnership, joint venture, limited liability company, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial
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statements were prepared in accordance with GAAP as of such date, (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power, or in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent. Unless otherwise indicated, all references to “Subsidiary” hereunder shall mean a Subsidiary of Parent, PubCo, and/or Borrower, excluding Excluded Subsidiaries.
"Swap Obligation" shall mean any obligation to pay or perform under any agreement, contract or transaction that constitutes a "swap" within the meaning of Section 1a(47) of the Commodity Exchange Act.
"Taxes" shall mean any and all present or future taxes, levies, imposts, duties, deductions or withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
"Term SOFR" shall mean for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.
"Trademark Security Agreement" shall mean the Trademark Security Agreement executed by Loan Parties in favor of Lender on the Closing Date and each other trademark security agreement at any time executed by a Loan Party in favor of Lender in connection herewith.
"UCC" shall mean the Uniform Commercial Code (or any successor statute) as adopted and in force in the State of Georgia or, when the laws of any other state govern the method or manner of perfection or enforcement of any security interest in any of the Collateral, the Uniform Commercial Code (or any successor statute) of such state.
"Unadjusted Benchmark Replacement" shall mean the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
"Uncommitted Accordion Amount" shall have the meaning set forth in Section 2.3.
"Unfinanced Cash Capital Expenditures" shall mean, for any period, the amount of Capital Expenditures made by Borrowers and their Subsidiaries during such period in cash, but excluding any such Capital Expenditures (i) financed with Indebtedness permitted under Section 7.1(c) and (ii) financed with cash proceeds of equity investments received by PubCo, Parent or the applicable Loan Party.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
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such purpose), then Borrowers' compliance with such covenant shall be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became effective, until either such notice is withdrawn or such covenant is amended in a manner satisfactory to Borrowers and Lender. Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under Accounting Standards Codification Section 825-10 (or any other Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of any Loan Party or any Subsidiary of any Loan Party (including Excluded Subsidiaries) at "fair value", as defined therein. Notwithstanding anything to the contrary contained herein, in the event of an accounting change to the treatment of leases, only those lease obligations (assuming for purposes hereof that they were in existence on the date hereof) that would constitute Capital Lease Obligations on the Closing Date shall be considered Capital Lease Obligations for purposes hereof and all calculations and deliverables under this Agreement or any other Loan Document shall be made in accordance therewith (provided that, along with all financial statements delivered to the Agent in accordance with the terms of this Agreement after the date of such accounting change, Borrowers shall deliver a schedule showing the adjustments necessary to reconcile such financial statements with GAAP as in effect immediately prior to such accounting change).
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(a) (i) Subject to the terms and conditions set forth herein, Lender agrees to make Domestic Revolving Loans to Borrowers, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time that will not result in the Domestic Revolving Credit Exposure exceeding the lesser of: (A) the Domestic Revolving Commitment minus that portion of the Availability Reserve attributable to the Domestic Borrowing Base and (B) the Domestic Borrowing Base. During the Availability Period, Borrowers shall be entitled to borrow, prepay and re-borrow Domestic Revolving Loans in accordance with the terms and conditions of this Agreement; provided, that Borrowers may not borrow or re-borrow any Domestic Revolving Loans if a Default or Event of Default exists. Each Domestic Revolving Loan shall bear interest at the rate provided in Section 2.7.
(ii) Subject to the terms and conditions set forth herein, Lender agrees to make Ex-Im Revolving Loans to Borrowers, from time to time during the Availability Period, in an aggregate principal amount outstanding at any time that will not result in the Ex-Im Revolving Credit Exposure exceeding the lesser of: (A) the Ex-Im Revolving Commitment minus that portion of the Availability Reserve attributable to the Ex-Im Borrowing Base and (B) the Ex-Im Borrowing Base. During the Availability Period, Borrowers shall be entitled to borrow, prepay and re-borrow Ex-Im Revolving Loans in accordance with the terms and conditions of this Agreement; provided, that Borrowers may not borrow or re-borrow any Ex-Im Revolving Loans if a Default or Event of Default exists. Each Ex-Im Revolving Loan shall bear interest at the rate provided in Section 2.7. Borrowers shall use the proceeds of the Ex-Im Revolving Loans solely for the purposes permitted under Section 2.01 of the Ex-Im Borrower Agreement.
(iii) For the avoidance of doubt, (A) Lender shall have no obligation to make any Loan or issue any Letter of Credit under Section 2.15 that would result in the Revolving Credit Exposure exceeding the lesser of: (1) the Revolving Commitment and (2) the Borrowing Base, and (B) except to the extent increased in accordance with Section 2.3, the total Revolving Commitments of Lender contained in this Section 2.1 shall not exceed $20,000,000 in the aggregate at any one time.
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The entries made in such records and/or on the schedule annexed to the Revolving Credit Note shall be prima facie evidence of the existence and amounts of the obligations of Borrowers therein recorded; provided, that the failure or delay of Lender in maintaining or making entries into any such record or on such schedule or any error therein shall not in any manner affect the obligation of Borrowers to repay the Revolving Loans (both principal and unpaid accrued interest) in accordance with the terms of this Agreement.
