Contract
Document as security for or otherwise guaranteed the Obligations under or with respect to the Loan Documents, ratifies and reaffirms such guarantee and grant of security interests and liens and confirms and agrees that such security interests and liens hereafter secure all of the Obligations as amended hereby. Each of the Loan Parties signatory hereto hereby consents to this Amendment and acknowledges that each of the Loan Documents (as amended herby) remains in full force and effect and is hereby ratified and reaffirmed. The execution of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative Agent or Lenders, constitute a waiver of any provision of any of the Loan Documents or serve to effect a novation of the Obligations. [Remainder of page intentionally left blank.] - 5 - WEIL:\97457544\6\35899.0596
FMC ASIA-PACIFIC, INC., as Guarantor By: Name: Xxxxxxxx Xxxxxxxxxx Title: President FMC LITHIUM OVERSEAS LTD., as Guarantor By: Name: Xxxxxxxx Xxxxxxxxxx Title: President and Treasurer [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
CITIBANK, N.A., as Administrative Agent and a Lender By: ___________________________________ Name: Xxxxxxx Xxxxxxxxx Title: Vice President [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
XXXXXXX SACHS BANK USA, as a Lender By: Name: Title: [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
SUMITOMO MITSUI BANKING CORPORATION, as a Lender By: Name: Jun Ashley Title: Director [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender and an Issuing Bank By: Name: Xxxxx Xxxxx Title: Authorized Signatory By: Name: Xxxxx Xxxxxxx Title: Authorized Signatory [Signature Page to Livent Credit Agreement]
JPMORGAN CHASE BANK, N.A., as a Lender By: Name: Xxxxx X. Xxxxxx Title: Executive Director [S IGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT ]
Industrial and Commercial Bank of China Limited, New York Branch, as a Lender Digitally signed by: Xxxxxxxxx Xxx Date: 2020.05.05 By: 18:00:11 -05'00' Name: Title: Digitally signed by: Gang Duan Date: 2020.05. 05 19:37:59 - By: 05'00' Name: Title: [SIGNATURE PAGE TO FIRST AMENDMENT TO CREDIT AGREEMENT]
Exhibit A AMENDED CREDIT AGREEMENT [To be attached] A-1 WEIL:\97457544\6\35899.0596
EXECUTION VERSION Conformed through First Amendment βββββββββββββββββββββββββββββββββββββββ $400,000,000 CREDIT AGREEMENT Dated as of September 28, 2018 among LIVENT CORPORATION and FMC LITHIUM USA CORP. as Borrowers THE GUARANTORS PARTY HERETO FROM TIME TO TIME as Guarantors THE LENDERS AND ISSUING BANKS PARTY HERETO and CITIBANK, N.A., as Administrative Agent, * * * CITIBANK, N.A., XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED, CREDIT SUISSE LOAN FUNDING LLC, and XXXXXXX SACHS BANK USA as Joint Lead Arrangers and as Joint Bookrunners, and BANK OF AMERICA, N.A., CREDIT SUISSE LOAN FUNDING LLC, and XXXXXXX XXXXX BANK USA, as Co-Syndication Agents βββββββββββββββββββββββββββββββββββββββ -
SECTION 9.17. Appointment of Livent as Representative 122125 SECTION 9.18. Entire Agreement 122125 SECTION 9.19. No Fiduciary Duty 122125 SECTION 9.20. Appointment for Perfection 123126 SECTION 9.21. XXXX Events 123126 Article X LOAN GUARANTY 123127 SECTION 10.01. Loan Guaranty 123127 SECTION 10.02. Authorization; Other Agreements 124128 SECTION 10.03. Loan Guaranty Absolute and Unconditional 125129 SECTION 10.04. Waivers 126130 SECTION 10.05. Reliance 126130 SECTION 10.06. Waiver of Subrogation and Contribution Rights 127130 SECTION 10.07. Subordination 127131 SECTION 10.08. Default; Remedies 127131 SECTION 10.09. Irrevocability 128131 SECTION 10.10. Setoff 128132 SECTION 10.11. No Marshaling 128132 SECTION 10.12. Enforcement; Amendments; Waivers 128132 SECTION 10.13. Keepwell 128132 iv -
SCHEDULES AND EXHIBITS SCHEDULES Schedule I - Commitments Schedule 5.02 - Consents Schedule 5.13 - Subsidiaries Schedule 5.22 - Material Agreements Schedule 6.03(o) - Post-Closing Deliverables Schedule 6.04(a)(ii) - Existing Debt Schedule 6.04(b)(iii) - Existing Liens Schedule 6.04(d)(ii) - Existing Investments EXHIBITS Exhibit A - Form of Revolving Loan Note Exhibit B-1 - Form of Notice of Borrowing Exhibit B-2 - Form of Notice of Conversion or Continuation Exhibit C-1 - Form of Assignment and Acceptance Exhibit C-2 - Form of Participation Agreement Exhibit C-3 - Form of New Commitment Acceptance Exhibit D-1 - Form of Perfection Certificate Exhibit D-2 - Form of Perfection Certificate Supplement Exhibit E - Form of Joinder Agreement Exhibit F - Form of Security Agreement Exhibit G - Form of Compliance Certificate -
a Person that is a Borrower or a Restricted Subsidiary); provided, that the applicable Borrower or Restricted Subsidiary is the surviving entity. βAdministrative Agentβ has the meaning specified in the introductory paragraph to this Agreement. βAdministrative Agentβs Accountβ means, in respect of any Currency, such account as the Administrative Agent shall designate in a notice to Livent and the Lenders. βAffected Financial Institutionβ means (a) any EEA Financial Institution or (b) any UK Financial Institution. βAffected Personβ has the meaning specified in Sections 3.03(e), 3.04 and 3.06. βAffiliateβ means, with respect to any Person, any other Person directly or indirectly controlling or that is controlled by or is under common control with such Person, each officer, director, general partner or joint-venturer of such Person, and each Person that is the beneficial owner of 5% or more of any class of Voting Stock of such Person. For the purposes of this definition, βcontrolβ means the possession of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. βAgreementβ has the meaning specified in the introductory paragraph to this Agreement. βAlternate Currencyβ means any lawful currency other than Dollars or Euros (approved by the Administrative Agent and each Lender) which is freely transferable into Dollars. βAnti-Corruption Lawsβ means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or its Subsidiaries from time to time concerning or relating to bribery or corruption, including the Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1, et seq. βAnti-Money Laundering Lawsβ means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or its Subsidiaries from time to time concerning or relating to money laundering, including the Patriot Act. βApplicable Lending Officeβ means, with respect to each Lender, and for each Type and Currency of Loan, such Lenderβs Domestic Lending Office in the case of a Base Rate Loan and such Lenderβs Eurocurrency Lending Office in the case of a Eurocurrency Rate Loan. βApplicable Marginβ means, as of any date, the applicable margin set forth under the Eurocurrency Rate or Base Rate column set forth below, as applicable, based upon Liventβs First Lien Leverage Ratio as of the most recent determination date; provided, that until the delivery to the Administrative Agent, pursuant to Section 6.02(a), of Liventβs annual or quarterly consolidated financial statements and compliance certificate for Liventβs first Fiscal Quarter ending after the First Amendment Effective Date, the βApplicable Marginβ shall be the applicable rate per annum set forth below in Pricing Level IIII: First Lien Leverage Applicable Margin 2 -
Pricing Ratio Eurocurrency Base Rate Loans Level Rate Loans I β€ 1.00 to 1.00 2.002.25% 1.001.25% II > 1.00 to 1.00 but 2.252.50% 1.251.50% β€ 2.00 to 1.00 III > 2.00 to 1.00 but 2.502.75% 1.501.75% β€ 3.00 to 1.00 IV > 3.00 to 1.00 but 2.753.00% 1.752.00% β€ 4.00 to 1.00 V > 4.00 to 1.00 but 3.25% 2.25% β€ 5.00 to 1.00 VI > 5.00 to 1.00 3.50% 2.50% For purposes of the foregoing, the Applicable Margin shall be determined as of the end of each Fiscal Quarter of Livent based upon Liventβs annual or quarterly consolidated financial statements and compliance certificate delivered pursuant to Section 6.02(a) each change in the Applicable Margin resulting from a change in the First Lien Leverage Ratio shall be effective three (3) Business Days after the Administrative Agent has received the annual or quarterly consolidated financial statements and compliance certificate delivered pursuant to Section 6.02(a) and shall apply during the period commencing on and including the effective date of such change and ending on the date immediately preceding the effective date of the next such change; provided, that the First Lien Leverage Ratio shall be deemed to be in Pricing Level IVVI if Livent fails to deliver the annual or quarterly consolidated financial statements or compliance certificate required to be delivered by it pursuant to Section 6.02(a) during the period commencing three (3) Business Days from the expiration of the time for delivery thereof until three (3) Business Days after such consolidated financial statements are delivered. βApproved Fundβ means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. βArrangersβ means Citibank, Merrill, Credit Suisse and Goldman, in their respective capacities as joint lead arrangers. βAssignment and Acceptanceβ means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C-1 hereto. βAvailable Amount Basketβ means, at any date (the βReference Dateβ), an amount, not less than zero in the aggregate, determined on a cumulative basis equal to: (a) $25.0 million, plus 3 -
(b) 50% of Liventβs and its Restricted Subsidiaries Consolidated net income (determined in accordance with GAAP) (or if Consolidated net income (determined in accordance with GAAP) is negative, 100% of such deficit) determined for the period (taken as one accounting period) commencing with the Fiscal Quarter ending on December 31, 2018, plus (c) the cumulative amount of cash and the fair market value of returns (including dividends, interest, distributions, interest payments, returns of principal, repayments, income and similar amounts) received by Livent or any Restricted Subsidiary in respect of any Investments made using the Available Amount Basket during the period from and including the Business Day immediately following the Effective Date through and including the Reference Date, provided, that in no event shall the amount added to the Available Amount Basket pursuant to this clause (c) exceed the original amount of the applicable Investment made using the Available Amount Basket; plus (d) in the case of the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary, the fair market value at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary of the amount of all Investments in such Unrestricted Subsidiary made using the Available Amount Basket during the period from and including the Business Day immediately following the Effective Date through and including the Reference Date, provided, that in no event shall the amount added to the Available Amount Basket pursuant to this clause (d) exceed the lesser of (i) the original amount of the applicable Investment made using the Available Amount Basket, and (ii) the fair market value at the time of the redesignation of such Unrestricted Subsidiary as a Restricted Subsidiary, minus (e) an amount equal to the sum of (i) Investments made in respect of the Available Amount Basket, plus (ii) Restricted Payments made in respect of the Available Amount Basket, in each case, after the Effective Date and prior to such time or contemporaneously therewith. βAvailable LC Amountβ means, at any time, with respect to any Letter of Credit, the maximum amount available to be drawn under such Letter of Credit at such time (assuming compliance at such time with all conditions to drawing), provided, that if any Letter of Credit provides for future increases in the maximum amount available to be drawn under such Letter of Credit, then the βAvailable LC Amountβ of such Letter of Credit shall mean, at any time, the maximum amount available to be drawn under such Letter of Credit after taking into account all increases in the availability thereunder. βBail-In Actionβ means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution. βBail-In Legislationβ means, (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 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 4 -
financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). βBase Rateβ means, for any period, a fluctuating interest rate per annum as shall be in effect from time to time which rate per annum shall at all times be equal to the highest of: (a) the rate of interest announced publicly by Citibank in New York, New York, from time to time, as its βbase rateβ; (b) the Federal Funds Rate plus 1/2 of 1%; and (c) Eurocurrency Rate for a one- (1) month period plus 1%; provided, that for purposes of this clause (c), the Eurocurrency Rate shall be based on the Eurocurrency Rate at approximately 11:00 A.M. (London time) on such day of determination, but shall otherwise be calculated in accordance with the definition of βEurocurrency Rateβ (including the interest rate floors set forth therein); provided, in the event that the Base Rate is less than zero, it shall be deemed to be zero for purposes of this Agreement. βBase Rate Loanβ means a Loan denominated in Dollars which bears interest as provided in Section 2.06(a)(i). βBHC Act Affiliateβ means an βaffiliateβ (as such term is defined under, and interpreted in accordance with 12 U.S.C. 1841(k)) of a party. βBorrowersβ has the meaning specified in the introductory paragraph to this Agreement. βBorrowingβ means a borrowing consisting of simultaneous Revolving Loans of the same Type made by each of the Lenders pursuant to Section 2.01(a). βBusiness Dayβ means a day of the year on which banks are not required or authorized by law to close in New York City and, if the applicable Business Day relates to any Eurocurrency Rate Loans, on which dealings are carried on in the London interbank market (or, in the case of Loans denominated in Euros, on which the Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET) System is open). βCapital Leaseβ means, with respect to any Person, any lease of, or other arrangement conveying the right to use, property by such Person as lessee that would be accounted for as a capital lease on a balance sheet of such Person prepared in conformity with GAAP. βCapital Lease Obligationsβ means, with respect to any Person, the capitalized amount of all Consolidated obligations of such Person or any of its Subsidiaries under Capital Leases. βCash Collateralizeβ means, in respect of an obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars or Alternate Currency specified by the Administrative Agent, at a location and pursuant to documentation in form and 5 -
substance reasonably satisfactory to the Administrative Agent (and βCash Collateralβ and βCash Collateralizationβ have corresponding meanings). βCash Equivalentsβ means: (a) direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof; (b) investments in commercial paper maturing within one (1) year from the date of acquisition thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or from Xxxxxβx; (c) investments in certificates of deposit, bankersβ acceptances and time deposits maturing within one (1) year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by any domestic office of any commercial bank organized under the laws of the United States of America or any State thereof which has a combined capital and surplus and undivided profits of not less than $500 million; (d) fully collateralized repurchase agreements with a term of not more than 30 days for securities described in clause (a) above and entered into with a financial institution satisfying the criteria described in clause (c) above; (e) money market funds that (i) comply with the criteria set forth in Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA by S&P and Aaa by Xxxxxβx and (iii) have portfolio assets of at least $5 billion; (f) marketable direct obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof maturing within one (1) year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Xxxxxβx; and (g) other short-term investments made by Restricted Subsidiaries that are not Domestic Subsidiaries in accordance with normal investment practices for cash management in the relevant jurisdiction in investments of a credit quality and tenor comparable, in each case, in such Restricted Subsidiaryβs ordinary course of business, to the foregoing. βCFCβ means a βcontrolled foreign corporationβ as defined in Section 957 of the Code. βChange in Lawβ 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 Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection 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 6 -
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 βChange in Lawβ, regardless of the date enacted, adopted or issued. βChange of Controlβ means the occurrence of any of the following: (a) any Person or group of Persons (within the meaning of the Securities Exchange Act of 1934) shall have acquired beneficial ownership (within the meaning of Rule 13d-3 of the SEC under the Securities Exchange Act of 1934) of 30% or more of the issued and outstanding Voting Stock of Livent; provided, that such ownership by FMC and/or one of its Wholly-Owned Subsidiaries shall not trigger a βChange of Controlβ pursuant to this clause (a), (b) Livent shall fail to own directly 100% of the issued and outstanding Stock of Lithium Opco or (c) during any period of twenty-four (24) consecutive calendar months, individuals who at the beginning of such period constituted the board of directors of Livent (together with any new directors whose election by the board of directors of Livent or whose nomination for election by the stockholders of Livent was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of such period or whose elections or nomination for election was previously so approved) cease for any reason other than death or disability to constitute a majority of the directors then in office. βCitibankβ means Citibank, N.A., a national banking association, and its successors. βCodeβ means the Internal Revenue Code of 1986 and the regulations promulgated and rulings issued thereunder. βCollateralβ has the meaning given to βCollateralβ in the Security Agreement. βCollateral Documentsβ means collectively, the Security Agreement, each Mortgage, each Intellectual Property Security Agreement (as defined in the Security Agreement), all security agreements, pledge agreements, collateral assignments, mortgages, deeds of trust, collateral agency agreements, control agreements or other grants or transfers for security executed and delivered by any Borrower or any other Loan Party creating (or purporting to create) a Lien upon Collateral in favor of the Administrative Agent and any supplement or amendment to any of the foregoing delivered to any Administrative Agent pursuant to the terms hereof or any other Loan Document. βCommitmentβ means, as to any Lender, (a) the Dollar amount set forth opposite its name on Schedule I hereto (it being understood that such Commitment shall also constitute a Commitment with respect to Euros based on the then applicable Dollar Equivalent) or (b) if such Lender has entered into one or more Acceptances, the amount set forth for such Lender in the Register, in each case as the same may be increased or reduced as expressly provided herein (including pursuant to Sections 2.04, 3.06 and 9.07). βCommitment Feeβ means, as of any date, the commitment fee set forth below, based upon Liventβs First Lien Leverage Ratio as of the most recent determination date; provided, that until the delivery to the Administrative Agent, pursuant to Section 6.02(a), of Liventβs annual or quarterly consolidated financial statements and related compliance certificate for Liventβs first Fiscal Quarter ending after the First Amendment Effective Date, the βCommitment Feeβ shall be the applicable rate per annum set forth below in Pricing Level IIII: 7 -
