CREDIT AND SECURITY AGREEMENT among Danimer Scientific, Inc., Meredian Holdings Group, Inc., Danimer Scientific Holdings, LLC, Meredian, Inc., Danimer Scientific, L.L.C., Danimer Bioplastics, Inc., Danimer Scientific Kentucky, Inc., (as Borrowers) the...

CREDIT AND SECURITY AGREEMENT

among

Danimer Scientific, Inc.,
Meredian Holdings Group, Inc.,
Danimer Scientific Holdings, LLC,
Meredian, Inc.,
Danimer Scientific, L.L.C.,
Danimer Bioplastics, Inc.,
Danimer Scientific Kentucky, Inc.,
(as Borrowers)

the other Borrowers and Loan Parties from time to time party hereto,

the Lenders from time to time party hereto,

AND

ABL OPCO LLC
(as Administrative Agent)

 

Dated as of April 19, 2024

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ARTICLE I. DEFINITIONS 1

SECTION 1.1. Accounting Terms 1

SECTION 1.2. General Terms 1

SECTION 1.3. UCC Terms 29

SECTION 1.4. General Construction 30

SECTION 1.5. Time 30

SECTION 1.6. Rates 30

ARTICLE II. ADVANCES, PAYMENTS 31

SECTION 2.1. Revolving Loans 31

SECTION 2.2. Borrowing Procedure 31

SECTION 2.3. Loan Disbursement 31

SECTION 2.4. Maximum Advances 32

SECTION 2.5. Loan Repayment. 33

SECTION 2.6. Statements 34

SECTION 2.7. Uncommitted Increase in Revolving Commitment 35

SECTION 2.8. Additional Payments 35

SECTION 2.9. Use of Proceeds 35

SECTION 2.10. Undrawn Availability 36

SECTION 2.11. Mitigation of Obligations. 36

SECTION 2.12. Taxes. 36

SECTION 2.13. Defaulting Lenders. 40

ARTICLE III. INTEREST AND FEES 41

SECTION 3.1. Interest. 41

SECTION 3.2. [Reserved] 41

SECTION 3.3. Unused Facility Fee 41

SECTION 3.4. Collateral Monitoring Fees 42

SECTION 3.5. Closing Fee 42

SECTION 3.6. Computing Interest and Fees; Conforming Changes. 42

SECTION 3.7. Maximum Interest; Controlling Limitation. 42

SECTION 3.8. Increased Costs. 43

SECTION 3.9. Temporary Unavailability of Term SOFR 44

SECTION 3.10. Effect of Benchmark Transition Event 44

SECTION 3.11. Illegality of SOFR Loans 45

SECTION 3.12. Compensation for Losses 45

ARTICLE IV. COLLATERAL: GENERAL TERMS 45

SECTION 4.1. Security Interest 45

SECTION 4.2. Perfection 45

SECTION 4.3. Collateral 46

SECTION 4.4. Preserving Collateral 46

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SECTION 4.5. Ownership 46

SECTION 4.6. Defending the Administrative Agent’s Interests 46

SECTION 4.7. Books and Records 47

SECTION 4.8. [Reserved] 47

SECTION 4.9. Laws; Insurance Requirements 47

SECTION 4.10. Inspections and Appraisals 47

SECTION 4.11. Insurance 48

SECTION 4.12. Paying Insurance 48

SECTION 4.13. Paying Taxes 48

SECTION 4.14. Paying Leasehold Obligations 49

SECTION 4.15. Accounts; Cash Management. 49

SECTION 4.16. Collateral Maintenance 51

SECTION 4.17. No Liability 51

SECTION 4.18. Environmental Matters. 51

SECTION 4.19. Financing Statements 52

SECTION 4.20. Agreement to Subordinate 52

SECTION 4.21. New Loan Parties 53

ARTICLE V. REPRESENTATIONS AND WARRANTIES 53

SECTION 5.1. Authority 53

SECTION 5.2. Formation; Qualification; and Subsidiaries 53

SECTION 5.3. Officers; Directors. 53

SECTION 5.4. No Governmental Approval; No Conflict 53

SECTION 5.5. Tax Returns 54

SECTION 5.6. Financial Information. 54

SECTION 5.7. Name 54

SECTION 5.8. O.S.H.A. and Environmental Compliance 54

SECTION 5.9. Solvency; No Litigation, No Violation, ERISA. 55

SECTION 5.10. Intellectual Property 55

SECTION 5.11. Licenses and Permits 55

SECTION 5.12. Indebtedness Default 55

SECTION 5.13. No Burdensome Restrictions; No Default 55

SECTION 5.14. No Labor Disputes 56

SECTION 5.15. Margin Regulations 56

SECTION 5.16. Investment Company Act 56

SECTION 5.17. Disclosure; No Material Adverse Effect 56

SECTION 5.18. Hedging Contracts 56

SECTION 5.19. Material Business Agreements 56

SECTION 5.20. Certain Laws and Regulations 56

SECTION 5.21. Anti-Corruption Laws and Sanctions 56

SECTION 5.22. Business Purpose 56

SECTION 5.23. Delivery of Term Loan Documents 56

ARTICLE VI. AFFIRMATIVE COVENANTS 57

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SECTION 6.1. Conducting Business; Maintaining Existence; and Assets. 57

SECTION 6.2. Violations 57

SECTION 6.3. [Reserved] 57

SECTION 6.4. Supplemental Instruments 57

SECTION 6.5. Indebtedness 57

SECTION 6.6. Financial Statements 57

SECTION 6.7. Taxes 58

SECTION 6.8. Deposit Accounts 58

SECTION 6.9. [Reserved] 58

SECTION 6.10. [Reserved] 58

SECTION 6.11. Post-Closing Matters 58

ARTICLE VII. NEGATIVE COVENANTS 58

SECTION 7.1. Mergers; Consolidations; and Asset Sales. 58

SECTION 7.2. Liens 58

SECTION 7.3. Guarantees 58

SECTION 7.4. Investments 58

SECTION 7.5. Loans 59

SECTION 7.6. [Reserved] 59

SECTION 7.7. Distributions, Compensation, and Management Fees. 59

SECTION 7.8. Indebtedness 61

SECTION 7.9. Business 62

SECTION 7.10. Affiliate Transactions 62

SECTION 7.11. [Reserved] 62

SECTION 7.12. Subsidiaries; Partnerships; and Disqualified Stock. 63

SECTION 7.13. Fiscal Year and Accounting Changes 63

SECTION 7.14. Pledging Credit 63

SECTION 7.15. Amending Charter Documents 63

SECTION 7.16. ERISA 63

SECTION 7.17. Prepaying Indebtedness 63

SECTION 7.18. [Reserved] 63

SECTION 7.19. Anti-Corruption Laws; Sanctions 63

SECTION 7.20. Modification of Term Loan Documents 64

SECTION 7.21. [Reserved] 64

ARTICLE VIII. CONDITIONS PRECEDENT 64

SECTION 8.1. Conditions to Initial Loans 64

SECTION 8.2. Conditions to Each Loan and Advance 66

ARTICLE IX. INFORMATION AS TO THE LOAN PARTIES 67

SECTION 9.1. Disclosure 67

SECTION 9.2. Schedules. 67

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SECTION 9.3. Notice of Suits and Adverse Events 68

SECTION 9.4. Material Events 69

SECTION 9.5. Annual Financial Statements 69

SECTION 9.6. Monthly Financial Statements 69

SECTION 9.7. Additional Information 69

SECTION 9.8. Projected Operating Budget and Availability Forecast 70

SECTION 9.9. Electronic Reporting 70

SECTION 9.10. Lender Information Requests. 70

ARTICLE X. EVENTS OF DEFAULT 71

SECTION 10.1. Payment 71

SECTION 10.2. Misrepresentation 71

SECTION 10.3. [Reserved] 71

SECTION 10.4. Liens 71

SECTION 10.5. Covenant Breaches 71

SECTION 10.6. Judgments 71

SECTION 10.7. Insolvency 71

SECTION 10.8. Material Adverse Effect 71

SECTION 10.9. The Administrative Agent’s Lien Priority 72

SECTION 10.10. Breaches under Material Business Agreements 72

SECTION 10.11. Cross Default 72

SECTION 10.12. Change of Control 72

SECTION 10.13. Invalidity 72

SECTION 10.14. Destruction of Collateral 72

SECTION 10.15. Guarantor Repudiation 72

SECTION 10.16. Indictment; Forfeiture 72

SECTION 10.17. Hedging Contracts 72

SECTION 10.18. Intercreditor Agreements 72

ARTICLE XI. ▇▇▇▇▇▇’S RIGHTS AND REMEDIES AFTER AN EVENT OF DEFAULT 73

SECTION 11.1. Rights and Remedies 73

SECTION 11.2. No Waiver 74

ARTICLE XII. ▇▇▇▇▇▇▇ AND JUDICIAL PROCEEDINGS 74

SECTION 12.1. Notice Waiver 74

SECTION 12.2. Delay 75

SECTION 12.3. Jury Waiver 75

ARTICLE XIII. EFFECTIVE DATE AND TERMINATION 75

SECTION 13.1. Term 75

SECTION 13.2. Termination 76

ARTICLE XIV. LOAN PARTY REPRESENTATIVE 76

SECTION 14.1. Appointment and Relationship 76

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SECTION 14.2. Authority 76

SECTION 14.3. Notices 77

SECTION 14.4. Joint and Several Obligations. 77

SECTION 14.5. Cross Guaranty. 78

SECTION 14.6. Waivers 80

ARTICLE XV. MISCELLANEOUS 80

SECTION 15.1. Governing Law. 80

SECTION 15.2. Location of Closing 81

SECTION 15.3. Entire Understanding; Waivers of Defaults; Amendments 81

SECTION 15.4. Transfers and Assignments. 82

SECTION 15.5. Payment Application 85

SECTION 15.6. Expenses; Indemnity 85

SECTION 15.7. Notice 86

SECTION 15.8. Survival 87

SECTION 15.9. Severability 87

SECTION 15.10. Consequential Damages 87

SECTION 15.11. Counterparts and Electronic Signatures 88

SECTION 15.12. Construction 88

SECTION 15.13. Confidentiality and Sharing Information. 88

SECTION 15.14. USA Patriot Act 88

SECTION 15.15. Creditor-Debtor Relationship 89

SECTION 15.16. Publicity 89

SECTION 15.17. Conflict 89

SECTION 15.18. FINAL AGREEMENT 90

SECTION 15.19. Certain ERISA Matters. 90

SECTION 15.20. Acknowledgement and Consent to Bail-In of Affected Financial Institutions 91