(ii) If at any time the Ex-Im Revolving Credit Exposure exceeds the lesser of: (i) the Ex-Im Revolving Commitment and (ii) the Ex-Im Borrowing Base (an "Ex-Im Out-of-Formula Condition"; a Domestic Out-of-Formula Condition and an Ex-Im Out-of-Formula Condition, collectively, an "Out-of-Formula Condition"), such Ex-Im Revolving Credit Exposure shall nevertheless constitute Obligations that are secured by the Collateral, that bear interest as set forth herein, and that are entitled to all benefits thereof.
(iii) In no event, however, shall Borrowers have any right whatsoever to (A) receive any Revolving Loan, or (B) request the issuance of any Letter of Credit if, before or after giving effect thereto, there shall exist a Default, an Event of Default or an Out-of-Formula Condition. Out-of-Formula Loans shall be payable immediately on demand. For so long as an Out-of-Formula Condition exists, the principal amount of the Obligations, shall bear interest at the Default Rate.
(a) Borrower Agent shall give Lender written notice (or telephonic notice promptly confirmed in writing) of each Revolving Loan substantially in the form of Exhibit 2.2 (a "Notice of Revolving Borrowing") prior to 10:00 a.m. on the same Business Day of the making of each Revolving Loan requested. Each Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the aggregate principal amount of the Revolving Loan, the portion of such Loan that will be a Domestic Revolving Loan, and the portion of such Loan that will be an Ex-Im Revolving Loan, (ii) the proposed date of such Revolving Loan (which shall be a Business Day) and (iii) whether such Revolving Loan shall be a Base Rate Loan or a LMIR Loan. Upon the satisfaction of the applicable conditions set forth in Article III hereof, Lender will make the proceeds of each Revolving Loan available to Borrowers at the Payment Office on the date specified in the applicable Notice of Revolving Borrowing by crediting an account maintained by Borrowers with Lender or at Borrower Agent's option, by effecting a wire transfer of such amount to an account designated by Borrower Agent to Lender.
(b) If Borrowers have established a controlled disbursement account with Lender, the presentation for payment of any check or other item for payment drawn on such account at a time when there are insufficient funds to cover such payment shall be deemed to be a request for a Revolving Loan on the date of such presentation in the amount of the check or other item presented for payment. Lender may disburse the proceeds of such Revolving Loan directly to the controlled disbursement account or other appropriate account maintained with Lender.
(c) Lender may make extensions of credit under this Agreement based on communications or instructions received from any Person believed by Lender to be a Responsible Officer of any Borrower, or, at the discretion of Lender, if such extensions of credit are necessary to satisfy any
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Obligations. Unless payment is otherwise timely made by Borrowers, the becoming due of any amount required to be paid with respect to any of the Obligations (including any interest, fees or expenses of Lender) shall be deemed irrevocably to be a request (without any requirement for the submission of a notice of borrowing) for a Revolving Loan on the due date of and in an aggregate amount required to pay such Obligations. Lender shall have no obligation to honor any deemed request for a Revolving Loan on or after the Commitment Termination Date or when any applicable condition precedent set forth in Article III hereof is not satisfied, but may do so in its discretion and without regard to the existence of, and without being deemed to have waived, any Default or Event of Default. The proceeds of each Revolving Loan deemed requested by Borrowers under this Section 2.2(c) may be disbursed by Lender by way of direct payment of the relevant Obligations.
(a) Mandatory Prepayments. Borrowers shall:
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(b) Voluntary Prepayments. Borrowers may make voluntary prepayments (without premium or penalty) of the Loans at any time.
(c) Application of Prepayments. Lender may apply any prepayments to the Obligations in such manner and in such order as determined by Lender in its discretion.
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(a) Commitment Fee. Borrowers jointly and severally agree to pay to Lender a commitment fee, which shall accrue at a rate of 0.20% per annum on the average daily amount of the unused Revolving Commitment (which shall be calculated based on the total Revolving Credit Exposure); provided, that if Lender continues to have any Revolving Loans or LC Exposure outstanding after the Commitment Termination Date, then the commitment fee shall continue to accrue on the amount of Lender's unused Commitment from and after the Commitment Termination Date until the Full Payment of the Obligations. Accrued commitment fees shall be payable in arrears on the first day of each month and on the Commitment Termination Date, commencing on the first such date after the Closing Date; provided further, that any commitment fees accruing after the Commitment Termination Date shall be payable on demand.
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All computations of interest and fees hereunder shall be made on the basis of a year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable (to the extent computed on the basis of days elapsed). Each determination by Lender of an interest amount or fee hereunder shall be made in good faith and, except for manifest error, shall be final, conclusive and binding for all purposes.