First Lien Leverage Commitment Pricing Ratio Fee Level I β€ 1.00 to 1.00 0.35% II > 1.00 to 1.00 but 0.40% β€ 2.00 to 1.00 III > 2.00 to 1.00 but 0.45% β€ 3.00 to 1.00 IV > 3.00 to 1.00 but 0.50% β€ 4.00 to 1.00 V > 4.00 to 1.00 but 0.50% β€ 5.00 to 1.00 VI > 5.00 to 1.00 0.50% For purposes of the foregoing, (a) the Commitment Fee shall be determined as of the end of each Fiscal Quarter of Livent based upon Liventβs annual or quarterly consolidated financial statements and compliance certificate delivered pursuant to Section 6.02(a) and each change in the Commitment Fee resulting from a change in the First Lien Leverage Ratio shall be effective three (3) Business Days after the Administrative Agent has received the annual or quarterly consolidated financial statements and compliance certificate delivered pursuant to Section 6.02(a) and shall apply during the period commencing on and including the effective date of such change and ending on the date immediately preceding the effective date of the next such change; provided, that the First Lien Leverage Ratio shall be deemed to be in Pricing Level IVVI if Livent fails to deliver the annual or quarterly consolidated financial statements or compliance certificate required to be delivered by it pursuant to Section 6.02(a) during the period commencing three (3) Business Days from the expiration of the time for delivery thereof until three (3) Business Days after such consolidated financial statements are delivered. βCompliance Certificateβ has the meaning specified in Section 6.02(a)(iii). βConfidential Informationβ has the meaning specified in Section 9.11. βConnection Income Taxesβ means Other Connection Taxes that are imposed on or measured by Consolidated net income (determined in accordance with GAAP) (however denominated) or that are franchise Taxes or branch profits Taxes. βConsolidatedβ refers to the consolidation of accounts of each Borrower and its Subsidiaries (or Restricted Subsidiaries where applicable) in accordance with GAAP. βConsolidated Cash Balanceβ means, at any time, without duplication, the aggregate amount of cash and Cash Equivalents, marketable securities, treasury bonds and bills, certificates of deposit, investments in money market funds and commercial paper, in each case, held or owned by (either directly or indirectly) or otherwise required to be reflected as cash or a cash equivalent asset on the balance sheet of Livent and its Restricted Subsidiaries. 8 -
βConsolidated Total Assetsβ means, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption βtotal assetsβ (or any like caption) on a consolidated balance sheet of the applicable Person at such date. βConstituent Documentsβ means, with respect to any Person, (a) the articles of incorporation and/or organization, certificate of incorporation or certificate of formation (or the equivalent organizational documents) of such Person, (b) the by-laws, operating agreement (or the equivalent governing documents) of such Person and (c) any document setting forth the manner of election and duties of the directors or managing members of such Person (if any) and the designation, amount or relative rights, limitations and preferences of any class or series of such Personβs Stock. βContaminantβ means any material, substance or waste that is classified, regulated or otherwise characterized under any Environmental Law as hazardous, toxic, a contaminant or a pollutant or by other words of similar meaning or regulatory effect, including any greenhouse gas, petroleum or petroleum-derived substance or waste, asbestos and polychlorinated biphenyls. βContinuationβ, βContinueβ and βContinuedβ each refer to a continuation of Eurocurrency Rate Loans for an additional Interest Period pursuant to Section 2.12. βContractual Obligationβ means, as to any Person, any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its tangible or intangible property is bound. βCovered Entityβ means any of the following: (i) a βcovered entityβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§ 252.82(b), (ii) a βcovered bankβ as that term is defined in, and interpreted in accordance with 12 C.F.R. Β§ 47.3(b), or (iii) a βcovered FSIβ as that term is defined in, and interpreted in accordance with, 12 C.F.R. Β§ 382.2(b). βCovered Partyβ has the meaning specified in Section 9.20(a). βConversionβ, βConvertβ and βConvertedβ each refer to a conversion of Revolving Loans of one Type into Revolving Loans of the other Type pursuant to Section 2.12. βConvertible Indebtednessβ means Indebtedness of Livent (which may be guaranteed by the Guarantors) permitted to be incurred hereunder that is either (a) convertible into common equity of Livent (and cash in lieu of fractional shares) or cash (in an amount determined by reference to the price of such common equity) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common equity of Livent or cash (in an amount determined by reference to the price of such common equity). βCovenant Conversion Dateβ means March 31, 2021. βCredit Suisseβ means Credit Suisse Securities (USA) LLC. βCurrencyβ means Dollars or any Alternate Currency. 9 -
βCustomary Permitted Liensβ means, with respect to any Person, any of the following Liens: (a) Liens for taxes, assessments, governmental charges, claims or levies in each case that are not yet due or that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves (in the good faith judgment of the management of the respective Person) have been established; (b) Liens of landlords, liens in favor of utilities and liens of suppliers, mechanics, carriers, materialmen, warehousemen or workmen and other liens imposed by law or contract which were incurred in the ordinary course of business and (i) which secure amounts not yet due or (ii)(A) which do not in the aggregate materially detract from the value of such property (other than immaterial property) or materially impair the use thereof in the operation of the business of any Person or (B) which Liens (or the amounts secured thereby) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing the forfeiture or sale of the property subject to such Lien and with respect to which adequate reserves (in the good faith judgment of the management of the respective Person) have been established; (c) Liens incurred or deposits made in the ordinary course of business in connection with workersβ compensation, unemployment insurance or other types of social security benefits or to secure the performance of trade contracts, bids, tenders, statutory and regulatory obligations, sales, contracts (other than for the repayment of borrowed money), performance bonds, bid bonds, appeal bonds, leases, government contracts or customs bonds and other similar obligations incurred in the ordinary course of business; (d) encumbrances arising by reason of zoning restrictions, easements, licenses, reservations, covenants, rights-of-way, utility easements, building restrictions and other similar encumbrances on the use of real property not materially detracting from the value of such real property or not materially interfering with the ordinary conduct of the business conducted and proposed to be conducted at such real property; (e) encumbrances, easements, rights-of-way, restrictions, minor defects or irregularities in title and other similar charges or encumbrances not interfering in any material respect with the ordinary conduct of the business of any Person; (f) encumbrances arising under leases or subleases of real property that do not, in the aggregate, materially detract from the value of such real property or interfere with the ordinary conduct of the business conducted at such real property; (g) financing statements with respect to a lessorβs rights in and to personal property leased to such Person in the ordinary course of such Personβs business; (h) Liens arising from judgments, decrees or attachments and Liens securing appeal bonds arising from judgments, in each case in circumstances not constituting an Event of Default, provided, that no cash or property is deposited or delivered to secure any such judgment or award; 10 -
(i) Liens encumbering goods under production and arising from progress or partial payments by any Borrower or any of its respective Restricted Subsidiaries relating to the underlying goods; (j) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of business; (k) Liens of a collecting bank arising in the ordinary course of business under Section 4-208 of the UCC in effect in the relevant jurisdiction covering only the items being collected upon; (l) Liens granted by a Restricted Subsidiary that is not a Loan Party in favor of any Borrower or another Loan Party in respect of Indebtedness owed by such Restricted Subsidiary; (m) Liens arising by operation of law under Article 2 of the UCC in favor of a reclaiming seller of goods or buyer of goods; (n) brokerβs Liens, bankersβ Liens, rights of setoff and other similar Liens existing solely with respect to cash and Cash Equivalents on deposit in one or more accounts maintained by each Borrower or any of its Restricted Subsidiaries, in each case, granted in the ordinary course of business in favor of the bank or banks with which such accounts are maintained, including any such Liens or rights of setoff securing amounts owing in the ordinary course of business to such bank with respect to cash management and operating account arrangements, including those involving pooled accounts and netting arrangements; (o) licenses, sub-licenses and other similar encumbrances incurred in the ordinary course of business that do not materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of either Borrower or any Restricted Subsidiary; (p) Liens on cash or Cash Equivalents constituting xxxxxxx money deposits made by any Borrower or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement for a Permitted Acquisition; (q) non-exclusive licenses of intellectual property granted by the Borrowers or any of their respective Restricted Subsidiaries in the ordinary course of business that do not interfere in any material respect with the ordinary conduct of the businesses of the Borrowers or any of their respective Restricted Subsidiaries; and (r) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business. βDefaultβ means any Event of Default or any event that would constitute an Event of Default but for the requirement that notice be given or time elapse or both. βDefault Interestβ has the meaning specified in Section 2.06(b). 11 -
βDefault Rightβ has the meaning assigned to such term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. βDefaulting Lenderβ means at any time, subject to Section 2.13(e), (a) any Lender that has failed to comply with its obligations under this Agreement to make a Loan, make a payment to any Issuing Bank in respect of a Letter of Credit, or pay to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder (each a βFunding Obligationβ) within two (2) Business Days of the date such Funding Obligation was required to be funded hereunder unless such Lender notifies the Administrative Agent and Livent in writing that such failure is the result of such Lenderβs good faith 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, (b) any Lender that has notified the Administrative Agent, Livent or the Issuing Bank in writing, or has stated publicly, that it does not intend to comply with its Funding Obligations hereunder (unless such writing or public statement relates to such Lenderβs obligation to fund a Loan hereunder and states that such position is based on such Lenderβs good faith determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) any Lender that has defaulted on its funding obligations under any other loan agreements or credit agreements generally, (d) any Lender that has, for three or more Business Days after written request of the Administrative Agent or Livent, failed to confirm in writing to the Administrative Agent and Livent that it will comply with its prospective funding obligations hereunder (provided, that such Lender will cease to be a Defaulting Lender pursuant to this clause (d) upon the Administrative Agentβs and Liventβs receipt of such written confirmation), (e) any Lender with respect to which a Lender Insolvency Event has occurred and is continuing with respect to such Lender or its Parent Company or (f) any Lender that has, or has a Parent Company that has, become the subject of a Bail-in Action (provided, in each case, that neither the reallocation of Funding Obligations provided for in Section 2.13 as a result of a Lenderβs being a Defaulting Lender nor the performance by Non-Defaulting Lenders of such reallocated Funding Obligations will by themselves cause the relevant Defaulting Lender to become a Non-Defaulting Lender). Notwithstanding anything to the contrary above, any determination by the Administrative Agent that a Lender is a Defaulting Lender under any of clauses (a) through (e) above will be conclusive and binding absent manifest error, and such Lender will be deemed to be a Defaulting Lender (subject to Section 2.13(e)) upon notification of such determination by the Administrative Agent to Livent, the Issuing Banks and the Lenders. βDesignated Non-Cash Considerationβ means the fair market value of non-cash consideration received by any Borrower or any of its respective Restricted Subsidiaries in connection with a Disposition made pursuant to Section 6.04(e)(xii) that is designated as βDesignated Non-Cash Considerationβ on the date received pursuant to a certificate of a responsible officer of Livent setting forth the basis of such fair market value (with the amount of Designated Non-Cash Consideration in respect of any Disposition being reduced for purposes of Section 6.04(e)(xii) upon such Borrower or such Restricted Subsidiary converting the same to cash or Cash Equivalents following the closing of the applicable Disposition). βDisclosure Documentsβ means, collectively, the Form S-1 dated as of August 27, 2018, including the financial statements included therein, along with any amendments thereto, filed by Livent with the SEC. 12 -
βDispositionβ or βDisposeβ means the sale, transfer, license, lease or other disposition of any property by any Person (or the granting of any option or other right to do any of the foregoing), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith. βDocumentary Letter of Creditβ means any Letter of Credit that is drawable upon presentation of documents evidencing the sale or shipment of goods purchased by any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of its business; provided, that neither Goldman, Credit Suisse nor any of their respective Affiliates shall be required to provide Documentary Letters of Credit. βDollar Equivalentβ means, with respect to any amount denominated in an Alternate Currency, the amount of Dollars that would be required to purchase such amount of such Alternate Currency, based upon the rate at which such Alternate Currency may be exchanged for Dollars (a) in the case of an amount denominated in any Alternate Currency other than Euros, in the London foreign exchange market at approximately 11:00 A.M. London time or (b) in the case of an amount denominated in Euros, in the London foreign exchange market at approximately 10:00 A.M. London time or, at the request of Livent, 11:00 A.M., Brussels time, in each case for delivery two (2) Business Days thereafter; provided, that, solely for purposes of calculating the amount of any fronting fee payable to any Issuing Bank pursuant to Section 2.03(b)(ii) that is otherwise calculated in Euros or the amount of any Reimbursement Obligations owing to any Issuing Bank pursuant to Section 3.02(g) or 3.02(h) in respect of any Letter of Credit denominated in Euros, βDollar Equivalentβ shall be the amount of Dollars that would be required to purchase such amount of Euros, based upon the rate determined by such Issuing Bank through its principal foreign exchange trading office at approximately 11:00 A.M. on the date two (2) Business Days prior to the date as of which the foreign exchange computation is made. βDollar Revolving Loanβ has the meaning specified in Section 2.01(a). βDollarsβ and β$β mean lawful money of the United States of America. βDomestic Lending Officeβ means, with respect to any Lender, the office of such Lender specified as its βDomestic Lending Officeβ in its administrative questionnaire delivered to the Administrative Agent or in the Acceptance pursuant to which it became a Lender, or such other office of such Lender as such Lender may from time to time specify to Livent and the Administrative Agent. βDomestic Subsidiaryβ means any Subsidiary of any Borrower organized under the laws of any state of the United States of America or the District of Columbia or any entity disregarded for U.S. tax purposes wholly owned by any Borrower or a Domestic Subsidiary. βEarly Termination Dateβ means March 31, 2019, if the Lithium IPO has not occurred on or before such date. βEBITDAβ means, with respect to Livent and its Restricted Subsidiaries, for any period, 13 -