SECTION 15.21. Erroneous Payments. 92

ARTICLE XVI. THE ADMINISTRATIVE AGENT. 94

SECTION 16.1. Appointment of the Administrative Agent 94

SECTION 16.2. Nature of Duties of the Administrative Agent 94

SECTION 16.3. Lack of Reliance on the Administrative Agent 95

SECTION 16.4. Certain Rights of the Administrative Agent 95

SECTION 16.5. Reliance by the Administrative Agent 95

SECTION 16.6. The Administrative Agent in its Individual Capacity 96

SECTION 16.7. Successor Administrative Agent. 96

SECTION 16.8. Withholding Tax 96

SECTION 16.9. The Administrative Agent May File Proofs of Claim. 96

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SECTION 16.10. Authorization to Execute Other Loan Documents 97

SECTION 16.11. Collateral and Guaranty Matters 97

SECTION 16.12. Right to Realize on Collateral and Enforce Guarantee 98

SECTION 16.13. Liens 98

 

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SCHEDULES AND EXHIBITS

Schedule I	Commitment Amounts
Schedule 1.2(a)	Owned Real Property
Schedule 1.2(b)	Liens
Schedule 1.2(c)	ABL Deposit Accounts
Schedule 1.2(d)	Excluded Deposit Accounts
Schedule 1.2(e)	Permitted Restructuring Transactions
Schedule 2.10	Adjusted EBITDA
Schedule 4.5	Inventory Locations
Schedule 4.15(c)	Loan Parties’ States of Organization and Chief Executive Offices
Schedule 5.2	Incorporation/Organization/Foreign Qualification/Subsidiaries
Schedule 5.3(a)	Officers, Directors, Shareholders, Capitalization
Schedule 5.3(b) Schedule 5.3(c)	Issued and Outstanding Equity Interests Options, Warrants, Calls, and Commitments
Schedule 5.4	No Governmental Approval; No Conflict
Schedule 5.7	Organization Name
Schedule 5.8(b)	Environmental
Schedule 5.9(b)	Litigation
Schedule 5.10	Patents, Trademarks, Copyrights, and Licenses
Schedule 5.19	Material Business Agreements
Schedule 6.8	Accounts
Schedule 6.11	Post-Closing Matters
Schedule 7.4	Investments
Schedule 7.5	Loans
Schedule 7.8	Indebtedness
Schedule 7.10	Affiliate Transactions
Exhibit A Exhibit B	Form of Compliance Certificate Form of Assignment and Acceptance

 

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CREDIT AND SECURITY AGREEMENT

This Credit and Security Agreement (this “Agreement”) is entered into as of April 19, 2024 (the “Closing Date”) among Danimer Scientific, Inc., a Delaware corporation (“DSI”), Meredian Holdings Group, Inc., a Delaware corporation (“MHG”), Danimer Scientific Holdings, LLC, a Delaware limited liability company (“Holdings”), Meredian, Inc., a Georgia corporation (“Meredian”), Danimer Scientific, L.L.C., a Georgia limited liability company (“Danimer”), Danimer Bioplastics, Inc., a Georgia corporation (“DBP”), Danimer Scientific Kentucky, Inc., a Delaware corporation (“DSK”, and together with DSI, MHG, Holdings, Meredian, Danimer, DBP and each other Person that joins this Agreement from time to time as a Borrower, each a “Borrower” and collectively the “Borrowers”), and the other Loan Parties (used herein as defined below) party hereto from time to time, the financial institutions party hereto from time to time as lenders (the “Lenders”), and ABL OPCO LLC, a Delaware limited liability company, in its capacity as administrative agent for the Lenders (together with its successors and assigns in such capacity, the “Administrative Agent”). For good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Loan Parties, the Lenders, and the Administrative Agent agree as follows:

“ABL Priority Collateral” shall have the meaning given to such term in the Intercreditor Agreement.

“ABL Priority Deposit Accounts” means all Deposit Accounts relating to ABL Priority Collateral (as defined in the Intercreditor Agreement) (and all cash, checks and other negotiable instruments, funds and other evidences of payment held therein) listed on Schedule 1.2(c) hereto.

“Accommodation Payment” is defined in Section 14.4(d).

“Adjusted EBITDA” means, for any fiscal period, the sum of (1) net income (or loss) for that period; plus (2) all interest expense for that period; plus (3) all charges against (or minus credits to) income for federal, state, and local income or similar taxes for that period; plus (4) depreciation expense and amortization expenses for that period; plus (5) non-cash compensation expense for stock options, restricted stock or other equity-based compensation; plus (6) Cash Litigation Expenses; plus (7) non-cash extraordinary, unusual or non-recurring expenses, expenditures or losses (including losses on asset sales (other than Inventory sold in the ordinary course of business)) and other non-cash expenses or losses for that period (including with respect to debt forgiveness); minus (8) non-cash extraordinary, unusual or non-recurring income, receipts or gains (including gains on asset sales (other than Inventory sold in the ordinary course of business)) and other non-cash income, receipts or gains for that period (including with respect to debt forgiveness); in all cases calculated on a consolidated basis for DSI.

“Administrative Agent” is defined in the preamble.

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“Administrative Agent Holding Account” means (a) initially, the deposit account ending in x54636 and maintained at ▇▇▇▇▇ Fargo Bank, National Association in the name of Administrative Agent, and (b) thereafter, any other deposit account in the name of Administrative Agent of which Administrative Agent may advise the Loan Party Representative from time to time.

“Advances” means the Revolving Loans.

“Affected Financial Institution” shall mean (a) any EEA Financial Institution or (b) any UK Financial Institution.

“Affiliate” of any Person means (1) any Person that, directly or indirectly, controls, is controlled by, or is under common Control with that Person or (2) any Person that is a director or officer (x) of that Person, (y) of any Subsidiary of that Person, or (z) of any Person described in clause (1) above. For purposes of this definition only, Control of a Person means the power, directly or indirectly, (x) to vote more than 10% of the securities having ordinary voting power to elect directors of that Person, or (y) to direct or cause the direction of the management and policies of that Person whether by contract or otherwise.

“Agent Advances” is defined in Section 2.4(b).

“Aggregate Commitment” means the Revolving Commitments.

“Agreement” is defined in the preamble.

“Allocable Amount” is defined in Section 14.4(d).

“Anti-Corruption Laws” means 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 Laws” means all laws, rules, regulations or sanctions relating to terrorism or money- laundering, (including Executive Order No. 13224, the USA Patriot Act, the Bank Secrecy Act (Public Law 91-508), the Trading with the Enemy Act (50 U.S.C. Section 1 et seq.), the International Emergency Economic Powers Act (50 U.S.C. Section 1701 et seq.), and the related sanction regulations promulgated by the Office of Foreign Assets Control, as well as laws relating to prevention and detection of money laundering in 18 U.S.C. Sections 1956 and 1957).

“Applicable Lending Office” shall mean, for each Lender and for each Loan, the office of such Lender (or Affiliate of such Lender) as such Lender may from time to time specify to the Administrative Agent and the Loan Party Representative as the office by which its Loans are to be made and maintained.

“Applicable Margin” means 7.00%.

“Applicable Unused Facility Fee Percentage” means 0.50% per annum.

“Approved Electronic Communication” means each notice, demand, communication, information, document and other material transmitted, posted or otherwise made or communicated by email, facsimile, or any other equivalent electronic service agreed to by the Administrative Agent, whether owned, operated or hosted by the Administrative Agent, any of its Affiliates, or any other Person, that any party is obligated to, or otherwise chooses to, provide to the Administrative Agent under any Loan Document (including any financial statement, financial and other report, notice, request, certificate and other information material). Approved Electronic Communications does not, however, include any notice, demand, communication,

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information, document, or other material that the Administrative Agent specifically instructs a Person to deliver in physical form.

“Approved Fund” shall mean any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (i) the Administrative Agent or a Lender, (ii) an Affiliate of the Administrative Agent or a Lender or (iii) an entity or an Affiliate of an entity that administers or manages the Administrative Agent or a Lender.