(a) In the event Lender determines in its sole discretion on a particular date (the “Determination Date”) that Lender cannot make, fund, or maintain a loan based upon the London Interbank Offered Rate (provided a Benchmark Transition Event has not occurred) or the Benchmark Replacement, as applicable, for any reason, including without limitation illegality or the inability to ascertain or determine said rate on the basis provided for herein, then Lender shall give notice to Borrower Agent of such determination and thereafter will have no obligation to make, fund or maintain a loan based on such index. Upon such Determination Date, the interest rate shall convert to the Base Rate for purposes of any fundings or advances requested by Borrowers and shall apply to any outstanding balance and, thereafter, the interest rate on LMIR Loans shall adjust simultaneously with any fluctuation in the Base Rate. In the event Lender determines that the circumstances giving rise to a notice pursuant to this Section have ended, Lender shall provide notice of same at which time the interest rate will revert to the prior rate based upon the London Interbank Offered Rate (provided a Benchmark Transition Event has not occurred) or the Benchmark Replacement, as applicable, plus the margin over the index described in this Agreement, subject to any minimum or floor rate provided for in the Loan Documents.
(b) Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then, (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, in connection with a Benchmark Transition Event, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, or in connection with an Early Opt-in Election, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m.
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(Charlotte, North Carolina) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Borrower Agent without any amendment to this Agreement or any other Loan Document, or further action or consent of any Borrower.
(c) In connection with the implementation of a Benchmark Replacement, Lender will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any Borrower.
(d) Lender will promptly notify Borrower Agent of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 2.10(e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by Lender pursuant to Section 2.10, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its sole discretion and without consent from any Borrower.
(e) Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or LMIR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by Lender in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then Lender may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then Lender may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f) Upon the Borrower Agent’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any request for an advance based upon LMIR, conversion to or continuation of loans based upon LMIR to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrowers will be deemed to have converted any such request into a request for a borrowing of or conversion to the Base Rate. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of Base Rate.
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by electronic communication (if arrangements for doing so have been approved by Lender), prior to 12:00 noon (Atlanta, Georgia time), at least three (3) Business Days prior to the requested date of such issuance specifying (i) the date (which shall be a Business Day) such Letter of Credit is to be issued (or amended, extended or renewed, as the case may be), (ii) the expiration date of such Letter of Credit, (iii) the amount of such Letter of Credit, (iv) the name and address of the beneficiary thereof and (v) such other information as shall be necessary to prepare, amend, renew or extend such Letter of Credit. In addition to the satisfaction of the conditions in Article III, the issuance of such Letter of Credit (or any amendment which increases the amount of such Letter of Credit) will be subject to the further conditions that such Letter of Credit shall be in such form and contain such terms as Lender shall approve and that the applicable Borrower shall have executed and delivered any additional applications, agreements and instruments relating to such Letter of Credit as Lender shall reasonably require; provided, that in the event of any conflict between such applications, agreements or instruments and this Agreement, the terms of this Agreement shall control.
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Neither Lender nor any Related Party of Lender shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to above), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of Lender, and Lender shall be deemed to have exercised care in each such determination. In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented that appear on their face to be in substantial compliance with the terms of a Letter of Credit, Lender may, in its discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
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or communication (including any notice of borrowing) delivered by Borrower Agent on behalf of any Borrower. Lender may give any notice or communication with a Borrower hereunder to Borrower Agent on behalf of such Borrower. Lender shall have the right, in its discretion, to deal exclusively with Borrower Agent for all purposes under the Loan Documents. Each Borrower agrees that any notice, election, communication, delivery, representation, agreement, action or undertaking on its behalf by Borrower Agent shall be binding upon and enforceable against it.
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right of Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower's obligation to pay the full amount of the Obligations. Each Borrower waives all rights and defenses arising out of an election of remedies, such as nonjudicial foreclosure with respect to any security for Obligations, even though that election of remedies destroys such Borrower's rights of subrogation against any other Person. Lender may bid Obligations, in whole or part, at any foreclosure, trustee or other sale, including any private sale, and the amount of such bid need not be paid by Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Lender or any other Person is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral, and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 2.17, notwithstanding that any present or future law or court decision may have the effect of reducing the amount of any deficiency claim to which Lender might otherwise be entitled but for such bidding at any such sale.
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intends this Section 2.17(c)(iv) to constitute, and this Section 2.17(c)(iv) shall be deemed to constitute, a guarantee of the obligations of, and a "keepwell, support or other agreement" for the benefit of, each Loan Party for all purposes of the Commodity Exchange Act.
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of Equipment Loans, then in any such case, Lender may require that Borrowers promptly repay to Lender the entire amount of such excess(es).