(a) Consolidated net income (determined in accordance with GAAP) for such period, plus, without duplication and to the extent deducted from revenues in determining Consolidated net income (determined in accordance with GAAP) for such period, the sum of: (i) the aggregate amount of interest expense for such period; (ii) the aggregate amount of income and franchise tax expense for such period; (iii) all amounts attributable to depreciation and amortization for such period; (iv) all other non-cash charges and non-cash losses for such period; (v) all Non-Recurring Items for such period; (vi) all fees, expenses and charges incurred in connection with or arising as a result of any proposed or actual acquisitions, investments, asset sales or divestitures; and minus, without duplication and to the extent added to revenues in determining Consolidated net income (determined in accordance with GAAP) for such period, (b) the sum of: (i) all non-recurring non-cash gains during such period; (ii) the amount of cash used during such period to the extent charged against Consolidated net income (determined in accordance with GAAP) in a different period (excluding any item under clause (a)(vi) above); and (iii) the amount of cash used during such period relating to a Non-Recurring Item, all as determined on a consolidated basis with respect to Livent and its Restricted Subsidiaries in accordance with GAAP. For the purposes of calculating EBITDA for any period, if during such period Livent or any of its Restricted Subsidiaries shall have made a material Acquisition, EBITDA for such period shall be calculated after giving pro forma effect thereto as if such material Acquisition occurred on the first day of such period. Notwithstanding the foregoing, EBITDA shall be deemed to be $38 million, $45 million, $51 million and $48 million for the fiscal quarters ending on or about September 30, 2017, December 31, 2017, March 31, 2018 and June 30, 2018, respectively. βECPβ means an βeligible contract participantβ as defined in Section 1(a)(18) of the Commodity Exchange Act or any regulations promulgated thereunder and the applicable rules issued by the Commodity Futures Trading Commission and/or the SEC. βEEA Financial Institutionβ means (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 14 -
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. βEEA Member Countryβ means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. βEEA Resolution Authorityβ means 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. βEffective Dateβ has the meaning specified in Section 4.02. βEligible Assigneeβ means a Lender and any Affiliate of such Lender or any other Person approved in writing by the Administrative Agent, the Issuing Banks (to the extent an assignment relates to Revolving Loans and related Commitments) and Livent (in the case of Livent, such approval not to be unreasonably withheld, delayed or conditioned); provided, that none of the following shall be an Eligible Assignee: (a) any natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), (b) any Borrower or any Affiliates of such Borrower or (c) any Defaulting Lender. βEMUβ means economic and monetary union as contemplated in the Treaty on European Union. βEmployee Matters Agreementβ shall mean the employee matters agreement between Livent and FMC, as described in the Disclosure Documents, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time. βEMU Legislationβ means legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency (whether known as the euro or otherwise), being in part the implementation of the third stage of EMU. βEnvironmental Lawβ means any federal, state or local law, rule, regulation, order, writ, judgment, injunction, decree, determination or award relating to the environment, health, safety or hazardous materials, including the Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal Insecticide, Fungicide and Rodenticide Act, the Occupational Safety and Health Act and Regulation (EC) No. 1907/2006 β Registration, Evaluation, Authorization and Restrictions of Chemicals. βEnvironmental Liabilities and Costsβ means, with respect to any Person, all liabilities, obligations, responsibilities, Remedial Actions, losses, damages, punitive damages, consequential damages, treble damages, costs and expenses (including all fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute and whether arising under any Environmental Law, Permit, order or agreement with any Governmental Authority or other Person, in each case relating to any environmental, health or safety condition or to any Release or threatened Release 15 -
and resulting from the past, present or future operations of, or ownership of property by, such Person or any of its Subsidiaries. βEnvironmental Lienβ means any Lien in favor of any Governmental Authority for Environmental Liabilities and Costs. βERISAβ means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. βERISA Affiliateβ means any Person, trade or business (whether or not incorporated) who for purposes of Title IV of ERISA is a member of any Borrowerβs controlled group, or is treated as a βsingle employerβ within the meaning of Section 414(b) or 414(c) of the Code, or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. βERISA Eventβ means, with respect to any Person, (a) the occurrence of a reportable event, within the meaning of Section 4043(b) or (c) of ERISA, with respect to any Plan of such Person or any of its ERISA Affiliates unless the thirty- (30) day notice requirement with respect to such event has been waived by the PBGC; (b) the provision by the administrator of any Plan of such Person or any of its ERISA Affiliates of a notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA with respect to a termination described in Section 4041(c)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (c) the cessation of operations at a facility of such Person or any of its ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA; (d) the complete or partial withdrawal by such Person or any of its ERISA Affiliates from a Plan or Multiemployer Plan subject to Section 4063 of ERISA Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (e) the failure by such Person or any of its ERISA Affiliates to make any payment or contribution to a Plan required under the minimum funding standards of ERISA; (f) a determination that any Plan is in βat riskβ status (within the meaning of Section 303 of ERISA or Section 430 of the Code); (g) the institution by the PBGC of proceedings to terminate a Plan of such Person or any of its ERISA Affiliates, pursuant to Section 4042 of ERISA; or (h) any other event or condition with respect to a Plan that could result in the liability of any Borrower or ERISA Affiliate. βEU Bail-In Legislation Scheduleβ means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. βEuroβ means the single currency of Participating Member States of the European Union. βEuro Revolving Loanβ has the meaning specified in Section 2.01(a). βEurocurrency Lending Officeβ means, with respect to any Lender, the office of such Lender specified as its βEurocurrency Lending Officeβ in its administrative questionnaire delivered to the Administrative Agent or in the Acceptance pursuant to which it became a Lender (or, if no such office is specified, its Domestic Lending Office), or such other office of such Lender as such Lender may from time to time specify to Livent and the Administrative Agent. 16 -
βEurocurrency Liabilitiesβ has the meaning assigned to that term in Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time. βEurocurrency Rateβ means, for any Interest Period for each Eurocurrency Rate Loan comprising part of the same Borrowing, the rate per annum appearing on Reuters Screen LIBOR01 Page (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market, the βScreen Rateβ) as the London interbank offered rate for deposits in the applicable currency at approximately 11:00 A.M. (London time) on the second Business Day immediately preceding the first day of such Interest Period, for a term comparable to such Interest Period; provided, that the Eurocurrency Rate shall not be less than zero; provided, further, that if the applicable Screen Rate shall not be available at such time for such Interest Period (an βImpacted Interest Periodβ) with respect to the relevant currency, then the Eurocurrency Rate shall be the Interpolated Rate at such time, provided, further, that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. βInterpolated Rateβ means, at any time, the rate per annum determined by the Administrative Agent (which determination shall be conclusive and binding absent manifest error) to be equal to the rate that results from interpolating on a linear basis between: (a) the applicable Screen Rate for the longest period (for which that Screen Rate is available in the relevant currency) that is shorter than the Impacted Interest Period and (b) the Screen Rate for the shortest period (for which that Screen Rate is available in the relevant currency) that exceeds the Impacted Interest Period, in each case, at such time. βEurocurrency Successor Rateβ has the meaning specified in Section 2.07. βEurocurrency Successor Rate Conforming Changesβ means, with respect to any proposed Eurocurrency Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other administrative matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption of such Eurocurrency Successor Rate 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 that no market practice for the administration of such Eurocurrency Successor Rate exists, in such other manner of administration as the Administrative Agent determines in consultation with Livent). βEurocurrency Rate Loanβ means a Loan denominated in Dollars or Euros which bears interest as provided in Section 2.06(a)(ii). βEurocurrency Rate Reserve Percentageβ of any Lender for any Interest Period for any Eurocurrency Rate Loan means the reserve percentage applicable during such Interest Period (or if more than one such percentage shall be so applicable, the daily average of such percentages for those days in such Interest Period during which any such percentage shall be so applicable) under regulations issued from time to time by the Board of Governors of the Federal Reserve System (or any successor) for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) for such Lender with 17 -
respect to liabilities or assets consisting of or including Eurocurrency Liabilities having a term equal to such Interest Period. βEvents of Defaultβ has the meaning specified in Section 7.01. βExcluded Domestic Holdcoβ means a Domestic Subsidiary that has no material assets other than Stock (and, if applicable, Stock and Indebtedness) of one or more Excluded Foreign Subsidiaries described in clause (a) of the definition of βExcluded Foreign Subsidiary.β βExcluded Foreign Subsidiaryβ means a Foreign Subsidiary which is (a) a CFC that has not guaranteed or pledged any of its assets to secure, or with respect to which there shall not have been pledged two-thirds or more of the voting Stock to secure, any Indebtedness (other than the Loans) of a Loan Party or any other Subsidiary of Livent which is a United States person within the meaning of Section 7701(a)(30) of the Code, or (b) a Foreign Subsidiary owned by a Foreign Subsidiary described in clause (a). βExcluded Hedging Contractβ means, with respect to any Guarantor, any Hedging Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Hedging Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantorβs failure for any reason to constitute an ECP at the time the Guarantee of such Guarantor or the grant of such security interest becomes or would become effective with respect to such Hedging Obligation. If a Hedging Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Hedging Obligation that is attributable to swaps for which such Guarantee or security interest is or becomes illegal. βExcluded Subsidiaryβ means each Excluded Domestic Holdco and each Excluded Foreign Subsidiary. βExcluded Taxesβ means 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 (other than pursuant to an assignment request by Livent under Section 3.06) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.10, 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 lending office, (c) Taxes attributable to such Recipientβs failure to comply with Section 2.10(g) and (d) any U.S. federal withholding Taxes imposed under FATCA. 18 -
βFacilityβ means the Commitments and the provisions herein relating to the Revolving Loans and Letters of Credit. βFactoring or Receivables Transactionβ means (a) any transaction or series of transactions that may be entered into by any Person pursuant to which such Person may directly or indirectly sell, convey or otherwise transfer Receivables to any buyer, purchaser or lender of interests in Receivables, including any factoring agreement or similar transaction and (b) any transaction or series of transactions that may be entered into by any Person pursuant to which such Person may directly or indirectly sell, convey or otherwise transfer Receivables to another Person, or may grant a security interest in, any Receivables of such Person, and any assets related thereto including all collateral securing such Receivables, proceeds of such Receivables and other assets which are customarily transferred or in respect of which security interests are customarily granted in connection with asset securitization transactions involving Receivables. βFATCAβ means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. βFederal Funds Rateβ means, for any period, a fluctuating interest rate per annum equal for each day during such period 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 that is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three federal funds brokers of recognized standing selected by it; provided, that the Federal Funds Rate shall not be less than zero. βFee Letterβ means that certain Fee Letter in respect of the Facility, dated as of August 28, 2018, between Livent and Citigroup Global Markets Inc. βFinal Maturity Dateβ means the date that is five (5) years after the Effective Date (or if such day is not a Business Day, the immediately preceding Business Day). βFirst Amendment Effective Dateβ means May 6, 2020. βFinancial Covenant Debtβ of any Person means Indebtedness of the type specified in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of the definition of βIndebtednessβ; provided, however, that (a) in the case of clause (c), such obligations shall be included in this definition of Financial Covenant Debt only to the extent such obligations are in respect of unreimbursed drawings under letters of credit, and (b) any obligations supported by a Letter of Credit shall not, to the extent so supported, be included in this definition of Financial Covenant Debt. βFirst Lien Leverage Ratioβ means, with respect to Livent and its Restricted Subsidiaries on a Consolidated basis as of any date, the ratio of (a) Financial Covenant Debt as of such date that is secured by a Lien on any asset or property of Livent or its Restricted 19 -
Subsidiaries on a pari passu or senior basis with the Loans and the Commitments, minus the amount of cash and Cash Equivalents that are or would be included on a balance sheet of Livent and its Subsidiaries as of such date to the extent such cash and Cash Equivalents is not or would not be listed as βrestrictedβ on such balance sheet in accordance with GAAP to (b) EBITDA for the last four Fiscal Quarters ending on or before such date. βFiscal Quarterβ means each of the three- (3) month periods ending on March 31, June 30, September 30 and December 31. βFiscal Yearβ means the twelve- (12) month period ending on December 31. βFlood Insuranceβ means, for any Material Real Property (including any personal property Collateral located on such Material Real Property) located in a Special Flood Hazard Area, Federal Flood Insurance or private insurance reasonably satisfactory to the Administrative Agent, in either case, that (a) meets the requirements of FEMA and any other applicable federal agencies, (b) includes a deductible not to exceed $50,000 and (c) has a coverage amount equal to the lesser of (i) the insurable value of the buildings and any personal property Collateral located on the Material Real Property as determined by the Administrative Agent or (ii) the maximum policy limits set under the National Flood Insurance Program. βFlood Insurance Requirementsβ means, with respect to any Mortgages, Administrative Agent shall have received: (i) evidence as to whether the applicable Material Real Property is located in a Special Flood Hazard Area pursuant to a standard flood hazard determination form ordered and received by the Administrative Agent, and (ii) if such Material Real Property is located in a Special Flood Hazard Area, (A) evidence as to whether the community in which such Material Real Property is located is participating in the National Flood Insurance Program, (B) the applicable Loan Partyβs written acknowledgment of receipt of written notification from Administrative Agent as to the fact that such Material Real Property is located in a Special Flood Hazard Area and as to whether the community in which such Material Real Property is located is participating in the National Flood Insurance Program and (C) copies of the applicable Loan Partyβs application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to Administrative Agent and naming Administrative Agent as sole loss payee on behalf of the Secured Parties in the amounts required by an applicable Requirement of Law. βFMCβ has the meaning specified in the recitals to this Agreement. βFMC Lithium Assetsβ shall mean the assets and operations of FMC and certain of its Subsidiaries that are described as the βLithium Assetsβ in the relevant Separation Agreements. βFMC Lithium Liabilitiesβ shall mean the liabilities of FMC and certain of its Subsidiaries that are described as the βLithium Liabilitiesβ in the relevant Separation Agreements. βFMC Lithium Assets Contributionβ has the meaning specified in the recitals to this Agreement. βForeign Currency Equivalentβ means, with respect to any amount in Dollars, the amount of an Alternate Currency that could be purchased with such amount of Dollars using the 20 -
reciprocal of foreign exchange rate(s) specified in the definition of the term βDollar Equivalentβ, as determined by the Administrative Agent. βForeign Lenderβ means any Lender that is not a βUnited States personβ as defined in Section 7701(a)(30) of the Code. βForeign Subsidiaryβ means any Subsidiary of Livent that is not a Domestic Subsidiary. βGAAPβ means generally accepted accounting principles in the United States of America as in effect from time to time, except that, with respect to the determination of compliance by the Borrowers with the covenants set forth in Section 6.01, βGAAPβ shall mean such principles in the United States of America as in effect as of the date of, and used in, the preparation of the audited combined financial statements of Livent referred to in Section 5.03. βGoldmanβ means Xxxxxxx Sachs Bank USA. βGovernmental Authorityβ means any nation, sovereign or government, any state or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government, including any central bank and any supra-national bodies (such as the European Union or the European Central Bank). βGranting Lenderβ has the meaning specified in Section 9.07(a). βGuaranteeβ means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any Indebtedness of another Person, if the purpose or intent of such Person in incurring the Guarantee is to provide assurance to the obligee of such Indebtedness that such Indebtedness will be paid or discharged, or that any agreement relating thereto will be complied with, or that any holder of such Indebtedness will be protected (in whole or in part) against loss in respect thereof, including (a) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of Indebtedness of another Person and (b) any liability of such Person for Indebtedness of another Person through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such Indebtedness or any security therefor, or to provide funds for the payment or discharge of such Indebtedness (whether in the form of a loan, advance, stock purchase, capital contribution or otherwise), (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another Person, (iii) to make take-or-pay or similar payments outside of the ordinary course of business, if required, regardless of non-performance by any other party or parties to an agreement, (iv) to purchase, sell or lease (as lessor or lessee) property, or to purchase or sell services, primarily for the purpose of enabling the debtor to make payment of such Indebtedness or to assure the holder of such Indebtedness against loss or (v) to supply funds to, or in any other manner invest in, such other Person (including to pay for property or services irrespective of whether such property is received or such services are rendered), if in the case of any agreement described under clause (b)(i), (ii), (iii), (iv) or (v) above the primary purpose or intent thereof is to provide assurance that Indebtedness of another Person will be paid or discharged, that any agreement relating thereto will be complied with or that any holder of such Indebtedness will be protected 21 -
