EXHIBIT 10.1


 


AMENDMENT
NO. TWO TO Loan and Security Agreement and consent


 


This Amendment No.
Two to Loan and Security Agreement and Consent (this “Agreement”), dated as of December 22, 2020 (the
“Effective Date”), is entered into among Danimer Scientific Holdings, LLC, a Delaware limited liability
company (“Danimer Holdings”), Meredian Bioplastics, Inc., a Georgia corporation (“Meredian
Bioplastics”; and together with Danimer Holdings, each a “Borrower” and collectively the
“Borrowers”), Meredian, Inc., a Georgia corporation (“Meredian”), Danimer Scientific,
L.L.C., a Georgia limited liability company “Danimer Scientific”), Danimer Bioplastics, Inc., a Georgia
corporation (“Danimer Bioplastics”), Danimer Scientific Kentucky, Inc., a Delaware corporation (“Danimer
Kentucky”; together with Meredian, Danimer Scientific, Danimer Bioplastics and with any other Person that at any
time after the date hereof becomes a Guarantor, each a “Guarantor” and collectively, the “Guarantors”,
and together with the Borrowers, the “Loan Parties”), the several entities from time to time party thereto
as Lenders, and Southeast Community Development Fund X, L.L.C., a Delaware limited liability company, as Administrative Agent (“Administrative
Agent”).


 


Recitals:


 


A. Borrowers,
the Affiliates of Borrowers from time to time party thereto as Guarantors, the entities from time to time party thereto as Lenders
and Administrative Agent are party to that certain Loan and Security Agreement, dated as of March 13, 2019, as supplemented by
that certain Waiver Letter Agreement dated July 28, 2020, and as amended by Amendment No. One to Loan and Security Agreement dated
as of October 2, 2020 (as amended from time to time, the “Existing Loan Agreement”, as the same is amended
pursuant to this Agreement and as it may be further amended, supplemented and/or otherwise modified from time to time, the “Loan
Agreement”).


 


B. Parent
has entered into that certain Agreement and Plan of Merger with Live Oak Acquisition Corp., a publicly-traded company (“Live
Oak”), Green Merger Corp., Live Oak Sponsor Partners, LLC, as the representative for Live Oak, and John A. Dowdy,
Jr., as Parent shareholder representative, dated as of October 3, 2020 (as amended by that certain Amendment No. 1 to Agreement
and Plan of Merger, dated as of October 8, 2020, as may be further amended, supplemented and/or otherwise modified from time to
time, the “Merger Agreement”) whereby Green Merger Corp. will merge with and into Parent with Parent
as the surviving entity and following the consummation of such merger, Parent will be reincorporated as a Delaware corporation
(the transactions contemplated under the Merger Agreement, collectively, the “Live Oak Transactions”).
The Live Oak Transactions will result in a Change of Control under the Loan Agreement as Live Oak Acquisition Corp. will own 100%
of the Equity Interests of Parent. Furthermore, a condition to closing under the Merger Agreement is the consent of Lenders to
the Live Oak Transactions.


 


C. Borrowers
have requested that Lenders (a) consent to the Live Oak Transactions, and (b) amend certain provisions of the Existing Loan Agreement
as provided herein, on and subject to the terms and conditions set forth herein. Administrative Agent, on behalf of and at the
direction of Lenders, is willing to agree to the requests of Borrowers, but only on the terms and conditions set forth herein.


 


Agreement:


 


NOW, THEREFORE, in
consideration of the premises and the mutual covenants and conditions contained herein, and for good and valuable consideration,
the receipt and sufficiency of which are hereby specifically acknowledged, the parties hereby covenant and agree as follows:


 


1. Definitions;
References; Interpretation.


 


(a) Unless
otherwise specifically defined herein, each capitalized term used herein (including in the Recitals hereof) that is defined in
the Loan Agreement shall have the meaning assigned to such term in the Loan Agreement.