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(i) a counterpart of this Agreement signed by or on behalf of each party hereto;
(ii) the Note(s) duly executed by Borrowers;
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(iii) a certificate of the Secretary or Assistant Secretary of each Loan Party attaching and certifying copies of its bylaws, or partnership agreement or limited liability company agreement, and of the resolutions of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party;
(iv) certified copies of the articles or certificate of incorporation, certificate of organization or limited partnership, or other registered organizational documents of each Loan Party, together with certificates of good standing or existence, as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party and each other jurisdiction where such Loan Party is required to be qualified to do business as a foreign corporation;
(v) favorable written opinions of Kane Kessler, P.C. and James-Bates-Brannan-Grover-LLP, as local Georgia counsel to Borrowers and Guarantors (together with any local counsel opinions, as applicable), counsel to the Loan Parties, addressed to Lender and covering such matters relating to the Loan Parties, the Loan Documents and the transactions contemplated therein as Lender shall reasonably request;
(vi) a certificate dated the Closing Date and signed by a Responsible Officer, certifying that (A) (1) no Borrower is in default under any supply agreement with any customer, (2) no customer under any supply agreement has a basis for termination of such agreement prior to the stated maturity date thereof, and (3) Borrowers have satisfied all of their obligations under each such agreement and under applicable law with respect to the products supplied thereunder, and (B) after giving effect to the funding of the initial Revolving Loans and issuance of any Letters of Credit on the Closing Date, (x) no Default or Event of Default exists, (y) all representations and warranties of each Loan Party set forth in the Loan Documents are true and correct and (z) since the date of the financial statements of PubCo, Parent and Borrowers described in Section 4.4, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(vii) a duly executed Notice of Revolving Borrowing for any initial Revolving Loans;
(viii) a duly executed funds disbursement agreement, together with a report setting forth the sources and uses of the proceeds hereof;
(ix) certified copies of all consents, approvals, authorizations, registrations and filings and orders required or advisable to be made or obtained under any applicable law, or by any contractual obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall exist;
(x) copies of (A) the internally prepared monthly financial statements of PubCo and its Subsidiaries on a consolidated and consolidating basis for the calendar month ended February 28, 2021, (B) the audited consolidated and consolidating financial statements for PubCo and its Subsidiaries for the Fiscal Year ended December 31, 2020 and (C) financial projections on a monthly basis for the Fiscal Year ending December 31, 2021, and on an annual basis thereafter through the Fiscal Year ending December 31, 2024;
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(xi) a certificate, dated the Closing Date and signed by the chief financial officer of Borrower Agent, confirming that the Loan Parties are Solvent on a consolidated basis before and after giving effect to the funding of the initial Revolving Loans and the consummation of the transactions contemplated to occur on the Closing Date;
(xii) the Security Agreement, duly executed by Loan Parties, PubCo, Parent, and each of their Domestic Subsidiaries (other than Excluded Subsidiaries), together with (A) UCC financing statements and other applicable documents under the laws of all necessary or appropriate jurisdictions with respect to the perfection of the Liens granted under the Security Agreement, as requested by Lender in order to perfect such Liens, duly authorized by the Loan Parties, (B) copies of favorable UCC, tax, judgment and fixture lien search reports in all necessary or appropriate jurisdictions and under all legal and trade names of the Loan Parties, as requested by Lender, indicating that there are no prior Liens on any of the Collateral other than Permitted Liens and Liens to be released on the Closing Date, (C) an information certificate, duly completed and executed by the Loan Parties, and (D) duly executed Patent Security Agreements and Trademark Security Agreements and Copyright Security Agreements, as applicable;
(xiii) Deposit Account Control Agreements, duly executed by Lender, each applicable depository bank and the applicable Borrower;
(xiv) with respect to the headquarters location and each location where books or records or Collateral is stored or located, a copy of the underlying lease, as applicable, and a Lien Waiver from the landlord of such leased property or the bailee with respect to any warehouse or other location where such books, records or Collateral are stored or located, which Lien Waivers shall be satisfactory to Lender in all respects;
(xv) the Subordination Agreement (Tri-Party), the Subordination Agreement (Advantage), the Subordination Agreement (Kentucky NMTC), and the Subordination Agreement (Intercompany), and all other Subordination Agreements required to be delivered on the Closing Date, in each case, duly executed by the applicable parties thereto;
(xvi) all Ex-Im Guarantee Documents duly executed by the applicable parties thereto and all other matters related to the Ex-Im facility provided for hereunder as Lender may require;
(xvii) all other Loan Documents required by Lender duly executed by the applicable Loan Parties;
(xviii) a duly completed and executed Borrowing Base Certificate prepared as of February 28, 2021, and Lender's satisfaction that, upon giving effect to the initial funding of Revolving Loans and issuance of Letters of Credit, the implementation of the Availability Reserve and the payment by Borrowers of all fees and expenses incurred in connection herewith as well as any payables more than sixty (60) days past due, Excess Availability is not less than $2,000,000;
(xix) certificates of insurance, in form and detail acceptable to Lender, describing the types and amounts of insurance (property and liability) maintained by any of the Loan Parties, in each case naming Lender as lender's loss payee, additional insured or mortgagee, as the case may be;
(xx) all documentation and other information with respect to Loan Parties that Lender requires or is required by regulatory authorities under applicable "know-your-customer" and anti-money laundering rules and regulations, including the PATRIOT Act; and
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(xxi) such other documents, certificates, information or legal opinions as Lender may request, all in form and substance satisfactory to Lender and if any Loan Party qualifies as a "legal entity customer" under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to such Loan Party.