(in whole or in part) against loss in respect thereof. The amount of any Guarantee shall be equal to the amount of the Indebtedness so guaranteed or otherwise supported. βGuarantied Obligationsβ has the meaning specified in Section 10.01(a). βGuarantorβ means on and after the Effective Date, (a) each of Liventβs Wholly- Owned Subsidiaries which is a Material Domestic Subsidiary (other than Lithium Opco) and (b) each Borrower (other than as to its direct obligations); provided, that subject to any administrative requirements of the Administrative Agent and the Lenders (including with respect to any βknow your clientβ or similar requirements), Livent may elect to add additional Domestic Subsidiaries as Guarantors so long as each such added Guarantor complies with Section 6.03(m) of this Agreement as if it were a newly acquired Wholly-Owned Subsidiary that is a Material Domestic Subsidiary at the time of such designation. βHedging Contractsβ means all Interest Rate Contracts, foreign exchange contracts, currency swap or option agreements, forward contracts, commodity swap, purchase or option agreements, other commodity price hedging arrangements, and all other similar agreements or arrangements designed to alter the risks of any Person arising from fluctuations in interest rates, currency values or commodity prices. βHedging Obligationβ means, with respect to any Person any obligation to pay or perform under any agreement, contract or transaction that constitutes a βswapβ within the meaning of section 1a(47) of the Commodity Exchange Act or any rules or regulations promulgated thereunder. Notwithstanding anything to the contrary in the foregoing, any Permitted Bond Hedge Transaction, any Permitted Warrant Transaction, and any obligations thereunder, in each case, shall not constitute Hedging Obligations. βImmaterial Domestic Subsidiaryβ means, as of any date, any Domestic Subsidiary of Livent (a) having total assets of less than 5.0% of Consolidated Total Assets of Livent and its Restricted Subsidiaries, and (b) the contribution to EBITDA of which does not exceed 5.0% of EBITDA of Livent and its Restricted Subsidiaries, in each case, as of the last day of the most recent Fiscal Year for which financial statements have been delivered to the Administrative Agent pursuant to Section 6.02(a)(ii); provided, that (i) the Consolidated Total Assets of all Immaterial Domestic Subsidiaries shall not exceed 7.5% of Consolidated Total Assets of Livent and its Material Domestic Subsidiaries at any time, and (ii) the contribution to EBITDA of all Immaterial Domestic Subsidiaries shall not exceed 7.5% of EBITDA of Livent and its Material Domestic Subsidiaries at any time. βIncrease Dateβ has the meaning specified in Section 2.04(b)(ii). βIncrease Noticeβ has the meaning specified in Section 2.04(b)(ii). βIncrease Notice Dateβ has the meaning specified in Section 2.04(b)(ii). βIncreasing Lenderβ means, in connection with any increase in the aggregate amount of the Commitments pursuant to Section 2.04(b), a Lender whose Commitment is increased pursuant to Section 2.04(b)(vi). 22 -
βIncremental Term Loan Amendmentβ has the meaning specified in Section 2.04(c)(vii). βIncremental Term Loan Commitmentsβ has the meaning specified in Section 2.04(c)(i). βIncremental Term Loan Facilityβ has the meaning specified in Section 2.04(c)(i). βIncremental Term Loan Facility Dateβ has the meaning specified in Section 2.04(c)(ii). βIncremental Term Loan Facility Noticeβ has the meaning specified in Section 2.04(c)(ii). βIncremental Term Loan Facility Notice Dateβ has the meaning specified in Section 2.04(c)(ii). βIndebtednessβ of any Person means, as of any date of determination, without duplication, (a) indebtedness of such Person for borrowed money; (b) all obligations of such Person evidenced by notes, bonds (other than surety and performance bonds, which are covered in clause (c) below), debentures or similar instruments or that bear interest; (c) all reimbursement and other obligations with respect to letters of credit, bankersβ acceptances, surety bonds and performance bonds, whether or not matured; (d) all indebtedness for the deferred purchase price of property or services, other than trade payables incurred in the ordinary course of business that are not overdue; (e) all indebtedness of such Person created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property); (f) all Capital Lease Obligations of such Person and the present value of future rental payments under all synthetic leases; (g) all Guarantees of such Person; (h) all obligations of such Person to purchase, redeem, retire, defease or otherwise acquire for value any Stock or Stock Equivalents of such Person, valued, in the case of redeemable preferred stock, at the greater of its voluntary liquidation preference and its involuntary liquidation preference plus accrued and unpaid dividends; 23 -
(i) all net obligations payable by such Person in respect of Hedging Contracts of such Person; and (j) all Indebtedness of the type referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and general intangibles) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness. βIndemnified Partyβ has the meaning specified in Section 9.04(b). βIndemnified Taxesβ means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrowers under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. βInterest Coverage Ratioβ means, with respect to Livent and its Restricted Subsidiaries on a Consolidated basis for any period, the ratio of EBITDA for such period to Net Consolidated Interest Expense for such period. βInterest Incomeβ means, with respect to any Person, on a Consolidated basis for any period, total interest income for such period on a Consolidated basis in conformity with GAAP. βInterest Periodβ means, with respect to each Eurocurrency Rate Loan, the period commencing on the date of such Eurocurrency Rate Loan and ending one, two, three or six calendar months thereafter, as any Borrower (on its own behalf and on behalf of the other Borrower) may, upon notice received by the Administrative Agent not later than 11:00 A.M. on the third Business Day prior to the first day of such Interest Period, select; provided, that: (a) the Borrowers may not select any Interest Period that ends after the Final Maturity Date; (b) Interest Periods commencing on the same date for Revolving Loans comprising part of the same Borrowing shall be of the same duration; (c) whenever the last day of any Interest Period would otherwise occur on a day other than a Business Day, the last day of such Interest Period shall be extended to occur on the next succeeding Business Day, provided, in the case of any Interest Period for a Eurocurrency Rate Loan, that if such extension would cause the last day of such Interest Period to occur in the next following calendar month, the last day of such Interest Period shall occur on the next preceding Business Day; and (d) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period. βInterest Rate Contractsβ means all interest rate swap agreements, interest rate cap agreements, interest rate collar agreements and interest rate insurance. 24 -
βInvestmentβ means, with respect to any Person, (a) any purchase or other acquisition by such Person of (i) any security issued by, (ii) a beneficial interest in any security issued by, or (iii) any other equity ownership interest in, any other Person, (b) any purchase by such Person of all or a significant part of the assets of a business conducted by any other Person, or all or substantially all of the assets constituting the business of a division, branch or other unit operation of any other Person, (c) any loan, advance (other than deposits with financial institutions available for withdrawal on demand, prepaid expenses, accounts receivable and similar items made or incurred in the ordinary course of business as presently conducted) or capital contribution by such Person to any other Person, including all Indebtedness of any other Person to such Person arising from a sale of property by such Person other than in the ordinary course of its business, and (d) any Guarantees incurred by such Person in respect of Indebtedness of any other Person. βIRSβ means the United States Internal Revenue Service. βIssueβ means, with respect to any Letter of Credit, to issue, extend the expiry of or increase the maximum amount (including by deleting or reducing any scheduled decrease in such maximum amount) of, such Letter of Credit. The terms βIssuedβ and βIssuanceβ shall have a corresponding meaning βIssuing Bankβ means each Lender or Affiliate of a Lender that (a) is listed on the signature pages hereof as an βIssuing Bankβ or (b) hereafter becomes an Issuing Bank with the approval of the Administrative Agent and Livent by agreeing pursuant to an agreement with and in form and substance satisfactory to the Administrative Agent and Livent to be bound by the terms hereof applicable to Issuing Banks. βJoinder Agreementβ has the meaning specified in Section 6.03(m)(i). βL/C Cash Collateral Accountβ has the meaning specified in Section 7.02(b). βL/C Cash Collateral Account Collateralβ has the meaning specified in Section 7.02(b). βL/C Cash Collateral Account Investmentsβ has the meaning specified in Section 7.02(c). βL/C Cash Collateral Account Obligationsβ has the meaning specified in Section 7.02(e)(i). βLeaseholdsβ of any Person means all the right, title and interest of such Person as lessee or licensee in, to and under leases or licenses of land, improvements and/or fixtures. βLender Insolvency Eventβ shall mean that (a) a Lender or its Parent Company is insolvent, or is generally unable to pay its debts as they become due, or admits in writing its inability to pay its debts as they become due, or makes a general assignment for the benefit of its creditors, or (b) such Lender or its Parent Company is the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its Parent Company. Notwithstanding anything to the contrary above, a Lender will not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Stock in such Lender or its Parent Company by 25 -
any Governmental Authority 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 authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. βLendersβ means the Lenders listed on the signature pages hereof and each Eligible Assignee that shall become a party hereto pursuant to Section 9.07 and shall include the Issuing Banks. βLetter of Creditβ has the meaning specified in Section 2.02. βLetter of Credit Commitmentβ means, as to any Issuing Bank, (a) the Dollar amount set forth opposite its name on Schedule I hereto or (b) such other amount as agreed to by the Issuing Bank and Livent. βLetter of Credit Loanβ means a payment by an Issuing Bank of a drawing under any Letter of Credit pursuant to Section 3.02 or, without duplication, a payment by a Lender in respect thereof pursuant to Section 3.02. βLetter of Credit Obligationsβ means, at any time, the aggregate of all liabilities at such time of the Borrowers to all Issuing Banks with respect to Letters of Credit, whether or not any such liability is contingent, including, without duplication, the sum of (a) the Reimbursement Obligations in respect of the Letters of Credit at such time and (b) Available LC Amount at such time. βLetter of Credit Reimbursement Agreementβ has the meaning specified in Section 3.02(d). βLetter of Credit Requestβ has the meaning specified in Section 3.02(b). βLetter of Credit Sub-Facilityβ has the meaning specified in Section 2.02. βLetter of Credit Sublimitβ has the meaning specified in Section 2.02. βLeverage Ratioβ means, with respect to Livent and its Restricted Subsidiaries on a Consolidated basis as of any date, the ratio of (a) Financial Covenant Debt as of such date, minus the amount of cash and Cash Equivalents that are or would be included on a balance sheet of Livent and its Subsidiaries as of such date to the extent such cash and Cash Equivalents is not or would not be listed as βrestrictedβ on such balance sheet in accordance with GAAP to (b) EBITDA for the last four Fiscal Quarters ending on or before such date. βLienβ means any mortgage, deed of trust, pledge, hypothecation, assignment, charge, deposit arrangement, encumbrance, lien (statutory or other), intellectual property license, security interest or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever intended to assure payment of any Indebtedness or the performance of any other obligation, including any conditional sale or other title retention agreement, the interest of a lessor under a Capital Lease and any financing lease having substantially the same economic effect as any of the foregoing, and the filing of any financing 26 -
statement under the UCC or comparable law of any jurisdiction naming the owner of the asset to which such Lien relates as debtor. βLithium IPOβ shall mean the initial underwritten public offering of common stock in Livent pursuant to an effective registration statement filed with the SEC pursuant to the Securities Act of 1933, as amended from time to time. βLithium Opcoβ has the meaning specified in the introductory paragraph to this Agreement. βLiventβ has the meaning specified in the introductory paragraph to this Agreement. βLiventβs Accountantsβ means KPMG LLP or other independent nationally- recognized public accountants acceptable to the Administrative Agent. βLiventβs Businessβ means Liventβs business of developing, manufacturing and/or selling, and providing research and development, marketing and/or other services and support for, lithium products and related organic and inorganic materials and any business reasonably related, incidental, complementary or ancillary thereto, as further detailed in the Disclosure Documents. βLoan Documentsβ means this Agreement, each Note, each Letter of Credit, the Collateral Documents, the Perfection Certificate, any Perfection Certificate Supplement and each certificate, agreement, instrument or document executed by a Loan Party and delivered to the Administrative Agent or any Lender in connection with or pursuant to any of the foregoing, including all other pledges, powers of attorney, consents, assignments, contracts, notices, letter of credit agreements and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Loan Party. βLoan Guarantyβ means Article X (Loan Guaranty) of this Agreement. βLoan Partiesβ means each Borrower and each Guarantor and their respective successors and assigns. βLoansβ means all Revolving Loans and all Letter of Credit Loans. βLocal Timeβ means, with respect to any Loan denominated, or any payment to be made, in Dollars, New York City time, and with respect to any Loan denominated, or any payment to be made, in an Alternate Currency, the local time in the Principal Financial Center for such Alternate Currency. βMargin Regulationsβ means, collectively, Regulations T, U and X, as from time to time in effect, and any regulation replacing the same, of the Board of Governors of the Federal Reserve System, or any successor thereto. βMaterial Adverse Changeβ means a material adverse change in any of (a) the business, condition (financial or otherwise), operations or properties of Livent and its Subsidiaries taken as a whole, (b) the legality, validity or enforceability of any Loan Document, (c) the ability of the Loan Parties to repay the Obligations or to perform their respective 27 -
obligations under the Loan Documents or (d) the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents. βMaterial Adverse Effectβ means an effect that results in or causes, or could reasonably be expected to result in or cause, a Material Adverse Change. βMaterial Contractβ means (a) Agreement, dated as of February 21, 1991, as amended, among the Province of Catamarca, Argentina, FMC Corporation and Minera del Altiplano S.A., as such agreement may be further amended, restated, amended and restated or otherwise modified from time to time, (b) the Separation Agreements and (c) all contracts or agreements the loss of which could reasonably be expected to result in a Material Adverse Effect on any Borrower or any of its respective Restricted Subsidiaries. βMaterial Domestic Subsidiaryβ means any Domestic Subsidiary of Livent that is not an Immaterial Domestic Subsidiary. βMaterial Real Propertyβ means (a) the North Carolina Facility, and (b) any parcel of Real Property owned in fee by any Loan Party and acquired after the Effective Date by such Loan Party having a fair market value in excess of $10 million. βMerrillβ means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, a Delaware corporation (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporationβs or any of its subsidiariesβ investment banking, commercial lending services or related businesses may be transferred following the date hereof). βMine OpCoβ means (a) Minera del Altiplano SA, a corporation formed under the laws of Argentina, which is involved in lithium mining and processing in Argentina and (b) any Subsidiary of Livent to which the assets of such Person are transferred at any point. "Mine OpCo Group Member" means (a) Mine OpCo, (b) any other Restricted Subsidiary that owns substantially all or a material portion of the assets of Mine OpCo owned on the Effective Date and (c) any direct or indirect parent or holding company of Mine OpCo or such other Restricted Subsidiary (other than Livent). βMoodyβsβ means Xxxxxβx Investors Service, Inc., or any successor by merger or consolidation to its business. βMortgagesβ means collectively, the deeds of trust, trust deeds, hypothecs and mortgages made by any Loan Party in favor or for the benefit of the Administrative Agent on behalf of the Secured Parties creating and evidencing a Lien on Material Real Property in form and substance reasonably satisfactory to the Administrative Agent and any other mortgage executed and delivered pursuant to Section 6.03(m), in each case, as the same may from time to time be amended, restated, supplemented or otherwise modified. βMortgage Requirementsβ means, with respect to any Material Real Property, (i) provision of (a) a policy or policies of title insurance together with customary endorsements requested by Administrative Agent issued by a nationally recognized title insurance company insuring the Lien of each Mortgage as a first priority Lien on the Material Real Property described therein free of any other Liens other than those permitted by this Agreement, (b) a 28 -