 


(b) Each
reference to “this Agreement,” “hereof,” “hereunder,” “herein” and “hereby”
and each other similar reference contained in the Loan Agreement, and each reference to “the Loan Agreement” and each
other similar reference in the other Loan Documents, shall from and after the date of this Agreement, refer to the Loan Agreement,
as amended hereby. This Agreement is a Loan Document.


 


(c) The
rules of interpretation set forth in Section 1.02 of the Loan Agreement shall be applicable to this Agreement, mutatis mutandis.


 






     


     


    

 


2. Acknowledgments
of Obligations and Related Matters.


 


(a) Acknowledgment
of Obligations. Borrowers hereby acknowledge, confirm and agree that Borrowers are, jointly and severally, unconditionally
indebted to Administrative Agent and Lenders as of the close of business on the date preceding the date hereof in respect of the
Loans and all other Obligations in the aggregate principal amount of not less than $9,999,980.00, together with interest accrued
and accruing thereon, and all fees, costs, expenses and other sums and charges now or hereafter payable by Borrowers to Administrative
Agent and Lenders pursuant to the Loan Agreement and the other Loan Documents, all of which are unconditionally owing by Borrowers
to Administrative Agent and Lenders pursuant to the Loan Documents, in each case without offset, defense or counterclaim of any
kind, nature or description whatsoever.


 


(b) Acknowledgment
of Security Interests. Borrowers hereby acknowledge, confirm and agree that Administrative Agent and Lenders have, and shall
continue to have, valid, enforceable and perfected security interests in and liens upon the Collateral heretofore granted by Borrowers
to Administrative Agent, for the benefit of Lenders, pursuant to the Loan Documents or otherwise granted to or held by Administrative
Agent.


 


(c) Binding
Effect of Loan Documents. Borrowers hereby acknowledge, confirm and agree that: (i) each of the Loan Documents to which any
Borrower is a party has been duly executed and delivered to Administrative Agent and Lenders by such Borrower and each is in full
force and effect as of the date hereof, (ii) the agreements and obligations of Borrowers contained in such Loan Documents to which
any Borrower is a party and in this Agreement constitute the legal, valid and binding Obligations of Borrowers, enforceable against
Borrowers in accordance with their respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating
to enforceability, and Borrowers have no valid defense to the enforcement of such Obligations, and (iii) Administrative Agent and
Lenders are and shall be entitled to the rights, remedies and benefits provided for in the Loan Documents and pursuant to applicable
law, but subject to the terms and conditions of this Agreement.


 


3. Modifications
to the Loan Agreement. Upon the effectiveness of this Agreement in accordance with the provisions hereof and notwithstanding
anything to the contrary contained in the Existing Loan Agreement or the Loan Documents:


 


(a) Modification
to Section 1.01 of the Existing Loan Agreement to Add Certain New Defined Terms. Section 1.01 of the Existing Loan Agreement
is hereby modified as of the Effective Date of this Agreement to add the following new defined terms therein in alphabetical order:


 


“Live
Oak Transactions” has the meaning ascribed thereto in the Recitals Section of the Seventh Modification Agreement.


 


“Merger
Agreement” means that certain Agreement and Plan of Merger by and among Parent, Live Oak Acquisition Corp., a publicly-traded
company (“Live Oak”), Green Merger Corp., Live Oak Sponsor Partners, LLC, as the representative for Live
Oak, and John A. Dowdy, Jr., as Parent shareholder representative, dated as of October 3, 2020, as amended by that certain Amendment
No. 1 to Agreement and Plan of Merger dated as of October 8, 2020, and as the same may be further amended, supplemented and/or
otherwise modified from time to time.


 






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“Merger
Documents” means collectively, the Merger Agreement and all other agreements, certificates, documents and instruments
collateral thereto or contemplated thereby, including, without limitation, all ancillary agreements, side letters, employment agreements,
incentive agreements, and corporate filings with respect thereto, as all of the foregoing now exist or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.


 


“Merger
Closing Date” means the “Closing Date” as defined in the Merger Agreement.


 


“Seventh
Modification Agreement” means that certain Seventh Modification and Consent under Loan and Security Agreement dated
as of the Seventh Modification Effective Date, as amended, restated, renewed, supplemented or otherwise modified from time to time.