“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender and an assignee (with the consent of the Administrative Agent if required by Section 15.4(b)) and accepted by the Administrative Agent, in the form attached as Exhibit B or otherwise in form and substance approved by the Administrative Agent.

“Authority” is defined in Section 4.18(b).

“Authorized Officer” means a Person’s president, chief executive officer, chief financial officer, vice president or any other officer approved by the Administrative Agent in its Discretion.

“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.

“Bail-In Legislation” shall mean (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).

“Bankruptcy Code” means Title 11 of the United States Code or any similar federal or state debtor relief laws.

“Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Federal Funds Rate in effect on such day plus 1.00%, (ii) the Prime Rate in effect on such day, and (iii) Term SOFR for a one-month tenor plus 1.00% (100 basis points); provided, further, that if the Base Rate determined as provided above shall be less than the Floor, then the Base Rate shall be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. Any change in the Base Rate due to a change in the Prime Rate shall be effective on the effective day of such change in the Prime Rate.

 

“Base Rate Loan” means a Loan (including without limitation and without duplication, the portion of the Revolving Principal Amount treated as a Base Rate Loan for purposes of the interest provisions in Article III) bearing interest at a rate determined by reference to the Base Rate.

“Benchmark” means, initially, Term SOFR; provided that if a Benchmark Transition Event has occurred with respect to the Term SOFR 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 ‎3.10.

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“Benchmark Replacement” means, with respect to any Benchmark Transition Event, the sum of: (a) the alternate benchmark rate (which may include Term SOFR of a different tenor) that has been selected by the Administrative Agent 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 to the then-current Benchmark for Dollar-denominated credit facilities and (b) the related Benchmark Replacement Adjustment; provided that if such Benchmark Replacement as so determined would be less than the Floor, such Benchmark Replacement shall be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent, giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for Dollar-denominated credit facilities at such time.

“Benchmark Replacement Conforming Changes” means, with respect to Term SOFR or any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent determines may be appropriate to reflect the adoption and implementation of Term SOFR or such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of Term SOFR or the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement).

“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark:

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“Benchmark Transition Event” means, with respect to any current Benchmark, the occurrence of one or more of the following events with respect to the then-current Benchmark:

“Benchmark Transition Start Date” means, in the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the ninetieth (90th) day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than ninety (90) days after such statement or publication, the date of such statement or publication).

“Benchmark Unavailability Period” means the period (if any) (a) beginning at the time that a Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Documents in accordance with Section 3.10 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Documents in accordance with Section ‎3.10.

“Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation.

 

“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

“Board of Directors” means (a) with respect to any corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of and in lieu of such board for all purposes, (b) with respect to a partnership, the board of directors of the general partner of the partnership, (c) with respect to a limited liability company, the sole member, managing member or members or any controlling committee thereof (if member managed) or board of managers or sole manager (if manager managed) of such company, and (d) with respect to any other Person, the board or committee of such Person serving a similar function.

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“Board of Governors” means the Board of Governors of the United States Federal Reserve System or the Federal Reserve Bank of New York.

“Borrower” and “Borrowers” are defined in the preamble.

“Borrowing Base” means, at any time, the sum of (1) up to 90% of each Borrower’s Eligible Accounts; plus (2) determined on a category-by-category and Borrower-by-Borrower basis, the product of 85% multiplied by the Net Orderly Liquidation Value of each Borrower’s Eligible Inventory; minus (3) Reserves. The Administrative Agent may in its Discretion reduce the advance rates, adjust Reserves, or reduce one or more of the elements used to compute the Borrowing Base.

“Borrowing Base Certificate” means a certificate executed by a Loan Party Representative’s Authorized Officer that is appropriately completed and in the form approved by the Administrative Agent from time to time in its Discretion.

“Business Day” means any day other than Saturday, Sunday, or a legal holiday on which commercial banks are authorized or required by law to be closed in New York.

“Capital Expenditures” means any expenditure made or liability incurred for the acquisition of fixed assets, or any improvements, replacements, substitutions or additions thereto with a useful life of more than one year or which, in accordance with GAAP, would be classified as capital expenditures.

“Cash Concentration Account” means a Loan Party’s commercial deposit account maintained at a financial institution selected by the Administrative Agent that is designated by the Administrative Agent as a Cash Concentration Account. The funds in each such account are the Administrative Agent’s sole and exclusive property and may only be withdrawn by the Administrative Agent.

“Cash Litigation Expenses” means all fees, costs, expenses and other cash expenditures of the Borrowers in connection with any litigation to which a Borrower is a party in an aggregate amount not to exceed $500,000.

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.).

“Change in Law” means the occurrence, after the date of this Agreement of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Body or (c) the making or issuance of, or compliance by any Lender or its Applicable Lending Office with, any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Body; provided that notwithstanding anything herein to the contrary, (x) the ▇▇▇▇-▇▇▇▇▇ Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank 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.

“Change of Control” means, except for a Permitted Restructuring Transaction, any of the following:

(1) the acquisition by any Person or group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act), including any group acting for the purpose of acquiring, holding or disposing of securities (within the meaning of Rule 13d-5(b)(1) under the

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Exchange Act (but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor and (ii) Jefferies, any affiliate thereof or any successor owner of any Equity Interest of DSI previously held by Jefferies, in a single transaction or in a related series of transactions, including by way of merger, amalgamation, consolidation or other business combination or purchase, of beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of Equity Interest of DSI representing directly or indirectly more than 50% of the total voting power of all of the outstanding voting stock of DSI;

(2) a majority of the members of the Board of Directors of DSI cease to be composed of individuals (i) who were members of that Board of Directors on the date of this Agreement, (ii) whose election or nomination to the Board of Directors was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that Board of Directors or (iii) whose election or nomination to that Board of Directors was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that Board of Directors (excluding, in the case of both clauses (ii) and (iii) any individual whose initial nomination for, or assumption of office as, a member of that Board of Directors occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by a person or group other than a solicitation for the election of one or more directors by or on behalf of that Board of Directors);

(3) MHG ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in Holdings and the current power (whether or not exercised) to elect a majority of the members of the board of managers or members of Holdings

(4) Holdings ceases to own and control, beneficially and of record, directly or indirectly, all Equity Interests in all other Loan Parties;

(5) the sale of all or substantially all of any Loan Party’s assets except to extent permitted hereunder;

(6) any Loan Party does not own at least 100% of the outstanding voting Equity Interests of any other Loan Party that it owns as of the Closing Date;

or

(7) a “Change of Control” has occurred under the Term Loan Agreement.

“Charges” means all of the following imposed on any Collateral or any Loan Party by any taxing or other similar Governmental Body, domestic or foreign (including the Pension Benefit Guaranty Corporation or any environmental agency or superfund): all taxes, charges, fees, imposts, levies, or other assessments (including with respect to net income, gross income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, profits, inventory, capital stock, license, withholding, payroll, employment, social security, unemployment, excise, severance, stamp, occupation and property taxes, custom duties, fees, assessments, Liens, claims, and charges), together with any interest and any penalties, additions to tax, or additional amounts.

“Charter Documents” means, as to any Person (other than a natural person), the charter, certificate, or articles of incorporation or organization, by-laws, regulations, general or limited partnership agreement,

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limited partnership certificate, formation certificate, operating agreement, and other similar organizational or governing documents.

“Closing Date” is defined in the preamble.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means

(i) at any time prior to the Discharge of the Term Loan Debt, the following personal property in which any Loan Party has any interest of any kind, whether now existing or arising or acquired or received by the Loan Parties in the future, and wherever located:

(ii) at any time after the Discharge of the Term Loan Debt, all personal property in which any Loan Party has any interest of any kind, whether now existing or arising or acquired or received by the Loan Parties in the future, and wherever located, including:

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“Commitment” shall mean a Revolving Commitment.

“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. Section 1 et seq.).

“Compliance Certificate” means a certificate of the Loan Parties signed by the Loan Party Representative’s Authorized Officer appropriately completed and in substantially the form of Exhibit A.

“Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate”, “SOFR”, the definition of “Business Day”, the definition of “U.S. Government Securities Business Day” or any similar

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or analogous definition, timing and frequency of determining rates and making payments of interest, timing of borrowing requests or other notices, the applicability and length of lookback periods, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of any such rate and to permit the use and administration thereof by the Administrative Agent in such manner as the Administrative Agent shall reasonably select.

“Consents” means all filings and all licenses, permits, consents, approvals, authorizations, qualifications, and orders of Governmental Bodies and other third parties, domestic or foreign, necessary to carry on any Loan Party’s business.

“Control” means possessing, directly or indirectly, the power to direct or cause the direction of the management or policies of a Person (whether through the ability to exercise voting power, by contract, or otherwise). “Controlling” and “Controlled” have correlative meanings.

“Control Agreement” means, with respect to any deposit account (other than any Excluded Account), securities account, commodity account, securities entitlement or commodity contract, an agreement, in form and substance satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and Loan Party maintaining such account, effective to grant “control” (within the meaning of Articles 8 and 9 under the applicable UCC) over such account to the Administrative Agent, for the benefit of the Secured Parties.