Mortgage executed by the applicable Loan Party in recordable form and otherwise in form and substance reasonably acceptable to Livent and the Administrative Agent, (c) a UCC fixture filing and (d) an ALTA survey which shall include all endorsements and certifications requested by Administrative Agent, (ii) recording of such Mortgage in the land records of the county in which such Material Real Property to be so encumbered is located and the filing of the UCC fixture filing, (iii) the Flood Insurance Requirements and (iv) a local counsel opinion as to the enforceability of such Mortgage in the state in which the Material Real Property described in such Mortgage is located in form and substance reasonably acceptable to the Administrative Agent. βMultiemployer Planβ means a multiemployer plan as defined in Section 4001(a)(3) of ERISA. βNational Flood Insurance Programβ means the program created by the U.S. Congress pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973, as revised by the National Flood Insurance Reform Act of 1994, that, among other things, mandates the purchase of flood insurance to cover real property improvements and contents located in Special Flood Hazard Areas in participating communities and may provide protection to property owners through a federal insurance program. βNet Consolidated Interest Expenseβ means, for any Person for any period, Consolidated interest expense for such period less the sum of (a) amortization of debt discount and premium for such period and (b) Interest Income for such period. βNew Commitment Acceptanceβ means a New Commitment Acceptance executed and delivered by a New Lender, and accepted by the Administrative Agent, in accordance with Section 9.07 and in substantially the form of Exhibit C-3 hereto. βNew Lenderβ means, for purposes of Sections 2.04(b), 2.04(c), and 9.07(c), an Eligible Assignee, approved by the Administrative Agent and the Issuing Banks (which approval shall not be unreasonably withheld), that Livent has requested to become a Lender hereunder pursuant to said Section 2.04(b) or 2.04(c), as applicable. βNorth Carolina Facilityβ means those parcels of real property located in Xxxxxx County, North Carolina, and owned by Lithium Opco in fee simple as listed on Schedule 5(a) of the Perfection Certificate executed and delivered by the Loan Parties as of the Effective Date. βNon-Consenting Lenderβ means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 9.01 and (b) has been approved by the Required Lenders. βNon-Defaulting Lenderβ means, at any time, a Lender that is not a Defaulting Lender. βNon-Recurring Itemsβ means, to the extent reflected in the determination of Consolidated net income (determined in accordance with GAAP) for any period, provisions for restructuring, discontinued operations, special reserves or other similar charges, including write- downs or write-offs of assets (other than write-downs resulting from foreign currency translations). 29 -
βNoteβ means a Revolving Loan Note. βNotice of Borrowingβ has the meaning specified in Section 3.01(a). βObligationsβ means principal of and interest on the Loans made by each Lender to, and the Notes held by each Lender of, each Borrower (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) and all accrued and unpaid fees and all expenses (including fees and expenses accruing during the pendency of any bankruptcy, insolvency, reorganization or other similar proceeding, regardless of whether allowed or allowable in such proceeding), reimbursements, indemnities and all other advances to, debts, liabilities and obligations of the Loan Parties, including any obligations owed pursuant to a Loan Guaranty by a Loan Party, to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising. βOFACβ means the U.S. Department of the Treasuryβs Office of Foreign Assets Control. βOther Connection Taxesβ means, 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). βOther Taxesβ means 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 (other than an assignment made pursuant to Section 3.06). βParent Companyβ means, with respect to a Lender, the bank holding company (as defined in Federal Reserve Board Regulation Y), if any, that is the direct or indirect parent of such Lender, and/or any Person owning, beneficially or of record, directly or indirectly, a majority of the Stock of such Lender. βParticipantβ has the meaning specified in Section 9.07(f). βParticipant Registerβ has the meaning specified in Section 9.07(f). βParticipating Member Stateβ means each state so described in any EMU Legislation. βParticipation Agreementβ means a loan participation agreement in substantially the form of Exhibit C-2 hereto. 30 -
βPatriot Actβ has the meaning specified in Section 9.16. βPBGCβ means the Pension Benefit Guaranty Corporation or any successor. βPerfection Certificateβ means that certain perfection certificate in the form of Exhibit D-1 to be executed and delivered by the Loan Parties, as it may be supplemented from time to time by a Perfection Certificate Supplement or otherwise. βPerfection Certificate Supplementβ means a perfection certificate supplement in the form of Exhibit D-2 to be executed and delivered by the Loan Parties, or any other form approved by the Administrative Agent βPermitβ means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under an applicable Requirement of Law. βPermitted Acquisitionβ means any Acquisition in which each of the following conditions is satisfied: (a) the Person or business which is the subject of such Acquisition is in a similar or complementary line of business as those of Livent and its Restricted Subsidiaries on the Effective Date or in a business reasonably related, incidental or ancillary thereto; (b) all governmental, corporate and material third-party approvals and consents necessary in connection with such Acquisition shall have been obtained and be in full force and effect; (c) if acquiring a Person, unless such Person is contemporaneously merged with and into Lithium OpCo or a Restricted Subsidiary of Livent, such Person becomes a Wholly-Owned Subsidiary of Livent and, simultaneously with such Acquisition, a Loan Party to the extent required by Section 6.03(m), with such Personβs Stock being pledged as Collateral to the extent required by Section 6.03(m); (d) such Acquisition shall be consummated in accordance with the terms of the purchase or acquisition agreement executed in connection therewith and with all other material agreements, instruments and documents implementing such Acquisition and in compliance with applicable law and regulatory approvals; (e) no Default or Event of Default shall have occurred and be continuing or would result therefrom and all representations and warranties contained in the Loan Documents shall be true and correct in all material respects on the date of the consummation of such Acquisition, except to the extent that any such representation or warranty specifically refers to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and (f) after giving effect to such Acquisition (including the incurrence, assumption or acquisition of any Indebtedness in connection therewith) the Leverage Ratio, calculated on a, Livent shall be in pro forma basiscompliance (as if such Acquisition had been consummated at the beginning of such period, shall be in compliance with) with (i) prior to the 31 -
Covenant Conversion Date, Section 6.01(a) and (ii) on and following the Covenant Conversion Date, Section 6.01(b). βPermitted Bond Hedge Transactionβ means any call or capped call option (or substantively equivalent derivative transaction) on Liventβs common stock (or other securities or property following a merger event, reclassification or other change of the common stock of Livent) purchased by Livent in connection with the issuance of any Convertible Indebtedness; provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by Livent from the sale of any related Permitted Warrant Transaction, does not exceed the net cash proceeds received by Livent or any other Loan Party from the sale of such Convertible Indebtedness issued in connection with the Permitted Bond Hedge Transaction. βPermitted Factoring or Receivables Transactionβ means one or more Factoring or Receivables Transactions, but only to the extent that the aggregate outstanding principal amount of Indebtedness in relation thereto does not exceed $75 million. βPermitted Warrant Transactionβ means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on Liventβs common stock (or other securities or property following a merger event, reclassification or other change of the common stock of Livent) sold by Livent in connection with and substantially concurrently with any purchase by Livent of a related Permitted Bond Hedge Transaction. βPersonβ means an individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, limited liability company, joint venture or other entity, or a government or any political subdivision or agency thereof. βPlanβ means any of (a) an βemployee benefit planβ (as defined in Section 3(2) of ERISA) that is subject to Title I of ERISA, (b) a βplanβ as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such βemployee benefit planβ or βplanβ. βPlan Asset Regulationsβ means 29 CFR Β§ 2510.3-101 et seq., as modified by Section 3(42) of ERISA. βPlan of Reorganizationβ shall mean the FMC Corporation Lithium Spin Transaction step plan dated as of September 17, 2018, prepared by PricewaterhouseCoopers LLP, as authorized and approved by the Board of Directors of Livent in connection with the Separation Transactions. βPrincipal Financial Centerβ means, in the case of any Currency, the principal financial center of the country of issue of such Currency, as determined by the Administrative Agent. βpropertyβ or βpropertiesβ means any right or interest in or to property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible. βProposed Aggregate Commitment Increaseβ has the meaning specified in Section 2.04(b)(i). 32 -
βProposed Increased Commitmentβ has the meaning specified in Section 2.04(b)(iv). βProposed Existing Lender Incremental Term Loan Commitmentβ has the meaning specified in Section 2.04(c)(iv). βProposed New Commitmentβ has the meaning specified in Sections 2.04(b)(iii). βProposed New Lender Incremental Term Loan Commitmentβ has the meaning specified in Section 2.04(c)(iii). βPTEβ means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exception may be amended from time to time. βQFCβ has the meaning assigned to the term βqualified financial contractβ in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). βQFC Credit Supportβ has the meaning specified in Section 9.20(a) βQualified ECP Guarantorβ means, in respect of any Hedging Obligation, each Loan Party that has total assets exceeding $10 million at the time the relevant Loan Guaranty or grant of the relevant security interest becomes or would become effective with respect to such Hedging Obligation or such other person as constitutes an βeligible contract participantβ under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as an βeligible contract participantβ at such time by entering into a keepwell under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. βQuarterly Datesβ means the first Business Day of each April, July, October and January, commencing on the first such date to occur after the Effective Date. βReceivableβ means a right to receive payment arising from the sale or lease of goods or services by a Person to another Person. βRecipientβ means (a) the Administrative Agent, (b) any Lender or (c) any Issuing Bank, as applicable. βReference Dateβ has the meaning specified in the definition of βAvailable Amount Basketβ. βRegisterβ has the meaning specified in Section 9.07(d). βRegistration Rights Agreementβ shall mean the registration rights agreement between Livent and FMC, as described in the Disclosure Documents, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time. βReimbursement Dateβ has the meaning specified in Section 3.02(g). 33 -
βReimbursement Obligationsβ means all matured reimbursement or repayment obligations of the Borrowers to any Issuing Bank with respect to amounts drawn under Letters of Credit. βRelated Partyβ has the meaning specified in Section 9.04(b). βReal Propertyβ of any Person shall mean all of the right, title and interest of such Person in and to land, improvements and fixtures, including Leaseholds and surface rights. βReleaseβ means, with respect to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, leaching or migration, in each case, of any Contaminant into the indoor or outdoor environment or into or out of any property owned by such Person, including the movement of Contaminants through or in the air, soil, surface water, ground water or property. βRemedial Actionβ means all actions required to (a) clean up, remove, treat or in any other way address any Contaminant in the indoor or outdoor environment, (b) prevent the Release or threat of Release or minimize the further Release so that a Contaminant does not migrate or endanger or threaten to endanger public health or welfare or the indoor or outdoor environment or (c) perform pre-remedial studies and investigations and post-remedial monitoring and care. βRequired Lendersβ means Lenders having more than 50% of the aggregate amount of the Commitments or, if the Commitments shall have terminated, Lenders holding more than 50% of the sum of (a) the aggregate unpaid principal amount of the Loans, plus (b) the aggregate Available LC Amount of all Letters of Credit (computed, in the case of Loans denominated in an Alternate Currency and Letters of Credit denominated in Euros, as the Dollar Equivalent thereof, as determined by the Administrative Agent); provided, that, for purposes hereof, neither any Borrower, nor any of its Affiliates, if a Lender, shall be included in (i) the Lenders holding such amount of the Loans or Available LC Amount of Letters of Credit or having such amount of the Commitments or (ii) determining the aggregate unpaid principal amount of the Loans or Available LC Amount of Letters of Credit or the total Commitments. For purposes of this definition, (A) the Available LC Amount of each Letter of Credit and the outstanding amount of each Letter of Credit Loan shall be considered to be owed to the Lenders ratably according to the amounts of their respective Revolving Loan Notes and Commitments (less, in the case of any Lender which is a Defaulting Lender as a result of a breach of its obligations under Section 3.02(c), the amount in respect of which such Lender is in default) and (B) the unused Commitment of any Defaulting Lender shall be disregarded in determining Required Lenders at any time in accordance with the second paragraph of Section 9.01. βRequirement of Lawβ means, with respect to any Person, the common law and all federal, state, local and foreign laws, rules and regulations, orders, judgments, decrees and other determinations of any Governmental Authority or arbitrator, applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject. βResolution Authorityβ means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. βRestricted Paymentβ means any dividend or other distribution (whether in cash, securities or other property) with respect to any Stock in or any of its respective Restricted 34 -
Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Stock in or any of its respective Restricted Subsidiaries or any option, warrant or other right to acquire any such Stock in or any of its respective Restricted Subsidiaries. βRestricted Subsidiaryβ means any Subsidiary of any of Livent (including Lithium Opco) other than an Unrestricted Subsidiary. βRevolving Loanβ means a Dollar Revolving Loan or a Euro Revolving Loan. βRevolving Loan Noteβ means a promissory note of a Borrower payable to the order of any Lender, in substantially the form of Exhibit A hereto, evidencing the aggregate indebtedness of such Borrower to such Lender resulting from the Revolving Loans made by such Lender to such Borrower. βRevolving Loan Outstandingsβ means, at any time, the then aggregate outstanding principal amount of all Revolving Loans (which shall be, in the case of Revolving Loans denominated in a Currency other than Dollars, the Dollar Equivalent thereof at such time). βS&Pβ means Standard & Poorβs Financial Services LLC, a subsidiary of S&P Global Inc., or any successor by merger or consolidation to its business. βSanctioned Countryβ means a country or territory that is subject or the target of a sanctions program administered or enforced by OFAC, the European Union, Her Majestyβs Treasury of the United Kingdom or the United Nations Security Council. βSanctioned Personβ means a Person that is the subject or target of Sanctions, including (a) an entity that is directly or indirectly controlled or owned 50% or more by the government of a Sanctioned Country, (b) a Person located, organized, or resident in a Sanctioned Country, to the extent the target of Sanctions or (c) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the European Union, Her Majestyβs Treasury of the United Kingdom, or the United Nations Security Council. Any Person directly or indirectly controlled or owned 50 percent or more by any Sanctioned Person is also a Sanctioned Person. βSanctionsβ means economic sanctions administered or enforced by OFAC, the U.S. Department of State, the European Union, Her Majestyβs Treasury of the United Kingdom, or the United Nations Security Council. βScheduled Unavailability Dateβ has the meaning specified in Section 2.07. βScreen Rateβ has the meaning specified in the definition of βEurocurrency Rate.β βSECβ means the United States Securities and Exchange Commission. βSecured Obligationsβ means all Obligations, together with all (a) obligations owing to any Person under any Specified Cash Management Agreement and (b) Hedging Obligations owing to any Person that, in each case under clauses (a) or (b), as applicable, at the 35 -