The making of each Loan and each issuance, amendment, extension or renewal of any Letter of Credit shall be deemed to constitute a representation and warranty by Borrowers on the date thereof as to the matters specified in Section 3.2.
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To induce Lender to enter into this Agreement and to make available the Commitments, Loans and Letters of Credit, each Borrower represents and warrants, for itself and on behalf of PubCo and Parent, as applicable, to Lender as follows:
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December 31, 2020, there have been no changes with respect to Parent (or PubCo, as applicable) and its Subsidiaries which have had or could reasonably be expected to have, singly or in the aggregate, a Material Adverse Effect.
(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code, and other federal and state laws. Each Plan that is intended to qualify under Section
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401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto, or the expiration of the requisite period under applicable regulations promulgated by the IRS under the Code or IRS pronouncements in which to apply for such determination letter and to make any amendments necessary to obtain a favorable determination has not occurred and, to the knowledge of Borrowers, nothing has occurred which would prevent, or cause the loss of, such qualification. Each Loan Party and ERISA Affiliate has met all applicable material requirements under the Code, ERISA and the Pension Protection Act of 2006, and no application for a waiver of the minimum funding standards or an extension of any amortization period has been made with respect to any Plan.
(b) There are no pending or, to the knowledge of Borrowers, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted in or could reasonably be expected to have a Material Adverse Effect.
(c) With respect to each Plan, (i) no ERISA Event has occurred or is reasonably expected to occur; (ii) as of the most recent valuation date for any Plan, the funding target attainment percentage (as defined in Section 430(d)(2) of the Code) is at least 60%; and no Loan Party or ERISA Affiliate knows of any reason that such percentage could reasonably be expected to drop below 60%; (iii) no Loan Party or ERISA Affiliate has incurred any liability to the PBGC except for the payment of premiums, and no premium payments are due and unpaid; (iv) no Loan Party or ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA; and (v) no Plan has been terminated by its plan administrator or the PBGC, and no fact or circumstance exists that could reasonably be expected to cause the PBGC to institute proceedings to terminate a Plan.
(d) With respect to any Foreign Plan, (i) all employer and employee contributions required by law or by the terms of the Foreign Plan have been made, or, if applicable, accrued, in accordance with normal accounting practices; (ii) the fair market value of the assets of each funded Foreign Plan, the liability of each insurer for any Foreign Plan funded through insurance, or the book reserve established for any Foreign Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations with respect to all current and former participants in such Foreign Plan according to the actuarial assumptions and valuations most recently used to account for such obligations in accordance with applicable generally accepted accounting principles; and (iii) it has been registered as required and has been maintained in good standing with applicable regulatory authorities.
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to be viewed as facts and that actual results during the period or periods covered thereby may differ from the projected or forecasted results. No event or circumstance has occurred or exists that constitutes a Default or Event of Default.
(b) As of the Closing Date, the information included in the Beneficial Ownership Certification is true and correct in all respects.
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or authorizations; all such licenses, permits, consents, approvals or authorizations are current and in full force and effect.
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Until Full Payment of the Obligations and termination of the Commitments, each Borrower covenants and agrees, for itself, that it shall, and shall cause each Subsidiary to, comply with the following covenants:
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consolidating basis in accordance with GAAP and that the examination by such accountants in connection with such consolidated and consolidating financial statements has been made in accordance with generally accepted auditing standards, or, if applicable, PCAOB standards;
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Lender may request; provided, that, at any time (A) (x) Excess Availability is less than the greater of (i) twenty-two and one half percent (22.5%) multiplied by the Borrowing Base and (ii) $2,250,000 and (B) the balance of Revolving Credit Exposure and Equipment Loans at any time during the past sixty (60) days has been greater than $0, or (y) an Event of Default exists, Borrower Agent shall deliver to Lender a Borrowing Base Certificate on or before the second (2nd) Business Day of each week as of the last Business Day of the immediately preceding week. All calculations of Excess Availability in connection with any Borrowing Base Certificate shall originally be made by Borrower Agent and certified by a Responsible Officer to Lender, provided, that Lender shall have the right to review and adjust, in the exercise of its discretion, any such calculation (i) to reflect its reasonable estimate of declines in value of any of the Collateral described therein and (ii) to the extent that such calculation is not in accordance with this Agreement or does not accurately reflect the amount of the Availability Reserve. In no event shall the Borrowing Base on any date be deemed to exceed the amount of the Borrowing Base shown on the Borrowing Base Certificate last received by Lender prior to such date, as the calculation in such Borrowing Base Certificate may be adjusted from time to time by Lender as herein authorized;
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Each notice delivered under this Section shall be accompanied by a written statement of a Responsible Officer setting forth the details of the event or development requiring such notice and any action taken or proposed to be taken with respect thereto.