 

“Controlled Affiliate” of any Person means (1) any Person that, directly or indirectly, controls, is controlled by, or is under common Control with that Person or (2) any Person that is a director or officer (x) of that Person, (y) of any Subsidiary of that Person, or (z) of any Person described in clause (1) above. For purposes of this definition only, Control of a Person means the power, directly or indirectly, (x) to vote more than thirty three and one third percent (33.33%) of the securities having ordinary voting power to elect directors of that Person, or (y) to direct or cause the direction of the management and policies of that Person whether by contract or otherwise.

 

“Controlled Group” means all members of a controlled group of entities and all trades or businesses (whether or not incorporated) under common control which, together with any Person, are treated as a single employer under Section 414 of the Code.

“Credit Party” means each Loan Party.

“Danimer Investment Account” means the deposit account listed as the Danimer Investment Account on Schedule 1.2(d) hereto.

“Default” means an event that, with notice, the passage of time, or both, would be an Event of Default.

“Default Condition” means that either or both a Default and an Event of Default exist.

“Defaulting Lender” shall mean, subject to Section 2.13(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder, unless such Lender notifies the Administrative Agent and the Loan Party Representative in writing that such failure is the result of such ▇▇▇▇▇▇’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or to (ii) pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two (2) Business

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Days of the date when due; (b) has notified the Loan Party Representative and the Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such ▇▇▇▇▇▇’s obligation to fund a Loan hereunder and states that such position is based on such ▇▇▇▇▇▇’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied); (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Loan Party Representative, to confirm in writing to the Administrative Agent and the Loan Party Representative that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Loan Party Representative); or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Insolvency Proceeding, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Body so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Body) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.13(b)) upon delivery of written notice of such determination to the Loan Party Representative and each Lender.

“Default Rate” means a rate per annum equal to the lesser of (a) the sum of (i) the highest applicable interest rates, margins and fees in this Agreement plus (ii) 2% and (b) the Maximum Rate.

“Discharge of the Term Loan Debt” shall have the meaning given to such term in the Intercreditor Agreement so long as such discharge is in cash and not in connection with or in contemplation of any Insolvency Proceeding or refinancing of the Term Loan Debt.

“Discretion” means a determination made in good faith (a) in the exercise of the Administrative Agent’s reasonable business judgment from the perspective of a prudent, secured, non-bank asset-based lender and (b) in accordance with the Administrative Agent’s customary or generally applicable policies and procedures. The burden of establishing that the Administrative Agent did not act in its Discretion is on the Loan Parties.

“Disqualified Stock” means any Equity Interest that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event or condition, (a), matures or is mandatorily redeemable (other than solely for Qualified Stock) under a sinking fund obligation or otherwise (except as a result of a change of control or asset sale so long as any rights of the holders thereof upon the occurrence of a change of control or asset sale event shall be subject to, and expressly subordinated to, the prior repayment in full of the Loans and all other Obligations that are accrued and payable) , (b) is redeemable at the option of the holder thereof (other than solely for Qualified Stock), in whole or in part, (c) provides for the scheduled payments of dividends or distributions in Cash, or (d) is convertible into or exchangeable for (i) Indebtedness or (ii) any other Equity Interests that would constitute Disqualified Stock, provided, that (i) Equity Interests that would not constitute Disqualified Stock but for terms thereof giving holders thereof the right to require such Person to redeem or purchase such Equity Interests upon the occurrence of an “asset sale,” a “change of control” or similar event shall not constitute

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Disqualified Stock if any such requirement becomes operative only after repayment in full in cash of all the Loans and all other Obligations that are accrued and payable and the termination of the Commitments and (ii) if Equity Interests are issued pursuant to any plan for the benefit of employees of the Borrower or any of the Subsidiaries or by any such plan to such employees, such Equity Interests shall not constitute Disqualified Stock solely because it may be required to be repurchased by the Borrower or any of the Subsidiaries in order to satisfy applicable statutory or regulatory obligations of the Borrower or any of its Subsidiaries.

“▇▇▇▇-▇▇▇▇▇ Act” means the ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇ Street Reform and Consumer Protection Act (Pub. L. 111-203, H.R. 4173).

“Dollar” and the sign “$” means lawful money of the United States of America.

“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.

“DSI” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“DSKY Intercreditor” means that certain Subordination Agreement, by and among Danimer Scientific Kentucky, Inc., Administrative Agent and the requisite lenders and/or agents for the DSKY NMTC Transaction, as the same may be amended, modified or supplemented in accordance with its terms.

“DSKY NMTC Consents” means the consents granted to Danimer Scientific Kentucky, Inc., by the requisite lenders and/or agents for the DSKY NMTC Transaction permitting Danimer Scientific Kentucky, Inc. to enter into the Agreement as a Loan Party and a Guarantor and all other applicable Loan Documents.

 

“DSKY NMTC Transaction” means the QLICI Loan and Security Agreement, dated as of November 7, 2019 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and between Danimer Scientific Kentucky, Inc., and AmCREF Fund 51, LLC.

 

“EEA Financial Institution” shall mean (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clause (a) or (b) of this definition and is subject to consolidated supervision with its parent.

“EEA Member Country” shall mean any of the member states of the European Union, Iceland, Liechtenstein and Norway.

“EEA Resolution Authority” shall mean any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

“Eligible Accounts” means, at any time, Accounts owned by a Borrower that the Administrative Agent determines in its Discretion are Eligible Accounts. Without limiting the Administrative Agent’s Discretion, Eligible Accounts do not include any Account:

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In determining the amount of Eligible Accounts, the Administrative Agent may reduce the face amount of Accounts by (1) all accrued and actual discounts, claims, credits, pending credits, promotional program allowances, price adjustments, finance charges, or other allowances (including any amount that a Loan Party may be obligated to rebate to an Account Debtor under any agreement or understanding (written or oral)) and (2) the aggregate amount of all cash received with respect to Accounts but not yet applied by Borrowers to reduce Accounts.

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“Eligible Inventory” means, at any time, Inventory owned by a Borrower that the Administrative Agent determines in its Discretion is Eligible Inventory. Without limiting the generality of the immediately preceding sentence, Inventory may not be Eligible Inventory unless it meets all the following minimum requirements:

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“Environmental Complaint” is defined in Section 4.18(b).

“Environmental Laws” means all federal, state, and local environmental, land use, zoning, health, chemical use, safety, and sanitation laws, statutes, ordinances, and codes related to protecting the environment or governing the use, storage, treatment, generation, transportation, processing, handling, production, or disposal of Hazardous Substances and the rules, regulations, policies, guidelines, interpretations, decisions, orders, and directives issued by Governmental Bodies with respect to these matters.

“Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust, or other equity ownership interests in a Person (and any warrants, options, or other rights entitling the holder to purchase or acquire any equity ownership interest), but excluding any debt securities convertible into any of the foregoing.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means an entity, whether or not incorporated, that is under common control with a Borrower within the meaning of Section 4001 of ERISA or is part of a group that includes a Borrower and that is treated as a single employer under Section 414 of the Code.

“Erroneous Payment” is defined in Section 15.22.

 

“Erroneous Payment Deficiency Assignment” is defined in Section 15.22.

“Erroneous Payment Impacted Class” is defined in Section 15.22.

“Erroneous Payment Return Deficiency” is defined in Section 15.22.

“Erroneous Payment Subrogation Rights” is defined in Section 15.22.

“EU Bail-In Legislation Schedule” shall mean the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.

“Event of Default” is defined in Article 10.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Excluded Accounts” means Deposit Accounts (i) used solely to fund payroll, retirement plans and employees benefits or healthcare benefits or as a withholding tax, trust or fiduciary account, (ii) the Reserve Account (as defined in the DSKY Intercreditor), (iii) the Interest Reserve Account and Insurance Premium Reserve Account (as each is defined in the Term Loan Agreement), (iv) escrow accounts, or (v) listed on Schedule 1.2(d) hereto; provided that, at any time after the Discharge of the Term Loan Debt, Excluded Accounts shall not include the Danimer Investment Account.

“Excluded Hedging Obligations” means, with respect to any Guarantor, any Hedging Obligation if, and solely to the extent that, all or a portion of a Guarantor’s Guaranty of, or the grant by that Guarantor of a Lien under the Loan Documents to secure, the Hedging Obligations (or any guarantee thereof) is or becomes illegal or unlawful under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission by virtue of that Guarantor’s failure for any reason to constitute an “eligible contract participant” (as defined in the Commodity Exchange Act as of the date of that Guaranty

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or the grant of a Lien would otherwise have become effective with respect to such related Hedging Obligation). If a Hedging Obligation arises under a master agreement governing more than one swap, the exclusion applies only to the portion of the Hedging Obligation that is attributable to swaps for which the Guaranty or security interest is or becomes illegal.

“Excluded Taxes” shall mean any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its Applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Commitment or (ii) such Lender changes its Applicable Lending Office, except in each case to the extent that, pursuant to Section 2.12, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Applicable Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.12 and (d) any U.S. federal withholding Taxes imposed under FATCA.

“Executive Order No. 13224” means the Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001.

“Existing Convertible Notes” means the 3.250% Convertible Senior Notes due 2026 in the maximum principal amount of $240,000,000 and issued by the DSI pursuant to the Indenture.