 


“Seventh
Modification Effective Date” means December 11, 2020.


 


“Ultimate
Parent Entity” means Live Oak Acquisition Corp., a Delaware corporation, which, after the Merger Closing Date, will
be renamed Danimer Scientific, Inc.


 


(b) Modification
of Certain Defined Terms Under Section 1.01 of the Existing Loan Agreement. Section 1.01 of the Existing Loan Agreement is
hereby modified as of the Effective Date of this Agreement to amend and restate in their entirety the following defined terms contained
therein to read as follows:


 


“Change
of Control” means:


 


(a) prior
to giving effect to the Live Oak Transactions effected on the Merger Closing Date, (i) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the Securities
Exchange Commission thereunder), of Equity Interests in Parent (or in any Person of which Parent is a direct or indirect wholly-owned
Subsidiary) representing more than thirty five percent (35%) of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests in Parent (or such Person), (ii) Persons who were (A) directors (or managers, as the case may be)
of any Borrower on the date hereof, (B) nominated by the board of directors (or managers, as the case may be) of any Borrower or
(C) appointed or elected by directors (or managers, as the case may be) that were directors (or managers, as the case may be) of
any Borrower on the date hereof, or directors (or managers, as the case may be) nominated as provided in the preceding clause (B),
in each case other than any person whose initial nomination or appointment occurred as a result of an actual or threatened solicitation
of proxies or consents for the election or removal of one or more directors (or managers, as the case may be) on the board of directors
(or managers, as the case may be) of any Borrower (other than any such solicitation made by the board of directors (or managers,
as the case may be) of any Borrower), ceasing to occupy a majority of the seats (excluding vacant seats) on the board of directors
(or managers, as the case may be) of any Borrower or (iii) the failure of Parent to own directly or indirectly, beneficially or
of record, one hundred percent (100.00%) of the aggregate ordinary voting power and economic interests represented by the issued
and outstanding Equity Interests of each Subsidiary, including Borrowers and Guarantors (or such lesser percentage as may be owned,
directly or indirectly, as of the Effective Date or the later acquisition thereof), except where such failure occurs as a result
of a transaction or circumstance otherwise expressly permitted by the Loan Documents; and


 






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(b) at
all times after giving effect to the Live Oak Transactions effected on the Merger Closing Date, (i) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules
of the Securities Exchange Commission thereunder), of Equity Interests in Ultimate Parent Entity (or in any Person of which Ultimate
Parent Entity is a direct or indirect wholly-owned Subsidiary) representing more than thirty five percent (35%) of the aggregate
ordinary voting power represented by the issued and outstanding Equity Interests in Ultimate Parent Entity (or such Person), (ii)
Persons who were (A) directors (or managers, as the case may be) of Ultimate Parent Entity, Parent, or any Borrower on the Merger
Closing Date, (B) nominated by the board of directors (or managers, as the case may be) of Ultimate Parent Entity, Parent, or any
Borrower or (C) appointed or elected by directors (or managers, as the case may be) that were directors (or managers, as the case
may be) of Ultimate Parent Entity, Parent, or any Borrower on the Merger Closing Date, or directors (or managers, as the case may
be) nominated as provided in the preceding clause (B), in each case other than any person whose initial nomination or appointment
occurred as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more
directors (or managers, as the case may be) on the board of directors (or managers, as the case may be) of Ultimate Parent Entity,
Parent, or any Borrower (other than any such solicitation made by the board of directors (or managers, as the case may be) of Ultimate
Parent Entity, Parent, or any Borrower), ceasing to occupy a majority of the seats (excluding vacant seats) on the board of directors
(or managers, as the case may be) of Ultimate Parent Entity, Parent, or any Borrower, (iii) the failure of Parent to own directly
or indirectly, beneficially or of record, one hundred percent (100.00%) of the aggregate ordinary voting power and economic interests
represented by the issued and outstanding Equity Interests of each Subsidiary, including Borrowers and Guarantors (or such lesser
percentage as may be owned, directly or indirectly, as of the Merger Closing Date or the later acquisition thereof), except where
such failure occurs as a result of a transaction or circumstance otherwise expressly permitted by the Loan Documents or (iv) the
failure of Ultimate Parent Entity to own directly or indirectly, beneficially or of record, one hundred percent (100.00%) of the
aggregate ordinary voting power and economic interests represented by the issued and outstanding Equity Interests of Parent, except
where such failure occurs as a result of a transaction or circumstance otherwise expressly permitted by the Loan Documents.