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execution of this Agreement and the other Loan Documents, to finance working capital needs and for other general corporate purposes of Borrowers and Subsidiaries (including the issuance of Letters of Credit) to the extent permitted by this Agreement. No part of the proceeds of any Loan will be used, whether directly or indirectly, for any purpose that would violate any rule or regulation of the Board of Governors of the Federal Reserve System, including Regulations T, U or X or in any manner which would result in the representation in Sections 4.9 or 4.16 being incorrect. All Letters of Credit will be used for general corporate purposes. No Borrower will request any Loan or Letter of Credit, and no Borrower nor any of its Subsidiaries or their respective directors, officers, employees and agents will use the proceeds of any Loan or Letter of Credit (a) in the furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Laws, (b) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person or in any Sanctioned Country or (c) in any manner that would result in the violation of any Anti-Terrorism Law or Sanctions applicable to any party hereto.
(i) Borrowers shall take all steps to ensure that all of their Account Debtors forward all items of payment to the Concentration Account or to lockboxes or Controlled Accounts established with Lender;
(ii) all amounts which shall be deposited into the Concentration Account or any lockbox account that is a Controlled Account shall immediately be under the sole dominion and exclusive
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control of Lender, and no Borrower shall have any right to withdraw such amounts from the applicable Controlled Account;
(iii) on each Business Day, Lender may cause, without further consent of any Borrower, all immediately available funds in lockbox accounts that are Controlled Accounts to be deposited into the Concentration Account and apply all immediately available funds in the Concentration Account against the Obligations. If, as a result of such application, a credit balance exists, the balance shall not accrue interest in favor of Borrowers and shall be made available to Borrowers for withdrawal as long as no Default or Event of Default exists; and
(a) In the event that, after the Closing Date, any Person becomes a Domestic Subsidiary of a Loan Party (other than an Excluded Subsidiary), whether pursuant to formation, acquisition or otherwise, Borrowers shall promptly notify Lender thereof and Borrowers shall cause such Domestic
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Subsidiary (i) to become a new Borrower or Guarantor, as determined by Lender, and to grant Liens in favor of Lender in all of its Property by executing and delivering to Lender supplements to the Security Agreement, each in form and substance satisfactory to Lender and, in the case of new Borrowers, a joinder to this Agreement, and authorizing and delivering, at the request of Lender, such UCC financing statements or similar instruments required by Lender to perfect the Liens in favor of Lender and granted under any of the Loan Documents, and, as requested by Lender, to deliver all such other documentation (including certified organizational documents, resolutions, lien searches, legal opinions, and amendments or joinders to subordination agreements and intercreditor agreements, as applicable) and to take all such other actions as required by Lender. In addition, Borrowers shall, or shall cause the applicable Loan Party to (i) pledge all of the Equity Interests of such Domestic Subsidiary to Lender as security for the Obligations by executing and delivering a supplement to the Security Agreement or a separate pledge agreement in form and substance satisfactory to Lender, and (ii) deliver the original certificates evidencing such pledged Equity Interests to Lender together with appropriate powers executed in blank.
(b) In the event that, after the Closing Date, any Person becomes a direct Foreign Subsidiary of any Loan Party, whether pursuant to formation, acquisition or otherwise, (i) Borrowers shall promptly notify Lender thereof and (ii) to the extent such Foreign Subsidiary is owned directly by any Loan Party, Borrowers shall, or shall cause the applicable Loan Party to (i) pledge 65% of the issued and outstanding voting Equity Interests of such Foreign Subsidiary and 100% of the issued and outstanding non-voting Equity Interests of such Foreign Subsidiary, as applicable to Lender as security for the Obligations pursuant to a pledge agreement in form and substance satisfactory to Lender, (ii) deliver the original certificates evidencing such pledged Equity Interests to Lender, together with appropriate powers executed in blank and (iii) deliver all such other documentation (including certified organizational documents, resolutions, lien searches, legal opinions, and amendments or joinders to subordination agreements and intercreditor agreements, as applicable) and to take all such other actions as Lender may request.
(c) Borrowers agree that, following the delivery of any Loan Documents required to be executed and delivered by this Section, Lender shall have a valid and enforceable, first priority perfected Lien (subject only to (x) Liens of Advantage under the Advantage Loan Documents and priority agreements related thereto in the Subordination Agreement (Advantage) and the Subordination Agreement (Tri-Party)) on the Property required to be pledged pursuant to subsection (a) of this Section 5.12 and (z) Permitted Liens). All actions to be taken pursuant to this Section 5.12 shall be at the expense of Borrowers or the applicable Loan Party and shall be taken to the satisfaction of Lender.
If any Loan Party proposes to lease any Real Estate that is a headquarters location or a location where books or records, or any Collateral in an amount exceeding $50,000 will be stored or located, it shall first provide to Lender a copy of such lease and obtain a Lien Waiver from the landlord of such leased property or the bailee with respect to any warehouse or other location where such books, records or Collateral will be stored or located, which agreement or letter shall be in form and substance reasonably satisfactory to Lender.