 

“Expenses” means all reasonable fees, costs, expenses, charges, and out-of-pocket disbursements incurred by the Administrative Agent and its outside counsel and, where applicable, any Lender, and court costs, in any way arising from or in connection with the Loan Documents, any Collateral (including reasonably and necessary costs and expenses to preserve and protect Collateral), any Obligations, or the business relationship between the Administrative Agent (or any Lender, as applicable) and any Credit Party, including: (1) all reasonable costs, expenses, and fees incurred by the Administrative Agent or its agents in connection with any field examination (and the Credit Parties will reasonably cooperate with the examiners and make their books and records reasonably available for examination in connection therewith) permitted to be conducted under this Agreement; (2) all the Administrative Agent’s and its outside counsels’ reasonable fees and expenses (including search fees, filing fees, recording fees and insurance policy fees) to prepare, examine, conduct due diligence with respect to, approve, negotiate, execute, and deliver, and close the transactions contemplated by the Loan Documents; (3) all reasonable fees and out-of-pocket disbursements incurred by the Administrative Agent (including outside counsel attorneys’ fees) arising from or in connection with (x) any action taken by the Administrative Agent (or any Lender, as applicable) to monitor, advise, administer, enforce, or collect any Obligations, any Loan Documents, or any other present or future documents or agreements between the Administrative Agent (or any Lender, as applicable) and any one or more of the Credit Parties (including without limitation good standing certificates), (y) the business relationship between the Administrative Agent and any Credit Party, and (z) background checks regarding senior management, principals, or key investors, as the Administrative Agent determines in its Discretion; (4) all reasonable out-of-pocket expenses and fees (including outside counsel attorneys’ fees) incurred in relation to, in connection with, in defense of, or in prosecution of any litigation (including any actions to lift the automatic stay or to otherwise in any way monitor or participate in any Insolvency Proceeding involving a Credit Party) related to the Obligations, the Loan Documents, the Collateral, or any Credit Party (including any litigation instituted by a Credit Party or any third party, any so called “lender liability” action, any claim and delivery or other action for possession of, or foreclosure on, any of the

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Collateral, post judgment enforcement of any rights or remedies (including enforcing judgments and prosecuting appeals whether discretionary or as of right and whether in connection with pre judgment or post judgment matters)); (5) all reasonable costs, expenses, and fees incurred by the Administrative Agent or its agents in connection with any appraisals or environmental assessments (and the Credit Parties will reasonably cooperate with the appraisers and inspectors and make their property reasonably available for appraisal and inspection in connection therewith) permitted to be conducted under this Agreement; and (6) all reasonable costs, expenses, and fees incurred by the Administrative Agent or its counsel in connection with consultants, expert witnesses, restructuring advisors, or other professionals retained by the Administrative Agent or its counsel to assist, advise, or give testimony with respect to any matter relating to the Loan Documents, the Collateral, the Obligations, the Credit Parties, or the business relationship between the Administrative Agent and any one or more of the Credit Parties. The Credit Parties will receive summary invoices showing only the total amount due and the summary invoices may not contain any narrative description of the services provided (and Administrative Agent’s delivery of summary invoices does not waive any of Administrative Agent’s rights or privileges (including the attorney-client privilege) subject to reasonable inquiries relating thereto from the Loan Parties.

“Extraordinary Receipts” means any net cash proceeds received by any Loan Party or any of its Subsidiaries consisting of proceeds of insurance claims from Collateral.

 

“Federal Funds Rate” means, on any day, a fluctuating interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three (3) Federal funds brokers of recognized standing selected by it.

“Finance Lease Obligations” of any Person means that Person’s obligations to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as finance leases on that Person’s balance sheet under GAAP, and the amount of these obligations is the capitalized amount determined in accordance with GAAP.

“Financials” is defined in Section 3.1(d).

“Floor” means a per annum rate of interest equal to 3.00%.

“Foreign Lender” is defined in Section 2.12(g)(ii)(B).

“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.

“GAAP” means the generally accepted accounting principles established in the United States of America by the Financial Accounting Standards Board.

“Governmental Body” means any nation or government, any state or other political subdivision of a nation or government, or any entity exercising the legislative, judicial, regulatory, or administrative functions of or pertaining to a government.

“Guarantor” means each Person that guaranties all or any Obligations.

“Guaranty” or “Guarantee” of or by any Person means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other

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obligation of any other Person (the “Primary Obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect: (1) 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 its payment; (2) to purchase or lease property, securities, or services to assure the owner of such Indebtedness or other obligation of the payment of that Indebtedness; (3) 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 that Indebtedness or other obligation; or (4) as an account party in respect of any letter of credit or letter of guaranty issued to support that Indebtedness or obligation (but “Guaranty” does not include endorsements for collection or deposit in the ordinary course of business). For the avoidance of doubt, “Guaranty” includes any Guaranty Agreement.

“Guaranty Agreement” means each guaranty agreement, in form and substance satisfactory to the Administrative Agent, made by a Guarantor in favor of the Administrative Agent, for the benefit of the Secured Parties, pursuant to which such Guarantor Guarantees the payment and performance of the Obligations, in each case, as the same may be amended, restated, supplemented, or otherwise modified from time to time.

 

“Hazardous Discharge” is defined in Section 4.18(b).

“Hazardous Substance” means, without limitation, any flammable explosives, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum products, methane, hazardous materials, Hazardous Wastes, hazardous or Toxic Substances, or related materials as defined in CERCLA, the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), RCRA, or other applicable Environmental Law.

“Hazardous Wastes” means all waste materials regulated by CERCLA, RCRA, or applicable state law, and any other applicable federal and state laws relating to hazardous waste disposal.

“Hedging Contracts” means any foreign exchange contract, currency swap agreement, futures contract, commodities hedge agreement, interest rate protection agreement, interest rate future agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, option agreement, or any other similar hedging agreement or arrangement.

“Hedging Obligations” means a Person’s liabilities under Hedging Contracts.

“Holdings” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Increased Tax Burden” means the additional federal, state, or local taxes assumed to be payable by a Pass-Through Owner of a Pass-Through Loan Party due to its status as a Pass-Through Loan Party, as evidenced and substantiated by the tax returns filed by that Pass-Through Owner (with these taxes calculated for all Pass-Through Owners at the highest federal and state marginal rates applicable to any Pass-Through Owner and taking into account losses previously allocated to each Pass-Through Owner by that Pass-Through Loan Party to the extent those losses have not previously been applied to reduce the Increased Tax Burden (but (1) capital losses and capital loss carry forwards are taken into account only to the extent they are currently usable to offset income or gain allocated by that Pass-Through Loan Party to a Pass-Through Owner and (2) to the extent that any losses allocated by that Pass-Through Loan Party result in a payback by a Pass-Through Owner to that Pass-Through Loan Party of previous tax distributions in accordance with this Agreement then those losses are not taken into account for purposes of determining the Increased Tax Burden)).

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“Indebtedness” of any Person means, as of any date: (1) that Person’s obligations for borrowed money or similar obligations; (2) that Person’s Finance Lease Obligations; (3) that Person’s obligations that are secured by any Lien on any of its assets or property, whether or not the secured obligation has been assumed by that Person; (4) except for trade accounts payable arising in the ordinary course of business that are not more than ninety (90) days past due, that Person’s obligations for the unpaid purchase price for goods, property, or services; (5) [reserved]; (6) for Hedging Obligations, or other similar transactions (valued in an amount equal to the highest termination payment, if any, that would be payable by that Person upon termination for any reason on the determination date); (7) that Person’s obligations for outstanding reimbursement and similar obligations under letters of credit, bankers acceptances, and similar instruments; (8) the aggregate outstanding amount of all Off-Balance Sheet Liabilities (based on the aggregate outstanding amount as if the transaction were structured as a secured loan and an on balance sheet financing, whether or not shown as a liability on a consolidated balance sheet of the Person); and (9) that Person’s direct or indirect guaranty obligations for Indebtedness of other Persons described in the preceding clauses (based on the maximum amount that may be payable under such guaranty).

“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 any Loan Party under any Loan Document and (ii) to the extent not otherwise described in (i), Other Taxes.

“Indenture” means that certain Indenture, dated as of December 21, 2021, by and among, as DSI, as issuer, and U.S. Bank National Association, as Trustee, governing the Existing Convertible Notes.

“Insolvency Proceeding” means any proceeding under any provision of the Bankruptcy Code or under any other bankruptcy or insolvency law (including assignments for the benefit of creditors, formal or informal moratoria, compositions, or proceedings seeking reorganization, liquidation, arrangement, or other similar relief).

“Intellectual Property” means patents, patent rights, patent applications, copyrights, works that are the subject matter of copyrights, copyright registrations, trademarks, trade names, trade styles, trademark and service mark applications, and licenses and rights to use any of the preceding, all extensions, renewals, reissues, divisions, continuations, and continuations-in-part of any of the preceding, all rights to sue for past, present, and future infringement of any of the preceding, inventions, trade secrets, formulae, processes, compounds, drawings, designs, blueprints, surveys, reports, manuals, and operating standards, goodwill, customer and other lists, trade secret rights, copyright rights, rights in works of authorship, and contract rights relating to computer software programs.

“Intercompany Debt (Loan Party)” shall mean Indebtedness owing from (i) any Loan Party to (ii) another Loan Party.