 


(c) Amendment
of Section 6.02(d) of the Existing Loan Agreement. Section 6.02(d) of the Loan Agreement is hereby amended and restated in
its entirety, effective as of the Merger Closing Date, to read as follows:


 


“(d) Equity
Interest Holder Reports and Certain Public Filings. If and when applicable, promptly after the same are available, copies
of each annual report, proxy or financial statement or other report or communication sent to the holders of Equity Interests
of Ultimate Parent Entity, any Loan Party or any Subsidiary and copies of all annual, regular, periodic and special reports
and registration statements that Ultimate Parent Entity, any Loan Party, or any Subsidiary may file or be required to file
with the Securities and Exchange Commission under Section 13 or Section 15(d) of the Exchange Act, and, in each
case, not otherwise required to be delivered to Administrative Agent pursuant hereto; provided, however, that in each case
the delivery of materials to the Administrative Agent required under this Section 6.02(d) or the delivery of notice promptly
thereof (but in no event more than five (5) Business Days thereafter) to the Administrative Agent following filing of
documents pursuant to the SEC’s “EDGAR” system (or any successor electronic filing system) shall be deemed
to satisfy the delivery obligations to the Administrative Agent of such filed documents as of the time such documents are
filed via the “EDGAR” system for purposes of this Section 6.02(d); and, provided further that any failure to
provide timely notice of an EDGAR filing hereunder shall not be deemed a breach of the Agreement if the Administrative Agent
had actual knowledge of such EDGAR filing.”


 






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4. Consents.


 


(a) Subject
to the satisfaction of the conditions precedent set forth in Section 7 hereof, Administrative Agent consents, on behalf of itself
and the Lenders, to Parent entering into, delivering and/or consummating, as the case may be, transactions contemplated by the
Merger Documents, including the Live Oak Transactions and agrees that the Live Oak Transactions shall not be deemed to be a Change
of Control or breach of any provision of any Loan Document.


 


(b) Except
as expressly set forth in this Agreement, the foregoing consent shall not constitute (a) a modification or alteration of the terms,
conditions or covenants of the Loan Agreement or any other Loan Document, or (b) a waiver, release or limitation upon the exercise
by Administrative Agent or any Lender of any of its rights, legal or equitable, thereunder.


 


5. Reserved.


 


6. Representations
and Warranties. Each Borrower hereby represents and warrants to Administrative Agent and Lenders as follows:


 


(a) No
Default or Event of Default has occurred and is continuing (or would result from the amendment of the Existing Loan Agreement contemplated
hereby), after giving effect to this Agreement.


 


(b) The
execution, delivery and performance by each Loan Party of this Agreement has been duly authorized by all necessary corporate and
other action and do not and will not require any registration with, consent or approval of, or notice to or action by, any Person
other than such as have been obtained or made and are in full force and effect.


 


(c) On
and as of the date of this Agreement, all representations and warranties of each Loan Party contained in the Loan Agreement and
in each other Loan Document are true and correct in all material respects (except to the extent such representations and warranties
expressly refer to an earlier or specified date, in which case they are true and correct in all material respects as of such earlier
or specified date).