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Until Full Payment of the Obligations and termination of the Commitments, each Borrower covenants and agrees that:
Until Full Payment of the Obligations and termination of the Commitments, each Borrower covenants and agrees, for itself and on behalf of Parent and PubCo, as applicable, that it shall not, and shall cause each Subsidiary not to do, any of the following:
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Intellectual Property that such Borrower deems in its reasonable business judgment not useful to its business in the Ordinary Course of Business;
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Borrower or any Subsidiary is exposed in the conduct of its business or the management of its liabilities. Solely for the avoidance of doubt, each Borrower acknowledges that a Hedging Transaction entered into for speculative purposes or of a speculative nature (which shall be deemed to include any Hedging Transaction under which any Borrower or any Subsidiary is or may become obliged to make any payment (i) in connection with the purchase by any third party of any Equity Interest or any Indebtedness or (ii) as a result of changes in the market value of any Equity Interest or any Indebtedness) is not a Hedging Transaction entered into in the Ordinary Course of Business to hedge or mitigate risks.
(a) No Borrower will, and will not permit any of its Subsidiaries to (i) prepay, redeem, repurchase or otherwise acquire for value any Subordinated Debt, or (ii) make any principal, interest or other payments on any Subordinated Debt that is not expressly permitted by the applicable Subordination Agreement.
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NMTC), (D) Intercompany Debt so long as such liabilities remain subject to the Subordination Agreement (Intercompany), (ii) liabilities of Parent under the disbursement agreement entered into with STORE Capital in connection with the Permitted Sale-Leaseback, (iii) liabilities of Parent as a guarantor of, and leverage lender under, the Excluded Subsidiary NMTC Transaction, including put and call rights associated with the winding down or early termination of such transaction, (iv) tax liabilities in the Ordinary Course of Business, (v) corporate, administrative and operating expenses in the Ordinary Course of business, including such expenses inherent in providing the services to Loan Parties contemplated under the Management Services Agreement and payments due in respect of the matter set forth on Schedule 7.15(b) and liabilities and other expenses of PubCo in connection with its listing on a national stock exchange, (vi) liabilities under the contracts retained by Parent and set forth on Exhibit D to that certain Contribution and Assignment Agreement dated March 13, 2019, between Parent, as contributor, and Holdings, as contributee, and other liabilities of Parent and PubCo listed on Schedule 7.15 hereto, and (vii) liabilities incidental or reasonably related to the activities expressly permitted by this Section 7.15, (E) liabilities and obligations incurred in connection with that certain Agreement and Plan of Merger by and among the Live Oak Acquisition Corp., a Delaware corporation, Green Merger Corp., Parent, Live Oak Sponsor Partners, LLC, as the Live Oak Representative, and John A. Dowdy, Jr., as the Shareholder Representative, dated as of October 3, 2020, as may be amended, restated, supplemented, or otherwise modified from time to time, (F) liabilities and obligations of Parent in connection with the Kentucky IRB, (G) liabilities and obligations of PubCo for unsecured indebtedness in an aggregate amount not to exceed $300,000,000 at any time outstanding, and (H) liabilities and obligations of PubCo, contingent or otherwise, in respect of warrants or other obligations to purchase, redeem, or otherwise acquire for value any common stock of PubCo to the extent such purchase, redemption or acquisition for value could not reasonably be expected to result in a Material Adverse Effect; or
provided, that PubCo and Parent may engage in other activities, incur other debt, and own other assets, in each case, agreed to by Borrower and Lender from time to time after the closing date (whether orally or in writing, and to the extent material, consented to in writing by Lender (including, without limitation, the formation of any Excluded Subsidiary) that are reasonably related to its holding company status and not otherwise inconsistent with the terms of this Agreement.
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or a trustee is appointed to take possession of any of its Property or to operate any of its business, or (iv) take any action for the purpose of effecting any of the foregoing; or
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During the existence of an Event of Default, Lender is hereby granted an irrevocable, non-exclusive license or other right to use, license or sub-license (exercisable without payment of compensation to any Loan Party or any other Person) any or all of each Borrower's Intellectual Property and any Property of a similar nature, in advertising for sale, marketing, selling and collecting and in completing the manufacturing of any Collateral, and each Borrower's rights under all licenses and franchise agreements shall inure to Lender's benefit. The proceeds realized from any sale or other disposition of any Collateral may be applied, first to any expenses incurred by Lender and then to the remainder of the Obligations in such order of application as Lender may elect in its discretion, with Borrowers and the other Loan Parties remaining liable for any deficiency.