“Intercompany Debt (Non-Loan Party)” shall mean Indebtedness owing from (i) any Loan Party to (ii) any direct or indirect Subsidiary of DSI which is not a Loan Party, in each case, which shall be subject to the Intercompany Debt Subordination Agreement.

“Intercompany Debt Subordination Agreement” shall mean a subordination agreement by and among the Loan Parties, their direct or indirect Subsidiaries and Lender in form and substance satisfactory to Administrative Agent.

“Intercreditor Agreement” means (a) that certain Intercreditor Agreement dated on or about the Closing Date among Administrative Agent, the Loan Parties, and the Term Loan Agent, as the same may be amended, restated, supplemented, or otherwise modified from time to time pursuant to the terms thereof.

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“Inventory Report” means monthly perpetual Inventory certification reports by location, listing Inventory by category, SKU and location as of month end, with a separate break out of Inventory in the free-trade-zone portion of a Borrower’s Permitted Warehouses.

“Jefferies” means Jefferies Funding LLC, a Delaware limited liability company.

“Lien” means any mortgage, deed of trust, pledge, hypothecation, assignment, security interest, lien (whether statutory or otherwise), Charge, claim, encumbrance, preference, priority, or other security agreement or preferential arrangement held or asserted with respect to any asset of any kind or nature including any conditional sale or other title retention agreement, any lease having substantially the same economic effect as any of the preceding, and the filing of, or agreement to give, any financing statement under the UCC or comparable law of any jurisdiction.

“Loan” means each Revolving Loan (including any Agent Advances); and “Loans” means all Revolving Loans.

“Loan Account” is defined in Section 2.6.

“Loan Documents” means this Agreement, the Perfection Certificate, each Borrowing Base Certificate, each Compliance Certificate, the Waivers, each Guaranty Agreement, each Intercreditor Agreement, the Intercompany Debt Subordination Agreement, the DSKY Intercreditor, each Control Agreement any Hedging Contracts, and any and all other agreements, promissory notes, instruments and documents, including guaranties, pledges, powers of attorney, consents, and all other writings before, now, or later executed by any Credit Party or delivered to the Administrative Agent or any Lender with respect to the transactions contemplated by the Loan Documents.

“Loan Party” means each Borrower and each Guarantor.

“Loan Party Representative” means DSI.

“Loan Shortfall” means the difference of (a) fifty percent (50%) of the lesser of (i) the Revolving Commitments and (ii) the Borrowing Base as reduced by the minimum amount of Undrawn Availability required to be maintained pursuant to Section 2.10, minus (b) aggregate Revolving Exposure.

“Management Fees” means 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” means 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 hereby.

“Manager” means Meredian Holdings Group, Inc., a Delaware corporation, in its capacity as manager under the Management Services Agreement.

“Material Adverse Effect” means a material adverse effect in or on: (1) any Loan Party’s financial condition, operational results, or business; (2) any Loan Party’s ability to pay or perform any of its respective obligations in accordance with their terms; (3) the value of the Collateral, the Administrative Agent’s Liens on the Collateral, or the priority of the Administrative Agent’s Lien on any Collateral; (4) the validity or enforceability of any Loan Document or the Administrative Agent’s rights or remedies under

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any Loan Document; or (5) or the material rights, remedies and benefits available to, or conferred upon, the Administrative Agent and any Lender under this Agreement, or the Loan Documents, taken as a whole.

“Material Business 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; or (iv) 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 reasonably be expected to have a Material Adverse Effect.

“Maturity Date” means the earliest of (a) the Termination Date, (b) the date on which the Revolving Commitments are reduced to zero or otherwise terminated, or (c) at least three (3) months prior to the earliest Term Loan Maturity Date (as defined in the Term Loan Agreement).

“Maximum Borrowing Amount” means, (a) at any time the balance of the Danimer Investment Account is $0 or less, an amount equal to the lesser of (i) the Revolving Commitments and (ii) the Borrowing Base as reduced by the minimum amount of Undrawn Availability required to be maintained pursuant to Section 2.10; and (b) at any time the balance of the Danimer Investment Account is greater than $0, an amount equal to the least of (i) fifty percent (50%) of the Revolving Commitments, (ii) fifty percent (50%) of the Borrowing Base as reduced by the minimum amount of Undrawn Availability required to be maintained pursuant to Section 2.10, and (iii) the aggregate balance of the ABL Priority Deposit Accounts as such amount shall fluctuate from time to time, including, without limitation, pursuant to Section 2.1(b).

“Maximum Rate” means the maximum rate of interest permitted under applicable law from time to time in effect.

"MHG” has the meaning assigned to such term in the introductory paragraph of this Agreement.

“Multiemployer Plan” means a “multiemployer plan” as defined in Sections 3(37) and 4001(a)(3) of ERISA.

“Net Orderly Liquidation Value” means the orderly liquidation value (net of costs and expenses estimated to be incurred in connection with such liquidation) of Borrowers’ Inventory, determined on a category by category basis, that is estimated to be recoverable in an orderly liquidation as determined from time to time by reference to the most recent Inventory appraisal of such property delivered to the Administrative Agent by an appraiser acceptable to the Administrative Agent in its discretion. Net Orderly Liquidation Value is expressed as a percentage of the respective appraised values of types of Eligible Inventory.

“New Convertible Notes” is defined in Section 7.8(k).

“Non-Defaulting Lender” shall mean, at any time, a Lender that is not a Defaulting Lender.

“Notice” is defined in Section 15.7.

“Obligations” means any and all loans, advances (including Agent Advances), debts, liabilities, obligations, covenants, and duties (absolute, contingent, matured, or unmatured) owing by any one or more of the Credit Parties to the Administrative Agent (or to any of its direct or indirect Subsidiaries or Affiliates) or any Lender (or to any of their respective direct or indirect Subsidiaries or Affiliates) of any kind or

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nature, present or future (including any interest accruing after maturity or the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization, or similar proceeding relating to any Credit Party, whether a claim for post filing or postpetition interest is allowed in that proceeding), whether evidenced by any note, Guaranty, or other instrument, whether arising under any agreement, instrument, or document (including the Loan Documents), whether for the payment of money, whether arising by reason of extending credit, opening a letter of credit, loan, equipment lease, or guarantee, under any Hedging Contract (other than, with respect to any Guarantor, the Excluded Hedging Obligations of that Guarantor, if any), out of the Administrative Agent’s or any Lender’s non-receipt of or inability to collect funds or otherwise not being made whole in connection with depository transfer check or other similar arrangements, or obligations pursuant to Administrative Agent’s Erroneous Payment Subrogation Rights, whether direct or indirect (including those acquired by assignment or participation), absolute or contingent, joint or several, due or to become due, now existing or hereafter arising, contractual or tortious, liquidated or unliquidated, regardless of how such indebtedness or liabilities arise or by what agreement or instrument they may be evidenced or whether evidenced by any agreement or instrument, including any and all of each Credit Party’s Indebtedness and liabilities under the Loan Documents or under any other agreement between the Administrative Agent or any Lender and any Credit Party and any amendments, extensions, renewals, or increases and all Expenses the Administrative Agent or any Lender, as applicable, incurs in the documentation, negotiation, modification, enforcement, collection, or otherwise in connection with any of the preceding, and all obligations of any Credit Party to the Administrative Agent or any Lender to perform acts or refrain from taking any action.

“Off-Balance Sheet Liability” of a Person means: (1) any obligation under a sale and leaseback transaction that is not a finance lease; (2) any so-called “synthetic lease” or “tax ownership operating lease” transaction; (3) the amount of obligations outstanding under any asset securitization or similar transaction on any determination date that would be characterized as principal if that asset securitization or similar transaction were structured as a secured lending transaction rather than as a purchase; or (4) any other transaction (excluding operating leases for purposes of this clause (4)) that is the functional equivalent of or takes the place of borrowing but that is not a liability on that Person’s balance sheet. The amount of any Off-Balance Sheet Liability is calculated based on the aggregate amount of obligations outstanding under the transaction on any determination date that would be characterized as principal if the transaction were structured as a secured lending transaction, whether or not shown as a liability on that Person’s balance sheet, all in a manner reasonably satisfactory to the Administrative Agent.

“Original Indebtedness” is defined in Section 7.8(g).

“Other Connection Taxes” shall mean, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient 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).

“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment.

“Owned Real Property” means all Real Property listed on Schedule 1.2(a).

“Participant” is defined in Section 15.4(d).

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“Participant Register” is defined in Section 15.4(d).

“Payment Office” means the office that the Administrative Agent specifies in writing to the Loan Party Representative.

“Payment Recipient” is defined in Section 15.22.

“Perfection Certificate” means the perfection certificate or perfection certificates provided by Borrowers to the Administrative Agent.