 


7. Conditions
of Effectiveness.


 


(a) The
Agreement shall become effective as of the Effective Date of this Agreement upon the satisfaction of all of the following conditions:


 


(i) Borrowers
shall have delivered to Administrative Agent an original (or executed faxed or electronic copy) of this Agreement, duly executed
by each of the Loan Parties;


 


(ii) Borrowers
shall have delivered to Administrative Agent a fully executed copy of the Merger Agreement and any amendments thereto;


 


(iii) each
of the representations and warranties contained in Section 6 of this Agreement shall be true, correct and accurate as of the date
of this Agreement; and


 


(iv) the
receipt by Administrative Agent of the payment, in immediately available funds, of all reasonable out-of-pocket fees, costs, charges
and expenses incurred by Administrative Agent in connection with the preparation, execution and delivery of this Agreement or any
of the transactions arising hereunder or otherwise related hereto or referred to herein, including any actual out-of-pocket costs,
expenses, charges or expenses of Administrative Agent and the reasonable fees, charges and disbursements of counsel for Administrative
Agent.


 






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(b) The
parties hereto specifically acknowledge and agree that: (i) the execution and delivery of this Agreement shall not be deemed to
create a course of dealing or otherwise obligate Administrative Agent or Lenders to execute similar agreements under the same,
similar or different circumstances in the future; and (ii) neither Administrative Agent nor any Lender has any obligation to further
amend provisions of, or waive compliance with or consent to a departure from the requirements of, the Existing Loan Agreement or
any of the other Loan Documents. Except as expressly amended pursuant hereto, the Existing Loan Agreement and each of the other
Loan Documents shall remain unchanged and in full force and effect and are hereby ratified and confirmed in all respects, and the
Collateral described in the Loan Documents shall continue to secure the Obligations. Each of the Guarantors party hereto: (i) specifically
consents to the terms of this Agreement; (ii) reaffirms its obligations under its Guaranty and under all other Loan Documents to
which it is a party; (iii) reaffirms the waivers of each and every one of the defenses to such obligations as set forth in such
Guaranty and each such other Loan Document; and (iv) reaffirms that its obligations under such Guaranty and each such other Loan
Document are separate and distinct from the obligations of any other party under the Loan Documents.


 


8. General
Release. On and as of the Effective Date of this Agreement and in consideration of the agreements set forth herein, Parent
and each Loan Party which is a party hereto, on behalf of itself and its successors and assigns, does hereby: (a) release, acquit
and forever discharge Administrative Agent and each Lender, all of Administrative Agent’s and each Lender’s predecessors-in-interest,
and all of Administrative Agent’s and each Lender’s past and present officers, directors, managers, members, attorneys,
affiliates, employees and agents, of and from any and all claims, demands, obligations, liabilities, indebtedness, breaches of
contract, breaches of duty or of any relationship, acts, omissions, misfeasance, malfeasance, causes of action, defenses, offsets,
debts, sums of money, accounts, compensation, contracts, controversies, promises, damages, costs, losses and expenses, of every
type, kind, nature, description or character, whether known or unknown, suspected or unsuspected, liquidated or unliquidated (each
of the foregoing, a “Claim”), each as though fully set forth herein at length, that any Borrower, any
Loan Party or any of their respective successors or assigns now has or may have as of the Effective Date of this Agreement in any
way arising out of, connected with or related to any or all of the transactions contemplated by the Loan Documents (including this
Agreement) or any of them or any provision or failure to provide credit or other accommodations to any Borrower or any other Person
under the Loan Documents (including this Agreement) or any of them or any other agreement, document or instrument referred to,
or otherwise related to, any or all of the Loan Documents (including this Agreement) or any of them (each, a “Released
Claim”); and (b) specifically acknowledge and agree that: (i) none of the provisions of the release contained in
Section 6(a) above (the “General Release”) shall be construed as or constitute an admission of any liability
on the part of Administrative Agent or Lenders (or any of them); (ii) the provisions of the General Release shall constitute an
absolute bar to any Released Claim of any kind, whether any such Released Claim is based on contract, tort, warranty, mistake or
any other theory, whether legal, statutory or equitable; and (iii) any attempt to assert a Released Claim barred by the provisions
of the General Release shall subject it to the provisions of applicable law setting forth the remedies for the bringing of groundless,
frivolous or baseless claims or causes of action.


 


9. General
Provisions.


 


(a) This
Agreement shall be binding upon and inure to the benefit of the parties to the Loan Agreement and their respective successors and
assigns.