time of entering into such arrangement with a Loan Party or any Restricted Subsidiary, was the Administrative Agent, a Lender or an Affiliate thereof; provided, that (i) with respect to such Hedging Obligations, to the extent designated by Livent in a written statement (including by way of email) to the Administrative Agent as constituting Secured Obligations (provided, that, a single notice with respect to a specified Hedging Contract may designate all transactions thereunder as being Secured Obligations, without the need for separate notices for each individual transaction thereunder) and (ii) the definition of βSecured Obligationsβ shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Hedging Contract of such Guarantor for purposes of determining any obligations of any Guarantor. βSecured Partiesβ means the Administrative Agent, each Lender, each Issuing Bank, each provider under a Specified Cash Management Agreement, each counterparty to a Hedging Contract and each other provider of Secured Obligations as permitted pursuant to the definition thereof. βSecurity Agreementβ means that certain Pledge and Security Agreement substantially in the form attached hereto as Exhibit F, appropriately completed, to be entered into among the Loan Parties and the Administrative Agent, for the benefit of the Administrative Agent, the Lenders and the other Secured Parties, and any other pledge agreement or security agreement entered into, after the date of this Agreement by any Loan Party (as required by this Agreement or any other Loan Document). βSeparationβ has the meaning specified in the recitals to this Agreement. βSeparation Agreementsβ shall mean the Separation and Distribution Agreement, the Transition Services Agreement, Shareholdersβ Agreement, the Tax Matters Agreement, the Registration Rights Agreement, the Employee Matters Agreement, the Trademark License Agreement and any other agreements, instruments or other documents entered into in connection with any of the foregoing. βSeparation and Distribution Agreementβ shall mean the separation and distribution agreement between Livent and FMC, as described in the Disclosure Documents, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time. βSeparation Transactionsβ means the transactions contemplated by the Plan of Reorganization and the Separation Agreements. βShareholdersβ Agreementβ shall mean the shareholdersβ agreement between FMC and Livent, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time (including any additional or successor shareholder agreement between FMC and Livent). βSigning Dateβ has the meaning specified in Section 4.01. βSPCβ has the meaning specified in Section 9.07(a). βSpecial Flood Hazard Areaβ means an area that FEMA has designated as an area subject to special flood hazards, the current standard for which is at least a one percent (1%) 36 -
chance of a flood equal to or exceeding the base flood elevation (a 100-year flood) in any given year, as per the applicable flood maps. βSpecified Cash Management Agreementβ means any agreement providing for treasury, depositary, cash management or commercial, credit or debit card services, including in connection with any automated clearing house transactions, controlled disbursements, return items, overdrafts, interstate depository network services or any similar transactions between any Person (or guaranteed by any Person) and any other Person that (a) was a Lender (or any affiliate thereof) at the time such agreement was entered into or (b) with respect to any such agreement in effect as of the Effective Date, is, as of the Effective Date or within ninety (90) days thereafter, a Lender or an affiliate of such a Lender. Such designation shall not create in favor of such Lender or affiliate of a Lender any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party hereunder or under any Collateral Document. βStandby Letter of Creditβ means any Letter of Credit that is not a Documentary Letter of Credit. βStockβ means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity, whether voting or non-voting. βStock Equivalentβ means all securities convertible into or exchangeable for Stock and all warrants, options or other rights to purchase or subscribe for any Stock, whether or not presently convertible, exchangeable or exercisable. βSubsidiaryβ of any Person means any corporation, partnership, limited liability company, joint venture, trust or estate of which more than 50% of (a) the issued and outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time capital stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency), (b) the interest in the capital or profits of such partnership, limited liability company or joint venture or (c) the beneficial interest in such trust or estate is at the time directly or indirectly owned or controlled by such Person, by such Person and one or more of its other Subsidiaries or by one or more of such Personβs other Subsidiaries. βSubsidiary Redesignationβ has the meaning specified in the definition βUnrestricted Subsidiary.β βSupported QFCβ has the meaning specified in Section 9.20. βTaxesβ means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. βTax Matters Agreementβ means the tax matters agreement, between Livent and FMC, as described in the Disclosure Documents, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time. 37 -
βTermination Dateβ means the earlier of (a) the Early Termination Date, (b) the date of termination in whole of the Commitments pursuant to the second sentence of Section 2.04(a), pursuant to Section 2.08(b) or pursuant to Section 7.01, or (c) the Final Maturity Date. βTotal Committed Increaseβ has the meaning specified in Section 2.04(b)(v). βTotal Committed Incremental Term Loanβ has the meaning specified in Section 2.04(c)(v). βTotal Commitmentsβ means $400 million, as such amount may be increased or reduced as provided in Section 2.04 or as otherwise expressly provided in this Agreement. βTotal Leverage Ratioβ means, with respect to Livent and its Restricted Subsidiaries on a Consolidated basis as of any date, the ratio of (a) Financial Covenant Debt as of such date, minus the amount of cash and Cash Equivalents that are or would be included on a balance sheet of Livent and its Subsidiaries as of such date to the extent such cash and Cash Equivalents is not or would not be listed as βrestrictedβ on such balance sheet in accordance with GAAP to (b) EBITDA for the last four Fiscal Quarters ending on or before such date. βTotal Outstandingsβ means, at any time, the sum of (a) the Revolving Loan Outstandings and (b) the Letter of Credit Obligations, at such time. βTrademark License Agreementβ shall mean the trademark license agreement between Livent and FMC, as described in the Disclosure Documents, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time. βTransactionsβ means (a) the Separation Transactions and (b) the execution, delivery and performance by the Borrowers of this Agreement, the borrowing of Loans and other credit extensions, the use of the proceeds thereof and the issuance of Letters of Credit hereunder, including, in the case of clauses (a) and (b), the payment of taxes, fees and expenses incurred in connection therewith and the other transactions contemplated by or related to the foregoing. βTransition Services Agreementβ shall mean the transitions services agreement between Livent and FMC, as described in the Disclosure Documents, as such agreement may be amended, restated, amended and restated or otherwise modified from time to time. βTreaty on European Unionβ means the Treaty of Rome of March 25, 1957, as amended by the Single Euxxxxxx Xxx 0000 xnd the Maastricht Treaty (which was signed at Maastricht on February 7, 1992, and came into force on November 1, 1993). βTypeβ means a Base Rate Loan or a Eurocurrency Rate Loan. βUCCβ has the meaning specified in Section 7.02(e)(ii). βUK Financial Institutionβ means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form 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 38 -
Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. βUK Resolution Authorityβ means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. βUnrestricted Subsidiaryβ means, (a) any Subsidiary of Livent designated by Livent as an Unrestricted Subsidiary after the Signing Date pursuant to Section 6.03(n), provided, that Livent shall only be permitted to so designate an Unrestricted Subsidiary so long as: (i) no Default or Event of Default has occurred and is continuing or would result therefrom; (ii) immediately after giving effect to such designation, Livent shall be in pro forma compliance with (A) theprior to the Covenant Conversion Date, the Total Leverage Ratio specified in Section 6.01(a) and, (B) on and following the Covenant Conversion Date, the First Lien Leverage Ratio specified in Section 6.01(b) and (C) the Interest Coverage Ratio specified in Section 6.01(bc), in each case, after giving effect to such designation; (iii) such Unrestricted Subsidiary shall be capitalized (to the extent capitalized by Livent or any Restricted Subsidiary) through Investments as permitted by, and in compliance with, Section 6.04(d) (valued at the fair market value of such Investments at the time of such designation); (iv) without duplication of preceding clause (iii), any assets owned by such Unrestricted Subsidiary at the time of the initial designation thereof shall be treated as Investments pursuant to Section 6.04(d) (valued at the fair market value of such Investments at the time of such designation); (v) Livent shall have delivered to the Administrative Agent a certificate executed by Livent, certifying compliance with the requirements of preceding clauses (i) through (iv), and containing the calculations required by the preceding clause (ii); (b) any Subsidiary of an Unrestricted Subsidiary. Additionally, Livent may designate any Unrestricted Subsidiary to be a Restricted Subsidiary for purposes of this Agreement by written notice to the Administrative Agent (each, a βSubsidiary Redesignationβ); provided, that (a) no Default or Event of Default has occurred and is continuing or would result therefrom; (b) Livent shall be in pro forma compliance with (A) theprior to the Covenant Conversion Date, the Total Leverage Ratio specified in Section 6.01(a) and, (B) on and after the Covenant Conversion Date, the First Lien Leverage Ratio specified in Section 6.01(b) 39 -
and (C) the Interest Coverage Ratio specified in Section 6.01(bc), in each case, after giving effect to such designation; (c) any Indebtedness of the applicable Subsidiary and any Liens encumbering its property existing as of the time of such Subsidiary Redesignation shall be deemed newly incurred or established, as applicable, at such time; (d) Livent shall have delivered to the Administrative Agent a certificate certifying compliance with the requirements of preceding clauses (a) and (b), and containing the calculations required by the preceding clause (b). In addition to the foregoing, on and after the Signing Date, (i) Livent may not designate any Mine Opco (or any direct or indirect parent or holding company thereof)OpCo Group Member to be an Unrestricted Subsidiary, (ii) Livent may not designate Lithium OpcoOpCo (or any direct or indirect parent or holding company thereof) to be an Unrestricted Subsidiary and (iii) no Restricted Subsidiary may be designed as an Unrestricted Subsidiary if it was previously designated an Unrestricted Subsidiary. βUnused Commitmentsβ means, at any time, the aggregate amount of the Commitments then unused and outstanding after deducting the Total Outstandings. βU.S. Special Resolution Regimesβ has the meaning specified in Section 9.20(a). βVoting Stockβ means capital stock issued by a corporation or equivalent interests in any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even though the right to so vote has been suspended by the happening of such contingency. βWholly-Owned Subsidiaryβ of any Person means any Subsidiary of such Person 100% of the Voting Stock of which (other than directorsβ qualifying shares or other shares held to satisfy legal or regulatory requirements) are directly or indirectly owned by such Person, or by one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person. βWithdrawal Liabilityβ means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. βWithholding Agentβ means any Loan Party, the Administrative Agent and any other withholding agent as applicable. βWrite-Down and Conversion Powersβ means, (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 40 -
(B) the representations and warranties contained in the Loan Documents shall be correct in all material respects (except any representations and warranties that are qualified by materiality, which shall be true and correct in all respects) both as of the date on which Livent shall notify the Administrative Agent of its request to increase the Total Commitments and as of the related Increase Date, as though made on and as of such date, other than any such representations or warranties that, by their terms, refer to a different date, which shall be true and correct as of such earlier date; and (C) after giving effect to such Proposed Aggregate Commitment Increase, the aggregate amount of all such Proposed Aggregate Commitment Increases and Incremental Term Loan Facilities entered into since the Effective Date shall not exceed $200 million. (ii) Livent may request an increase in the aggregate amount of the Commitments by delivering to the Administrative Agent a notice (an βIncrease Noticeβ, the date of delivery thereof to the Administrative Agent being the βIncrease Notice Dateβ) specifying (1) the Proposed Aggregate Commitment Increase, (2) the proposed date (the βIncrease Dateβ) on which the Commitments would be so increased (which Increase Date may not be fewer than thirty (30) nor more than sixty (60) days after the Increase Notice Date) and (3) the New Lenders, if any, to whom Livent desires to offer the opportunity to commit to all or a portion of the Proposed Aggregate Commitment Increase. The Administrative Agent shall in turn promptly notify each Lender of Liventβs request by sending each Lender a copy of such notice. (iii) Not later than the date that is five (5) days after the Increase Notice Date, the Administrative Agent shall notify each New Lender, if any, identified in the related Increase Notice of the opportunity to commit to all or any portion of the Proposed Aggregate Commitment Increase. Each such New Lender may irrevocably commit to all or a portion of the Proposed Aggregate Commitment Increase, representing Revolving Commitments and Incremental Term Loan Commitments, as applicable (such New Lenderβs βProposed New Commitmentβ) by notifying the Administrative Agent (which shall give prompt notice thereof to Livent) before 11:00 A.M. on the date that is ten (10) days after the Increase Notice Date; provided, that: (A) the Proposed New Commitment of each New Lender shall be in an aggregate amount not less than $10 million; and (B) each New Lender that submits a Proposed New Commitment shall execute and deliver to the Administrative Agent (for its acceptance and recording in the Register) a New Commitment Acceptance in accordance with the provisions of Section 9.07 hereof. (iv) If the aggregate Proposed New Commitments of all of the New Lenders shall be less than the Proposed Aggregate Commitment Increase, then (unless Livent otherwise requests) the Administrative Agent shall, on or prior to the date that is fifteen (15) days after the Increase Notice Date, notify each Lender of the opportunity to so commit to all or any portion of the Proposed Aggregate Commitment Increase not committed to by New Lenders pursuant to Section 2.04(b)(iii). Each Lender may, if, in its sole discretion, it elects to do so, irrevocably offer to commit to all or a portion of such 46 -
remainder, representing Revolving Commitments (such Lenderβs βProposed Increased Commitmentβ), by notifying the Administrative Agent (which shall give prompt notice thereof to Livent) no later than 11:00 A.M. on the date five (5) days before the Increase Date. In no event shall any Lender be obligated to increase its Commitments hereunder. (v) If the aggregate amount of Proposed New Commitments and Proposed Increased Commitments (such aggregate amount, the βTotal Committed Increaseβ) equals or exceeds $20 million, then, subject to the conditions set forth in Section 2.04(b)(i): (A) effective on and as of the Increase Date, the Total Commitments shall be increased by the Total Committed Increase (provided, that the aggregate amount of the Commitments shall in no event be increased pursuant to this Section 2.04(b) to more than $600 million, less the amount of any reductions of the Total Commitments under Section 2.04(a)) and shall be allocated among the New Lenders and the Lenders as provided in Section 2.04(b)(vi); and (B) on the Increase Date, if any Revolving Loans are then outstanding, the Borrowers shall borrow Revolving Loans from all or certain of the Lenders and/or (subject to compliance by the Borrowers with Section 9.04(c)) prepay Revolving Loans of all or certain of the Lenders (other than any Defaulting Lender) such that, after giving effect thereto, the Revolving Loans (including the Types, Currencies and Interest Periods thereof) shall be held by the Lenders (including for such purposes New Lenders) ratably in accordance with their respective Commitments. If the Total Committed Increase is less than $20 million, then the Total Commitments shall not be changed. (vi) The Total Committed Increase shall be allocated among New Lenders having Proposed New Commitments and Lenders having Proposed Increased Commitments as follows: (A) If the Total Committed Increase shall be at least $20 million and less than or equal to the Proposed Aggregate Commitment Increase, then (1) the initial Commitment of each New Lender shall be such New Lenderβs Proposed New Commitment and (2) the Commitment of each Lender shall be increased by such Lenderβs Proposed Increased Commitment. (B) If the Total Committed Increase shall be greater than the Proposed Aggregate Commitment Increase, then the Total Committed Increase shall be allocated: (1) first to New Lenders (to the extent of their respective Proposed New Commitments) in such a manner as Livent and the Administrative Agent shall agree; and (2) then to Lenders (to the extent of their respective Proposed Increased Commitments, if any) in such a manner as Livent 47 -