“Permitted Liens” means (1) Liens in favor of the Administrative Agent; (2) Liens for taxes, assessments, or other Charges that (x) are not delinquent or (y) are being contested in good faith by appropriate proceedings that stay the enforcement of those Liens and with respect to which proper reserves have been taken by the Loan Parties in accordance with GAAP (but only if these Liens have no effect on the priority of the Administrative Agent’s Liens or the value of the Collateral, and a stay of enforcement of the Lien is in effect); (3) deposits or pledges to secure obligations under worker’s compensation, social security, or similar laws, or under unemployment insurance or general liability or product liability insurance; (4) deposits or pledges to secure bids, tenders, contracts (other than contracts for the payment of money), leases, statutory obligations, performance bonds, surety and appeal bonds, and other similar obligations arising in the ordinary course of any Loan Party’s business; (5) mechanics’, workers’, materialmen’s, warehousemen’s, common carriers’, landlord’s or other similar Liens arising in the ordinary course of any Loan Party’s business with respect to obligations that are not due or that are being contested in good faith by the applicable Loan Party; (6) Liens placed on equipment and real estate assets acquired to secure a portion of the purchase price (but only if (x) the Lien does not encumber any other of the Loan Parties’ property and (y) the aggregate amount of Indebtedness secured by these Liens incurred during any fiscal year does not exceed the amount allowed by Section 7.8); (7) zoning restrictions, easements, encroachments, rights of way, restrictions, leases, licenses, restrictive covenants, and other similar title exceptions or Liens affecting Real Property, none of which materially impairs the use or value of that Real Property; (8) customary rights of set-off, revocation, refund or chargeback under deposit agreements or under the UCC or common law of banks or other financial institutions where any Loan Party or any of its Subsidiaries maintains deposits (other than deposits intended as cash collateral) in the ordinary course of business; (9) Liens disclosed on Schedule 1.2(b) (but only if the principal amount secured is not increased and no additional assets become subject to the Lien); (10) Liens in favor of the Term Loan Agent to secure the Term Loan Debt provided such Liens securing ABL Priority Collateral are subordinated to the Liens of the Administrative Agent in the ABL Priority Collateral and are at all times subject to the terms and conditions of the Intercreditor Agreement; (11) Liens on deposit accounts or securities accounts in connection with overdraft protection and netting services and bankers’ Liens, rights of setoff and other similar Lien existing subject the applicable Control Agreement; (12) Liens with respect to the DSKY NMTC Transaction and the DSM NMTC Transaction; (13) Liens on the Equity Interests of Meredian Bioplastics, Inc. in favor of the United States Department of Energy, Federal Financing Bank, United States Department of Treasury or affiliate entities and Liens on the Equity Interests of Novomer, Inc. pursuant to Section 7.8(q); and (14) Liens with respect to Indebtedness permitted pursuant to Section 7.8(m) (including, without limitation, Liens on insurance policies and the proceeds thereof (excluding any benefits or any rights to receive payment under any insurance policies) and a first-priority Lien on unearned premiums incurred in connection with the financing in the ordinary course of business of insurance premiums, provided that such Liens shall be limited only to the unused portion of the premiums payable under such insurance policies and the proceeds of such insurance premiums).

“Permitted Restructuring Transaction” means each of the transactions set forth on Schedule 1.2(e).

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“Permitted Warehouse” means a third-party warehouse that is located in the continental United States and listed on Schedule 4.5 with respect to which the warehouseman has delivered to the Administrative Agent a Waiver and such other documentation as the Administrative Agent may require in its Discretion (or the Administrative Agent in its Discretion has established a Reserve for that location).

“Person” means any individual, sole proprietorship, partnership, corporation, business trust, joint stock company, trust, unincorporated organization, association, limited liability company, institution, public benefit corporation, joint venture, entity, or Governmental Body.

“Plan” means any employee benefit plan under Section 3(3) of ERISA, maintained for employees of any Loan Party or any member of the Controlled Group or any such Plan to which any Loan Party or any member of the Controlled Group is required to contribute on behalf of any of its employees.

“Prepayment Fee” is defined in Section 13.1.

“Primary Obligor” is defined under the defined term “Guaranty”.

“Prime Rate” means the per annum rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the United States (or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent)). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

“Priority Equipment” shall have the meaning given to such term in the DSKY Intercreditor.

“Projections” is defined in Section 5.6(a).

“PTE” is defined in Section 15.20.

“Qualified Stock” means Equity Interests that is not Disqualified Stock.

“RCRA” means the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.).

“Real Property” means the Loan Parties’ owned and leased real property.

“Recipient” shall mean, as applicable, (i) the Administrative Agent and (ii) any Lender.

“Refinance Indebtedness” is defined under Section 7.8(g).

“Register” is defined in Section 15.4(c).

“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees and advisors of such Person.

 

“Release” is defined in Section 5.8(c).

“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of

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Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.

“Required Lenders” means,

provided that, to the extent that any Lender is a Defaulting Lender, such Defaulting Lender and all of its Revolving Commitments and Revolving Exposure shall be excluded for purposes of determining Required Lenders; and provided, further, at any time that there are two (2) or more unaffiliated Non-Defaulting Lenders, Required Lenders shall consist of at least two (2) such Non-Defaulting Lenders (with Non-Defaulting Lenders who are Affiliates constituting one (1) Lender for purposes of this proviso).

“Reserves” means the sum of any reserves that the Administrative Agent in its sole and reasonable discretion deems necessary to maintain with respect to the Collateral or any Loan Party (including for: accrued and unpaid interest on the Obligations, liquidation Expenses, Hedging Obligations volatility reserves, reserves for Account dilution, rent at locations leased by any Loan Party and for consignee’s, warehousemen’s, and bailee’s charges, Inventory shrinkage, slow moving inventory, obsolete inventory, changes in Inventory composition or mix, customs charges and shipping charges related to any Inventory in transit, customer deposits, amounts owed to tooling vendors, future warranty and maintenance claims, contingent liabilities, indemnified liabilities, uninsured or underinsured losses, and for taxes, fees, assessments, and other governmental charges (including ad valorem, personal property, sales, and other taxes that may have priority over the Administrative Agent’s Liens)).

“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.

“Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Revolving Loans to the Borrowers, in an aggregate principal amount not exceeding the amount set forth with respect to such Lender on Schedule I as such schedule may be amended, or, in the case of a Person becoming a Lender after the Closing Date, the amount of the assigned “Revolving Commitment” as provided in the Assignment and Acceptance executed by such Person as an assignee, or the joinder executed by such Person, in each case, as such commitment may subsequently be increased or decreased pursuant to the terms hereof. The aggregate principal amount of all Lenders’ Revolving Commitments as of the Closing Date is $20,000,000, as the same may be increased pursuant to Section 2.8 hereof.

“Revolving Exposure” means, at any time, as the context may require, (a) the aggregate outstanding principal amount of all Revolving Loans (including any Agent Advances), or (b) with respect to any Lender at any time, the outstanding principal amount of such Le▇▇▇▇’s Revolving Loans (including any Agent Advances).

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“Revolving Loan” means a Loan made under Section 2.1(a).

“Revolving Principal Amount” means, at any time, the greater of (a) fifty percent (50%) of the lesser of (i) the Revolving Commitments and (ii) the Borrowing Base as reduced by the minimum amount of Undrawn Availability required to be maintained pursuant to Section 2.10, and (b) the aggregate outstanding principal amount of all Revolving Loans (including any Agent Advances).

“Sanctioned Country” means, at any time, a country, region or territory that is, or whose government is, the subject or target of any Sanctions.

“Sanctioned Person” means, 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” means 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 His Majesty’s Treasury of the United Kingdom.

“Secured Parties” shall mean the Administrative Agent, the Lenders, and any Affiliate of a Lender to whom any Obligations are owed from time to time, and shall include all former Administrative Agents, Lenders, and Affiliates of a Lender to the extent that any Obligations owing to such Persons were incurred while such Persons were Administrative Agents, Lenders, or Affiliates of a Lender, and such Obligations have not been paid in full.

“SOFR” with respect to any day means the secured overnight financing rate published for such day by the Federal Reserve Bank of New York, as the administrator of the benchmark, (or a successor administrator) on the website of the Federal Reserve Bank of New York at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇, or any successor source.

“SOFR Loan” means each portion of a Loan (including without limitation and without duplication, the portion of the Revolving Principal Amount treated as a SOFR Loan for purposes of the interest provisions in Article III) that bears interest at a rate determined by reference to Term SOFR (other than pursuant to clause (iii) of the definition of “Base Rate”).

“Specified Period” means, with respect to each specific Borrowing Base Certificate delivered to the Administrative Agent (the “Current Borrowing Base Certificate”), the period from the last date included in a Borrowing Base Certificate previously delivered to the Administrative Agent through and including the date that is two (2) Business Days before the date of the Current Borrowing Base Certificate.

“Subsidiary” means, with respect to any Person (the “parent”) at any date, any Person the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if the financial statements were prepared in accordance with GAAP, as well as any other Person (1) of which Equity Interests representing more than 50% of the Equity Interest 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 that date, owned, Controlled, or held, or (2) that is, as of such date, otherwise Controlled, by the parent or one or more Subsidiaries of the parent.

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“Taxes” and “taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees and charges imposed by any Governmental Body, including any interest, additions to tax and penalties applicable thereto.

“Term Loans” means the Term Loans (as defined in the Term Loan Agreement).

“Term Loan Agreement” shall have the meaning given to such term in the Intercreditor Agreement.

“Term Loan Agent” shall have the meaning given to such term in the Intercreditor Agreement.

“Term Loan Debt” shall have the meaning given to such term in the Intercreditor Agreement.