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To Borrowers: |
c/o Danimer Scientific Holdings, LLC 140 Industrial Boulevard Bainbridge, Georgia 39817 Attention: Stephen E. Croskrey, CEO Email: croskrey@danimer.com |
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With a copy to (which shall not constitute notice):
Kane Kessler, P.C. 600 3rd Ave, 35th Floor New York, New York 10016 Attention: Robert L. Lawrence and Aris Haigian Email: rlawrence@kanekessler.com and ahaigian@kanekessler.com Facsimile: 212-245-3009
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To Lender: |
Truist Bank 3333 Peachtree Road, N.E. 4th Floor Atlanta, Georgia 30326 Attention: ABL Portfolio Manager Email: Mark.Bohntinsky@Truist.com
With a copy to (which shall not constitute notice):
Truist Bank 4777 Sharon Road Charlotte, North Carolina 28210 Attn: Mark Bohntinsky Email: Mark.Bohntinsky@Truist.com |
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All such notices and other communications shall, when transmitted by overnight delivery, or faxed, be effective when delivered for overnight (next-day) delivery, or transmitted in legible form by facsimile machine, respectively, or if mailed, upon the third Business Day after the date deposited into the mails or if delivered, upon delivery; provided, that notices delivered to Lender shall not be effective until actually received by Lender at its address specified in this Section 9.1.
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transactions contemplated thereby, including any actions taken to perfect or maintain priority of Lender's Liens on any Collateral, to maintain any insurance required hereunder or to verify Collateral; (c) subject to the limits of Section 5.7, any examination or appraisal with respect to any Loan Party or Collateral by Lender's personnel or a third party, (d) the enforcement or protection of its rights in connection with this Agreement, including its rights under this section, or in connection with the Loans made or any Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit, (e) without limiting the foregoing, instituting, maintaining, preserving, enforcing and foreclosing on Lender’s security interest in or Lien on any of the Collateral, or maintaining, preserving or enforcing any of Lender’s rights hereunder or under any Subordination Agreement, any deposit account control agreement, or mortgage, and under all related agreements, documents and instruments, whether through judicial proceedings or otherwise, (f) in defending or prosecuting any actions or proceedings arising out of or relating to Lender’s transactions with any Loan Party, Advantage, or any party to the Kentucky NMTC Transaction, or any other parties to an intercreditor or subordination agreement or any of their respective Affiliates, or (g) otherwise in connection with this Agreement and all other Loan Documents and any other related agreements, documents and instruments or any advice given to Lender with respect to its rights and obligations hereunder or thereunder. All legal, accounting and consulting fees shall be charged to Borrowers by Lender's professionals at their full hourly rates, regardless of any alternative fee arrangements that Lender or any of its Affiliates may have with such professionals that otherwise might apply to this or any other transaction. Borrowers acknowledge that counsel may provide Lender with a benefit (such as a discount, credit or accommodation for other matters) based on counsel's overall relationship with Lender, including fees paid hereunder. If, for any reason (including inaccurate reporting by any Borrower), it is determined that a higher Applicable Margin should have applied to a period than was actually applied, then the proper margin shall be applied retroactively and Borrowers shall immediately pay to Lender an amount equal to the difference between the amount of interest and fees that would have accrued using the proper margin and the amount actually paid.
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Borrower Agent after any such set-off and any application made by Lender; provided, that the failure to give such notice shall not affect the validity of such set-off and application.
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[Remainder of page left intentionally blank;
Signatures begin on following page.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed under seal by their respective authorized officers as of the day and year first above written.
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BORROWERS:
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DANIMER SCIENTIFIC HOLDINGS, LLC,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[SEAL]
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MEREDIAN, INC., a Georgia corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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MEREDIAN BIOPLASTICS, INC.,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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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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DANIMER BIOPLASTICS, INC., a Georgia corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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DANIMER SCIENTIFIC KENTUCKY, 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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LENDER:
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TRUIST BANK
By: /s/ Mark Bohntinsky Name: Mark Bohntinsky Title: Managing Director |
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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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EXHIBIT 10.2
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:
"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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EXHIBIT 10.2
(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.
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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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EXHIBIT 10.2
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.
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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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EXHIBIT 10.2
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.
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EXHIBIT 10.2
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.
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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EXHIBIT 10.2
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EXHIBIT 10.2
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.
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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.
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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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Lender to the date reimbursed by the relevant Grantor, shall be payable by such Grantor to Lender on demand.
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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.
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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.
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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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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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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.
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BORROWERS:
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DANIMER SCIENTIFIC HOLDINGS, LLC,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[SEAL]
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MEREDIAN, INC., a Georgia corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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MEREDIAN BIOPLASTICS, INC.,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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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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DANIMER BIOPLASTICS, INC., a Georgia corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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DANIMER SCIENTIFIC KENTUCKY, INC., a Delaware corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL] |
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GUARANTORS:
Danimer Scientific, Inc.,
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL] |
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MEREDIAN HOLDINGS GROUP, INC., a Delaware corporation
By: /s/ John A. Dowdy, III Name: John A. Dowdy, III Title: Chief Financial Officer
[CORPORATE SEAL]
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[Signatures continued on following page.]
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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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