fewer than thirty (30) nor more than sixty (60) days after the Incremental Term Loan Facility Notice Date) and (3) the New Lenders, if any, to whom Livent desires to offer the opportunity to commit to all or a portion of the Incremental Term Loan Facility. The Administrative Agent shall in turn promptly notify each Lender of Liventβs request by sending each Lender a copy of such notice. (iii) Not later than the date that is five (5) days after the Incremental Term Loan Facility Notice Date, the Administrative Agent shall notify each New Lender, if any, identified in the related Incremental Term Loan Facility Notice of the opportunity to commit to all or any portion of the Incremental Term Loan Facility. Each such New Lender may irrevocably commit to all or a portion of the Incremental Term Loan Facility (such New Lenderβs βProposed New Lender Incremental Term Loan Commitmentβ) by notifying the Administrative Agent (which shall give prompt notice thereof to Livent) before 11:00 A.M. on the date that is ten (10) days after the Incremental Term Loan Facility Notice Date; provided, that: (A) the Proposed New Lender Incremental Term Loan Commitment of each New Lender shall be in an aggregate amount not less than $10 million; and (B) each New Lender that submits a Proposed New Lender Incremental Term Loan Commitment shall execute and deliver to the Administrative Agent (for its acceptance and recording in the Register) a New Commitment Acceptance in accordance with the provisions of Section 9.07 hereof. (iv) If the aggregate Proposed New Lender Incremental Term Loan Commitments of all of the New Lenders shall be less than the Incremental Term Loan Facility, then (unless Livent otherwise requests) the Administrative Agent shall, on or prior to the date that is fifteen (15) days after the Incremental Term Loan Notice Date, notify each Lender of the opportunity to so commit to all or any portion of the Incremental Term Loan Facility not committed to by New Lenders pursuant to Section 2.04(c)(iii). Each Lender may, if, in its sole discretion, it elects to do so, irrevocably offer to commit to all or a portion of such remainder (such Lenderβs βProposed Existing Lender Incremental Term Loan Commitmentβ), by notifying the Administrative Agent (which shall give prompt notice thereof to Livent) no later than 11:00 A.M. on the date five (5) days before the Incremental Term Loan Facility Notice Date. In no event shall any Lender be obligated to increase its Commitments hereunder. (v) If the aggregate amount of Proposed New Lender Incremental Term Loan Commitments and Proposed Existing Lender Incremental Term Loan Commitments (such aggregate amount, the βTotal Committed Incremental Term Loanβ) equals or exceeds $50 million, then, subject to the conditions set forth in Section 2.04(c)(i), effective on and as of the Incremental Term Loan Date, the Total Commitments shall be increased by the Total Committed Incremental Term Loan (provided, that the aggregate amount of the Commitments shall in no event be increased pursuant to this Section 2.04(c) to more than $600 million, less the amount of any reductions of the Total Commitments under Section 2.04(a)) and shall be allocated among the New Lenders and the Lenders as provided in Section 2.04(c)(vi). 49 -
If the Total Committed Incremental Term Loan is less than $50 million, then the Total Commitments shall not be changed. (vi) The Total Committed Incremental Term Loan shall be allocated among New Lenders having Proposed New Lender Incremental Term Loan Commitments and Lenders having Proposed Existing Incremental Term Loan Commitments as follows: (A) If the Total Committed Incremental Term Loan shall be at least $20 million and less than or equal to the Incremental Term Loan Facility, then (1) the initial Commitment of each New Lender shall be such New Lenderβs Proposed New Lender Incremental Term Loan Commitment and (2) the Commitment of each Lender shall be increased by such Lenderβs Proposed Existing Lender Incremental Term Loan Commitment. (B) If the Total Committed Incremental Term Loan shall be greater than the Incremental Term Loan Facility, then the Total Committed Incremental Term Loan shall be allocated as determined by Livent in consultation with the Administrative Agent. (vii) No increase in the Commitments contemplated hereby shall become effective until the Administrative Agent shall have received (A) an amendment (an βIncremental Term Loan Amendmentβ) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Incremental Term Loan Commitments, if any, each New Lender, if any, and the Administrative Agent pursuant to Section 9.07, provided, the Incremental Term Loan Amendment may, without need for the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Livent, to effect the provisions of this Section 2.04(c), (B) to the extent requested, term loan notes payable by each of the Borrowers to each Lender or each New Lender, as applicable, (C) evidence satisfactory to the Administrative Agent that such Incremental Term Loan Amendment has been duly authorized by each of the Loan Parties and (D) a favorable opinion of counsel to the Loan Parties, in form and substance reasonably acceptable to the Administrative Agent, Lender, if any, and New Lenders, if any, and covering such customary matters relating to the Incremental Term Loan Amendment as the Administrative Agent may request including as to continuing perfection. (viii) Any Incremental Term Loan Facility shall (A) be ratably secured with the Loans, (B) not mature earlier than the Final Maturity Date nor have amortization of greater than 1.00% or less of the original principal amount of such Incremental Term Loan Facility per year, (C) bear interest and other fees as agreed between Livent and the Lenders, if any, or New Lenders, if any, providing such Incremental Term Loan Facility and (D) otherwise be on terms and pursuant to documentation to be determined by Livent and the Persons willing to provide such Incremental Term Loan Facility; provided, that to the extent such terms and documentation are not consistent with the then existing Commitments or Incremental Term Loan Commitments (other than with respect to pricing, amortization and maturity) they shall be reasonably satisfactory to the Administrative Agent (it being agreed that Incremental Term Loan Facilities may contain customary mandatory prepayments, voting rights and prepayment premiums). 50 -
(b) If prior to 10:00 A.M. on any date on which an interest rate is to be determined pursuant to the definition of βEurocurrency Rateβ, (i) the Administrative Agent shall have determined (which determination shall be conclusive and binding on each Borrower) that adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, or (ii) the Administrative Agent shall have received notice from the Required Lenders in respect of the relevant facility that the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan for such Interest Period, then the Administrative Agent shall promptly notify Livent and each Lender of such circumstances, whereupon the right of Livent to select Eurocurrency Rate Loans for any requested Borrowing (or for the purposes of Section 2.12, any requested Conversion or Continuance) or any subsequent Borrowing (or for the purposes of Section 2.12, any subsequent Conversion or Continuance) shall be suspended until the first date on which the circumstances causing such suspension cease to exist. If Livent shall not, in turn, before 11:00 A.M. on such date notify the Administrative Agent that a Notice of Borrowing with respect to such Eurocurrency Rate shall be converted to a Notice of Borrowing for a Eurocurrency Rate Loan in a different Currency or a Base Rate Loan, such Notice of Borrowing shall be deemed to be canceled and of no force or effect, and no Borrower shall be liable to the Administrative Agent or any Lender with respect thereto except as set forth in Section 3.01(c). In the event of such a suspension, the Administrative Agent shall review the circumstances giving rise to such suspension at least weekly and shall notify Livent and the Lenders promptly of the end of such suspension, and thereafter Livent shall be entitled, on the terms and subject to the conditions set forth herein, to borrow Eurocurrency Rate Loans in such Currency. Notwithstanding anything to the contrary in this Agreement or any other Loan Documents, if the Administrative Agent determines (which determination shall be conclusive absent manifest error), or the Required Lenders notify the Administrative Agent (with a copy to Livent) that the Required Lenders have determined, that: (i) adequate and reasonable means do not exist for ascertaining the Screen Rate or Interpolated Rate for any requested Interest Period, including because the Eurocurrency Rate is not available or published on a current basis and such circumstances are unlikely to be temporary; or (ii) the supervisor for the administrator of the Eurocurrency Rate or a Governmental Authority having jurisdiction over the Administrative Agent has made a public statement identifying a specific date after which LIBOR or the Eurocurrency Rate shall no longer be made available, or used for determining the interest rate of loans (such specific date, the βScheduled Unavailability Dateβ), then, after such determination by the Administrative Agent or receipt by the Administrative Agent of such notice, as applicable, the Administrative Agent and Livent may amend this Agreement to replace the Eurocurrency Rate with an alternate benchmark rate (including any mathematical or other adjustments to the benchmark (if any) incorporated therein) that has been broadly accepted by the syndicated loan market in the United States in lieu of the then current Eurocurrency Rate (any such proposed rate, a βEurocurrency Successor Rateβ), together with any proposed Eurocurrency Successor Rate Conforming Changes and, notwithstanding anything to the contrary in Section 9.01, any such amendment shall become effective at 5:00 P.M. on the fifth 53 -
(b) (i) All payments of principal of and interest on the Loans and all other amounts whatsoever payable by a Borrower under this Agreement and the Notes shall be made in immediately available funds, without deduction, setoff or counterclaim, to the Administrative Agentβs Account for the relevant Currency, not later than 11:00 A.M. (in the case of amounts payable in Dollars) or 11:00 A.M. Local Time in the location of the Administrative Agentβs Account (in the case of amounts payable in an Alternate Currency), on the day when due. (ii) The Administrative Agent will promptly thereafter cause to be distributed like funds relating to the payment of principal or interest or fees ratably (other than amounts payable pursuant to Section 2.10 or 3.03 or as contemplated by Section 2.03(c) or 2.13) to the Lenders entitled thereto for the account of their respective Applicable Lending Offices, and like funds relating to the payment of any other amount payable to any Lender to such Lender for the account of its Applicable Lending Office, in each case to be applied in accordance with the terms of this Agreement. (iii) Upon its acceptance of an Acceptance and recording of the information contained therein in the Register pursuant to Section 9.07(d), from and after the effective date specified in such Acceptance the Administrative Agent shall make all payments hereunder and under the Notes in respect of the interest assigned or assumed thereby to the Lender assignee or New Lender thereunder (as the case may be). The parties to each Assignment and Acceptance shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves. (c) All computations of interest based on the Base Rate (other than if the Base Rate is computed on the basis of the Federal Funds Rate) and of commitment fees and letter of credit commission shall be made by the Administrative Agent on the basis of a year of 365 or 366 days, as the case may be, and all computations of interest based on the Eurocurrency Rate or the Base Rate based on the Federal Funds Rate shall be made by the Administrative Agent on the basis of a year of 360 days, in each case for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fees are payable. Each determination by the Administrative Agent of an interest rate hereunder shall be conclusive and binding for all purposes, absent manifest error. (d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of interest, commitment fees or, letter of credit commission, as the case may be; provided, however, if such extension would cause payment of interest on or principal of Eurocurrency Rate Loans to be made in the next following calendar month, such payment shall be made on the next preceding Business Day. (e) Unless the Administrative Agent shall have received notice from a Borrower prior to the date on which any payment is due to the Lenders hereunder that such Borrower will not make such payment in full, the Administrative Agent may assume that such Borrower has made such payment in full to the Administrative Agent on such date and the Administrative Agent may, in reliance upon such assumption, cause to be distributed to each relevant Lender on such due date an amount equal to the amount then due such Lender. If and to the extent that such Borrower shall not have so made such payment in full to the Administrative Agent, each such Lender shall repay to the Administrative Agent forthwith on demand such amount distributed to such Lender together with interest thereon, for each day from the date such amount is distributed 55 -
Lender under this Agreement (and from time to time thereafter upon the reasonable request of Livent or the Administrative Agent), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Livent and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Livent or the Administrative Agent), whichever of the following is applicable: (1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βinterestβ article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the βbusiness profitsβ or βother incomeβ article of such tax treaty; (2) executed copies of IRS Form W-8ECI; (3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit B-1 to the effect that such Foreign Lender is not a βbankβ within the meaning of Section 881(c)(3)(A) of the Code, a β10 percent shareholderβ of either Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a βcontrolled foreign corporationβ related to the Borrowers as described in Section 881(c)(3)(C) of the Code (a βU.S. Tax Compliance Certificateβ) and (y) executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E; or (4) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-2 or Exhibit B-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-4 on behalf of each such direct and indirect partner; (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Livent and the Administrative Agent (in such number of copies as 58 -
(i) any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuing Bank from Issuing such Letter of Credit or any Requirement of Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the Issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuing Bank is not otherwise compensated) not in effect on the date of this Agreement or that would result in any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuing Bank as of the date of this Agreement and that such Issuing Bank in good xxxxx xxxxx material to it; (ii) such Issuing Bank shall have received any written notice of the type described in clause (c) below; (iii) after giving effect to the Issuance of such Letter of Credit, (A) the aggregate Total Outstandings would exceed the aggregate of the Commitments in effect at such time, (B) the Letter of Credit Obligations at such time would exceed the Letter of Credit Sublimit or (C) the aggregate of all liabilities of the Borrowers to such Issuing Bank with respect to Letters of Credit would exceed the Letter of Credit Commitment of such Issuing Bank; (iv) any fees due in connection with any Issuance have not been paid; (v) such Letter of Credit is requested to be Issued in a form that is not acceptable to such Issuing Bank or such issuance would violate any policies of the Issuing Bank applicable to Letters of Credit, including, without limitation, any βknow your clientβ or similar requirements; (vi) such Letter of Credit is a Documentary Letter of Credit unless such Issuing Bank has agreed in its sole discretion to provide Documentary Letters of Credit; or (vii) such Letter of Credit is requested to be denominated in any currency other than Dollars or Euros. None of the Lenders (other than the Issuing Banks in their capacity as such) shall have any obligation to Issue any Letter of Credit. (b) In connection with the Issuance of each Letter of Credit, a Borrower shall give the relevant Issuing Bank and the Administrative Agent at least two (2) Business Daysβ prior written notice, in form and substance acceptable to the applicable Issuing Bank, of the requested Issuance of such Letter of Credit (a βLetter of Credit Requestβ). Such notice shall be irrevocable and shall specify the Issuing Bank of such Letter of Credit, the Currency of Issuance (Dollars or Euros) and face amount of the Letter of Credit requested, the date of Issuance of such requested Letter of Credit, the date on which such Letter of Credit is to expire (which date shall be a Business Day) and the Person for whose benefit the requested Letter of Credit is to be issued. Such notice, to be effective, must be received by the relevant Issuing Bank and the 67 -
Administrative Agent not later than 11:00 A.M. on the second Business Day prior to the date of the requested Issuance of such Letter of Credit. (c) Subject to the satisfaction of the conditions set forth in this Section 3.02 and in Section 2.02 (including, for certainty, the completion of any βknow your clientβ or similar requirements), the relevant Issuing Bank shall, on the requested date, Issue a Letter of Credit for the account of the applicable Borrower in accordance with such Issuing Bankβs usual and customary business practices. No Issuing Bank shall Issue any Letter of Credit in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the conditions precedent contained in Section 4.03 shall not on such date be satisfied or duly waived and ending when such conditions are satisfied or duly waived. The relevant Issuing Bank shall not otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 4.03 have been satisfied in connection with the Issuance of any Letter of Credit. (d) If requested by the relevant Issuing Bank, prior to the issuance of each Letter of Credit by such Issuing Bank, and as a condition of such Issuance and of the participation of each Lender in the Letter of Credit Obligations arising with respect thereto in accordance with clause (f) below, the applicable Borrower shall have delivered to such Issuing Bank a letter of credit reimbursement agreement, in such form as the Issuing Bank may employ in its ordinary course of business for its own account (a βLetter of Credit Reimbursement Agreementβ), signed by such Borrower, and such other documents or items as may be required pursuant to the terms thereof. In the event of any conflict between the terms of any Letter of Credit Reimbursement Agreement and this Agreement, the terms of this Agreement shall govern. (e) Each Issuing Bank shall: (i) give the Administrative Agent written notice (or telephonic notice confirmed promptly thereafter in writing, which writing may be a telecopy or electronic mail) of the Issuance of a Letter of Credit Issued by it, of all drawings under a Letter of Credit Issued by it and the payment (or the failure to pay when due) by the applicable Borrower of any Reimbursement Obligation when due; (ii) upon the request of any Lender, furnish to such Lender, copies of any Letter of Credit Reimbursement Agreement to which such Issuing Bank is a party and such other documentation as may reasonably be requested by such Lender; and (iii) no later than ten (10) Business Days following the last day of each calendar month, provide to the Administrative Agent (and the Administrative Agent shall provide a copy to each Lender requesting the same) and Livent separate schedules for Documentary Letters of Credit and Standby Letters of Credit issued by it under the Letter of Credit Sub-Facility, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the aggregate Letter of Credit Obligations outstanding at the end of each month and any information requested by any Borrower or the Administrative Agent relating thereto. (f) Immediately upon the issuance by an Issuing Bank of a Letter of Credit in accordance with the terms and conditions of this Agreement, such Issuing Bank shall be deemed to have sold and transferred to each Lender, and each Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or 68 -