“Term Loan Pledged Equity Collateral” shall mean the Equity Interests pledged pursuant to that certain Pledge and Security Agreement, dated as of March 17, 2023, between each of the grantors party thereto and U.S. Bank Trust Company, National Association, as collateral agent.

“Term Loan Only Collateral” shall have the meaning given to such term in the Intercreditor Agreement.

“Term SOFR” means the forward-looking term rate based on SOFR as published by the Term SOFR Administrator for a one (1)-month period on the day that is two (2) Business Days prior to the first day of such one (1)-month period, as such rate is published by the Term SOFR Administrator; provided, that, if the Administrative Agent determines that any such lookback or other conventions for this rate selected is not administratively, operationally, or technically feasible for the Administrative Agent, then the Administrative Agent may establish another convention in its sole discretion, including a SOFR rate based on a different time period; provided, further, that if Term SOFR determined as provided above (including pursuant to the first proviso above) shall ever be less than the Floor, then Term SOFR shall be deemed to be the Floor.

“Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by the Administrative Agent in its reasonable discretion).

“Term SOFR Reference Rate” means the forward-looking term rate based on SOFR.

“Termination Date” means April 19, 2027.

“Toxic Substances” means any material that has been shown to have an adverse effect on human health or that is subject to regulation under the Toxic Substances Control Act (TSCA), 15 U.S.C. Section 2601 et seq., applicable state law, or any other present and future applicable Federal or state laws related to toxic substances, and includes asbestos, polychlorinated biphenyls (PCBs) and lead based paints.

“UCC” means the Uniform Commercial Code as in effect from time to time in New York (but if the law, perfection, or the effect of perfection or non-perfection of any Lien on any Collateral is governed by the Uniform Commercial Code in effect in a different jurisdiction, “UCC” means the Uniform Commercial Code as in effect in that other jurisdiction with respect to perfection or the effect of perfection or non-perfection).

“UFCA” is defined in Section 14.4(d).

“UFTA” is defined in Section 14.4(d).

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“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.

“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the Benchmark Replacement Adjustment.

“Undrawn Availability” means, as of any determination date, an amount equal to (x) the Maximum Borrowing Amount, minus (y) the sum of (1) the Revolving Exposure, plus (2) fees and Expenses that any Loan Party is liable for but that have not been paid or charged to the Loan Account.

“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.

“USA Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

“Waivers” means all landlord’s waivers, warehouseman’s waivers, creditor’s waivers, mortgagee waivers, processing facility and bailee waivers, and customs broker waivers that are executed and delivered in connection with this Agreement.

“Withholding Agent” shall mean any Borrower, any Loan Party or the Administrative Agent, as applicable.

“Write-Down and Conversion Powers” shall mean (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.

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Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Loan Party Representative and the Administrative Agent in writing of its legal inability to do so.

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Each Loan Party represents and warrants that:

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Until all Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party must:

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Until all Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, no Loan Party may:

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Provided, however, that the Loan Parties shall be permitted to:

 

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Without limiting the generality of the provisions of this Section 8.1, for purposes of determining compliance with the conditions specified in this Section 8.1, each Lender that has signed this Agreement shall be

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deemed to have consented to, approved of, accepted or been satisfied with each document or other matter required thereunder to be consented to, approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

 

Each Advance or Loan request is a representation and warranty by each Loan Party that each condition precedent to the Advance or Loan has been met on the date the Advance or Loan is requested and received.

Until all Obligations are irrevocably paid and performed in full (other than contingent obligations with respect to which no claim has been asserted or threatened) and the Loan Documents are terminated, each Loan Party must:

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Lender Information Requests. To the extent any Lender shall make a request in writing to the Administrative Agent for any information in respect of this Agreement that the Administrative Agent is permitted or authorized to request under the terms of the Loan Documents, then the Administrative Agent shall request from the Loan Parties such information and, upon receipt of the same, promptly deliver the same to such requesting Lender.

 

Each of the following events is an “Event of Default”:

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In addition the Administrative Agent has all rights and remedies provided by law or in equity and any rights and remedies contained in the Loan Documents. The exercise or non-exercise of any right or remedy does not preclude the exercise of any other right or remedy. All rights and remedies are cumulative. The proceeds realized from any sale or other disposition of any Collateral may be applied, first to any Expenses incurred by the Administrative Agent, second to any reimbursable Expenses incurred by any Lender, and then to the remainder of the Obligations in such order of application as the Administrative

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Agent may elect in its discretion, with Borrowers and the other Loan Parties remaining liable for any deficiency. Neither the Administrative Agent nor any Lender shall accept or consent to the acceptance of any Collateral, or non-cash proceeds of any such Collateral, in partial or full satisfaction of the Obligations, except with the prior written consent of the Administrative Agent and all Lenders (such consent not to be unreasonably withheld, conditioned or delayed).

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Period during which early termination occurs	Prepayment Fee
On or before the first anniversary of the Closing Date	3% of the Facility Termination Amount or the Revolving Commitment Reduction, as applicable
After the first anniversary of the Closing Date and on or before the second anniversary of the Closing Date	2% of the Facility Termination Amount or the Revolving Commitment Reduction, as applicable
After the second anniversary of the Closing Date and on or before the Termination Date	1% of the Facility Termination Amount or the Revolving Commitment Reduction, as applicable

In addition to the foregoing, the Prepayment Fee is also due and payable: (i) in connection with any acceleration of the Loans or termination of this Agreement when an Event of Default exists during any of the applicable periods set forth above; (ii) if any Loan Party becomes subject to an Insolvency Proceeding and this Agreement is terminated or all Obligations are paid in connection with any Insolvency Proceeding; or (iii) in connection with payment of any Obligations by any trustee, receiver, interim receiver, administrator, custodian, debtor-in-possession, or other court appointed or legally authorized representative. The Loan Parties agree that the Prepayment Fee is a reasonable estimate of the Administrative Agent’s damages due to the early termination of this Agreement and the Loan Parties agree that the amount is reasonable under the current circumstances currently existing. The Prepayment Fee is part of the Obligations and is secured by the Collateral.

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provided, further, that no such change, modification, amendment, waiver, supplement, discharge, cancellation or termination shall amend, modify or otherwise affect the rights, duties or obligations of the Administrative Agent without the prior written consent of the Administrative Agent.

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As of the Closing Date, the applicable parties’ addresses and numbers are as follows:

(A)	If to the Administrative Agent at:	ABL OPCO LLC, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. Suite 202 Frisco, TX 75034 Attention: ▇▇▇▇ ▇▇▇▇▇▇, Managing Director Telephone: 469-581-7329 Email: ▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
	With a copy to (which is not notice):           With a copy to (which is not notice):	▇▇▇▇▇▇ & Whitney 200 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: 214-981-9912 Email: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ ABL OPCO LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Credit Officer Telephone: 203-644-3368 Email: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(B)	If to Loan Party Representative at:	Danimer Scientific, Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: Chief Financial Officer Email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
	With a copy to (which is not notice):	▇▇▇▇ ▇▇▇▇▇▇▇, P.C. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.

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		Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(C)	If to any Lender at:	The “Address for Notices” set forth for such Lender on its respective signature page to this Agreement or the Assignment and Acceptance executed by such Lender

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Each party’s obligations, agreements and waivers under this Section 15.22 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender and/or the payment in full of the Obligations.

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Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.

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Upon request by the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release any Lien in particular types or items of property, or to release any Loan Party from its obligations under the applicable Loan Documents pursuant to this Section 16.11. In each case as specified in this Section 16.11, the Administrative Agent is authorized, at the Borrowers’ expense, to execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the Liens granted under the applicable Loan Documents, or to release such Loan Party from its obligations under the applicable Loan Documents, in each case in accordance with the terms of the Loan Documents and this Section 16.11.

[Remainder of Page Intentionally Left Blank – Signature Pages Follow]

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The Loan Parties and ▇▇▇▇▇▇ entered into this Agreement on the Closing Date.

BORROWERS:

DANIMER SCIENTIFIC, INC.,

a Delaware corporation

as a Borrower and as Loan Party Representative

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Chief Financial Officer

MERIDIAN HOLDINGS GROUP, INC.,

a Delaware corporation

as a Borrower

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Treasurer

DANIMER SCIENTIFIC HOLDINGS, LLC,

a Delaware limited liability company

as a Borrower

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Treasurer

MEREDIAN, INC.,

a Georgia corporation

as a Borrower

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Treasurer

▇▇▇▇▇▇▇ SCIENTIFIC, L.L.C.,

a Georgia limited liability company

as a Borrower

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Treasurer

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▇▇▇▇▇▇▇ BIOPLASTICS, INC.,

a Georgia corporation

as a Borrower

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Treasurer

DANIMER SCIENTIFIC KENTUCKY, INC.,

a Delaware corporation

as a Borrower

By:  /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇

Title: Treasurer

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ADMINISTRATIVE AGENT:

ABL OPCO LLC, a Delaware limited liability company

By:  /s/ ▇▇▇▇ ▇▇▇▇▇▇

Name: ▇▇▇▇ ▇▇▇▇▇▇

Title: Managing Director

LENDERS:

ABL OPCO LLC, a Delaware limited

liability company d/b/a Mountain Ridge Capital

By:  /s/ ▇▇▇▇ ▇▇▇▇▇▇

Name: ▇▇▇▇ ▇▇▇▇▇▇

Title: Managing Director

 

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