 


(b) This
Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto understands and agrees that this document (and any
other document required herein) may be delivered by the other party thereto either in the form of an executed original or an executed
original sent by facsimile or electronic transmission to be followed promptly by mailing of a hard copy original, and that receipt
by Administrative Agent of an electronically, telecopier facsimile or other portable document format purportedly bearing the signature
of Borrowers and shall bind Borrowers with the same force and effect as the delivery of a hard copy original.


 


(c) This
Agreement contains the entire and exclusive agreement of the parties to the Loan Agreement with reference to the matters discussed
herein. This Agreement supersedes all prior drafts and communications with respect hereto. This Agreement may not be amended except
in accordance with the provisions of the Loan Agreement.


 


(d) Article
X of the Existing Loan Agreement (except Section 10.14 thereof) is incorporated herein by this reference and made applicable as
if set forth herein in full, mutatis mutandis.


 


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In
Witness Whereof, the parties hereto have duly executed and delivered this Agreement as of the date first written above.


 


BORROWERS:


 


	DANIMER SCIENTIFIC HOLDINGS, LLC	 	MEREDIAN BIOPLASTICS, INC.
	 	 	 	 	 
	By:  	/s/ John A. Dowdy, III	 	By:  	/s/ John A. Dowdy, III
	Name:	John A. Dowdy, III	 	Name:	John A. Dowdy, III
	Title:	Chief Financial Officer	 	Title:	Chief Financial Officer
	 	 	 	 	 
	GUARANTORS:	 	 	 
	 	 	 	 	 
	MEREDIAN, INC.	 	DANIMER SCIENTIFIC, L.L.C.
	 	 	 	 	 
	By:  	/s/ John A. Dowdy, III	 	By:  	/s/ John A. Dowdy, III
	Name:	John A. Dowdy, III	 	Name:	John A. Dowdy, III
	Title:	Chief Financial Officer	 	Title:	Chief Financial Officer
	 	 	 	 	 
	DANIMER BIOPLASTICS, INC.	 	DANIMER SCIENTIFIC KENTUCKY, INC.
	 	 	 	 	 
	By:  	/s/ John A. Dowdy, III	 	By:  	/s/ John A. Dowdy, III
	Name: 	John A. Dowdy, III	 	Name: 	John A. Dowdy, III
	Title:	Chief Financial Officer	 	Title:	Chief Financial Officer


 


[Signatures continue on following page]


 


Amendment No. Two to LSA and Consent (Danimer/SECDF
X/PIFS)


 






     


     


    

 


	Administrative Agent:	 
	 	 
	SOUTHEAST COMMUNITY DEVELOPMENT FUND X, L.L.C.,

a Delaware limited liability company	 
	 	 
	By: 	Advantage Capital Community Development 

Fund, L.L.C., its Managing Member	 
	 	 	 
	By:  	/s/ Abhi Chandrasekhara	 
	Name:  	Abhi Chandrasekhara	 
	Title: 	Authorized Person	 
	 	 
	Lenders:	 
	 	 
	Southeast Community Development Fund X, L.L.C.,	 
	a Delaware limited liability company	 
	 	 
	By:  	Advantage Capital Community Development 

Fund,
L.L.C., its Managing Member	 
	 	 
	By:  	/s/ Abhi Chandrasekhara	 
	Name: 	Abhi Chandrasekhara 	 
	Title:  	 Authorized Person	 



 


[Signatures
continue on following page]


 


Amendment No. Two to LSA and Consent (Danimer/SECDF
X/PIFS)


 






     


     


    

 


	LENDERS (CONT.):	 
	 	 
	PIFS SUb-CDE XX, LLC,	 
	a Virginia limited liability company	 
	 	 
	By:   	People Incorporated Financial Services, a Virginia non-stock corporation, its Managing Member	 
	 	 
	By:  	/s/ Robert G. Goldsmith	 
	Name:	 Robert G. Goldsmith	 
	Title:   	President and CEO	 


 


 


Amendment No. Two to LSA and Consent (Danimer/SECDF
X/PIFS)