warranty, an undivided interest and participation, to the extent of such Lenderβs pro rata share of the Commitments, in such Letter of Credit and the obligations of the applicable Borrower with respect thereto (including all Letter of Credit Obligations with respect thereto) and any security therefor and guaranty pertaining thereto. (g) Each Borrower agrees to pay to the Issuing Bank of any Letter of Credit the Dollar Equivalent of the amount of all Reimbursement Obligations owing to such Issuing Bank under any Letter of Credit issued for its account no later than the date that is the next succeeding Business Day after such Borrower receives written notice from such Issuing Bank that payment has been made under such Letter of Credit (the βReimbursement Dateβ), irrespective of any claim, set-off, defense or other right that such Borrower may have at any time against such Issuing Bank or any other Person. In the event that the Commitments of each Lender terminate under this Agreement on the Early Termination Date, each of the Borrowers agrees to cash collateralized or cover by standby letter(s) all Letters of Credit that are outstanding on the Early Termination Date. (h) In the event that any Issuing Bank makes any payment under any Letter of Credit and the applicable Borrower shall not have repaid the Dollar Equivalent of such amount to such Issuing Bank pursuant to clause (g) or any such payment by such Borrower is rescinded or set aside for any reason, such Reimbursement Obligation shall be payable on demand with interest thereon computed (i) from the date on which such Reimbursement Obligation arose to the Reimbursement Date, at the rate of interest applicable during such period to Revolving Loans that are Base Rate Loans and (ii) from the Reimbursement Date until the date of repayment in full, at the rate of interest applicable during such period to past due Revolving Loans that are Base Rate Loans, and such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Lender of such failure, and each Lender shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of such Lenderβs pro rata share of such payment in Dollars (based upon the Dollar Equivalent of such amount on the date of such payment) and in immediately available funds. If the Administrative Agent so notifies such Lender prior to 11:00 A.M. on any Business Day, such Lender shall make available to the Administrative Agent for the account of such Issuing Bank its pro rata share of the amount of such payment on such Business Day in immediately available funds. Upon such payment by a Lender, such Lender shall, except during the continuance of a Default or Event of Default under Section 7.01(e) and notwithstanding whether or not the conditions precedent set forth in Section 4.03 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), be deemed to have made a Revolving Loan to applicable Borrower in the principal amount of such payment. Whenever any Issuing Bank receives from any Borrower a payment of a Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payment from a Lender pursuant to this clause (h), such Issuing Bank shall pay to the Administrative Agent and the Administrative Agent shall promptly pay to each Lender, in immediately available funds, an amount equal to such Lenderβs pro rata share of the amount of such payment adjusted, if necessary, to reflect the respective amounts the Lenders have paid in respect of such Reimbursement Obligation. (i) If and to the extent such Lender shall not have so made its pro rata share of the amount of the payment required by clause (h) above, as applicable, available to the Administrative Agent for the account of such Issuing Bank, such Lender agrees to pay to the Administrative Agent for the account of such Issuing Bank forthwith on demand any such unpaid amount together with interest thereon, for the first Business Day after payment was first due at 69 -
the Federal Funds Rate and, thereafter until such amount is repaid to the Administrative Agent for the account of such Issuing Bank, at the rate per annum applicable to Base Rate Loans under the Facility. (j) Each Borrowerβs obligation to pay each Reimbursement Obligation and the obligations of the Lenders to make payments to the Administrative Agent for the account of the Issuing Banks with respect to Letters of Credit shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, including the occurrence of any Default or Event of Default, and irrespective of any of the following: (i) any lack of validity or enforceability of any Letter of Credit or any Loan Document, or any term or provision therein; (ii) any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or any Loan Document; (iii) the existence of any claim, set off, defense or other right that such Borrower, any other party guaranteeing, or otherwise obligated with, such Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time have against the beneficiary under any Letter of Credit, any Issuing Bank, the Administrative Agent or any other Lender or any other Person, whether in connection with this Agreement, any other Loan Document or any other related or unrelated agreement or transaction; (iv) any drawing or document presented under a Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (v) payment by the Issuing Bank under a Letter of Credit against presentation of a drawing or document that does not comply with the terms of such Letter of Credit; and (vi) any other act or omission to act or delay of any kind of the Issuing Bank, the other Lenders, the Administrative Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 3.02 or Section 2.02, constitute a legal or equitable discharge of such Borrowerβs obligations hereunder. Any action taken or omitted to be taken by the relevant Issuing Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment, shall not put such Issuing Bank under any resulting liability to the applicable Borrower or any Lender. In determining whether drawings and documents presented under a Letter of Credit comply with the terms thereof, the Issuing Bank may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary and, in making any payment under any Letter of Credit, the Issuing Bank may rely exclusively on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any drawing presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such drawing and whether or not any document presented pursuant to such Letter of Credit proves to 70 -
(v) A favorable opinion of (A) Xxxxxx, Xxxxx & Bockius LLP, counsel to the Loan Parties, and (B) McGuireWoods LLP, local counsel to the Loan Parties, in each case, in form and substance reasonably accepted to the Administrative Agent and Lenders and covering such customary matters relating hereto as any Lender, through the Administrative Agent, may reasonably request; (vi) A certificate of an officer or any authorized person of Livent to the effect that (A) the representations and warranties contained in the Loan Documents are correct (other than any such representations or warranties which, by their terms, refer to a prior date) and (B) no event has occurred and is continuing which constitutes a Default; and (vii) A completed Perfection Certificate duly executed and delivered by each Loan Party, together with all attachments contemplated thereby; (b) The results of recent customary lien searches, which shall reveal no Liens on any of the assets of any Loan Party except for Liens permitted by Section 6.04(b) or discharged on or prior to the Effective Date pursuant to a pay-off letter or other documentation reasonably satisfactory to the Administrative Agent; (c) The Administrative Agent shall have received (i) the certificates representing the shares of Stock pledged pursuant to the Security Agreement, together with an undated stock power for each such certificate executed in blank by a duly authorized officer of the pledgor thereof and (ii) to the extent required to be delivered pursuant to the Security Agreement, each promissory note (if any) pledged to the Administrative Agent pursuant to the Security Agreement endorsed (without recourse) in blank (or accompanied by an executed transfer form in blank) by the pledgor thereof; (d) Each document (including any UCC financing statement) required by the Collateral Documents or under law or reasonably requested by the Administrative Agent to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Lenders, a perfected Lien on the Collateral described therein (but only to the extent required therein), prior and superior in right to any other Person (other than with respect to Liens expressly permitted by Section 6.04(b), shall be in proper form for filing, registration or recordation; (e) Evidence of insurance coverage in form, scope, and substance reasonably satisfactory to the Administrative Agent and otherwise in compliance with the terms of Section 6.03(e) of this Agreement and Section 4.10 of the Security Agreement; (f) Confirmation that the Borrowers have paid all fees (including amounts then payable under the Fee Letter) required to be paid on or before the Effective Date and all expenses of the Administrative Agent and the Lenders (including the fees and expenses of counsel to the Administrative Agent) for which invoices have been presented at least one (1) Business Day prior to the Effective Date; (g) The representations and warranties contained in the Loan Documents (except any representations and warranties relating to the Lithium IPO) are correct in all material respects (except any representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Effective Date; 76 -
respective Restricted Subsidiaries that is a Loan Party of Indebtedness of any Restricted Subsidiary that is not a Loan Party shall be subject to Section 6.04(d) and (C) Guarantees permitted under this clause (iv) shall be subordinated to the Obligations on the same terms as the Indebtedness so Guaranteed is subordinated to the Obligations; (v) Indebtedness of any Borrower or any of its respective Restricted Subsidiaries incurred to finance the acquisition, construction or improvement of any fixed or capital assets (including equipment and whether or not constituting purchase money Indebtedness), including Capital Lease Obligations and any Indebtedness assumed in connection with the acquisition (including by way of any Permitted Acquisition) of any such assets or secured by a Lien on any such assets prior to the acquisition thereof, and extensions, renewals and replacements of any such Indebtedness in accordance with clause (vi) hereof; provided, that, (A) such Indebtedness is incurred prior to or within ninety (90) days after such acquisition or the completion of such construction or improvement and (B) after giving effect to Indebtedness permitted by this clause (v) (including any refinancing thereof permitted by clause (vi)), Livent shall be in pro forma compliance with (i) prior to the Covenant Conversion Date, Section 6.01;(a) and (ii) on and following the Covenant Conversion Date, Section 6.01(b). (vi) Indebtedness which represents an extension, refinancing, or renewal of any of the Indebtedness described in clauses (ii) and (v) hereof; provided, that, (A) the aggregate principal amount of such Indebtedness does not exceed the principal amount of such Indebtedness being refinanced plus the amount of any interest, premiums or penalties required to be paid, plus fees and expenses associated therewith, (B) any Liens securing such Indebtedness are not extended to any additional property of any Loan Party, (C) no Loan Party that is not originally obligated (or required to become obligated) with respect to repayment of such Indebtedness is required to become obligated with respect thereto, (D) such extension, refinancing or renewal does not result in a shortening of the average weighted maturity of the Indebtedness so extended, refinanced or renewed, (E) the terms of any such extension, refinancing, or renewal are not materially less favorable to the obligor thereunder than the original terms of such Indebtedness, taken as a whole, and (F) if the Indebtedness that is refinanced, renewed, or extended was subordinated in right of payment to the Secured Obligations, then the terms and conditions of the refinancing, renewal, or extension Indebtedness must include subordination terms and conditions that are at least as favorable to the Administrative Agent and the Lenders as those that were applicable to the refinanced, renewed, or extended Indebtedness; (vii) Indebtedness owed to any Person providing workersβ compensation, health, disability or other employee benefits or property, casualty or liability insurance, pursuant to reimbursement or indemnification obligations to such person, in each case incurred in the ordinary course of business; (viii) Indebtedness of any Borrower or any of its respective Restricted Subsidiaries in respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar obligations, in each case provided in the ordinary course of business; 93 -
(ix) Indebtedness or Guarantees of any Borrower or any of its respective Restricted Subsidiaries in connection with any Hedging Contract, in each case entered into in the ordinary course of business; (x) Indebtedness arising from customary agreements providing for indemnification, adjustment of purchase price, earnout, deferred purchase price or similar obligations in connection with acquisitions or dispositions of any business or assets by or of any Borrower or any of its respective Restricted Subsidiaries permitted hereunder; (xi) Judgments entered against any Borrower or any of its respective Restricted Subsidiaries to the extent not constituting an Event of Default; (xii) Indebtedness or Guarantees incurred in the ordinary course of business in connection with cash pooling, netting and cash management arrangements consisting of overdrafts or similar arrangements; (xiii) Indebtedness of a Person or Indebtedness attaching to assets of a Person that, in either case, becomes a Restricted Subsidiary (other than any Mine OpCo Group Member) or Indebtedness attaching to assets that are acquired by any Borrower or any of its respective Restricted Subsidiaries, (other than any Mine OpCo Group Member), in each case as the result of a Permitted Acquisition; provided, that (A) such Indebtedness existed at the time such Person became a Restricted Subsidiary or at the time such assets were acquired and, in each case, was not created in anticipation thereof and (B) immediately after giving effect thereto, Livent shall be in pro forma compliance with the Leverage Ratio no greater than the Leverage Ratio as of the Effective Date(a) prior to the Covenant Conversion Date, Section 6.01(a) and (b) on and following the Covenant Conversion Date, Section 6.01(b); (xiv) Indebtedness of any Borrower or any of its respective Restricted Subsidiaries in connection with a Permitted Factoring or Receivables Transaction; (xv) Indebtedness incurred under any credit card facility in an aggregate amount not exceeding $5 million at any time outstanding plus any accrued and unpaid interest thereon; (xvi) Indebtedness of Restricted Subsidiaries (other than any Mine OpCo Group Member) that are not Domestic Subsidiaries provided that the aggregate principal amount of such Indebtedness shall not exceed $25 million outstanding at any time; (xvii) Indebtedness of any Borrower or any of its respective Restricted Subsidiaries incurred in the ordinary course of business under guarantees of Indebtedness of suppliers, licensees, franchisees or customers provided that the aggregate principal amount of such Indebtedness shall not exceed $10 million outstanding at any time; and (xviii) other Indebtedness in an aggregate principal amount not exceeding $50 million at any time outstanding. (xviii) other Indebtedness of Restricted Subsidiaries (other than any Mine OpCo Group Member) in an aggregate principal amount (i) not to exceed $25 million at any 94 -
(v) Permitted Acquisitions; (vi) loans and advances to directors, officers and employees of any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses and analogous ordinary business purposes and to finance the purchase of Stock of Livent) in an aggregate amount for any Borrower and any Restricted Subsidiaries not to exceed $10 million at any time outstanding; (vii) investments received in connection with the bankruptcy or reorganization of any Person or in settlement of obligations of, or disputes with, any Person arising in the ordinary course of business; (viii) Hedging Contracts permitted by Section 6.04(k); (ix) (A) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business or (B) Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss; (x) to the extent constituting Investments, performance guarantees of obligations of any Borrower or any of its respective Restricted Subsidiaries in the ordinary course of business; (xi) Investments made in respect of joint ventures or other similar agreements or partnership not to exceed $50 million in any fiscal year; (xii) any Investment so long as, after giving effect thereto on a pro forma basis, (A) no Event of Default shall have occurred and be continuing or would result therefrom and (B) the First Lien Leverage Ratio, as of the last day of the most recently ended Fiscal Quarter, does not exceed 2.50:1.00; (xiii) Investments made by any Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed the portion, if any, of the Available Amount Basket on such date that such Borrower or such Restricted Subsidiary elects to apply to this clause (xiii), provided, that no Event of Default shall have occurred and be continuing or would result therefrom; (xiv) Investments made in Restricted Subsidiaries which are not also Loan Parties in an aggregate amount (valued at cost) not to exceed $100200 million (net of any return or repayment) during the term of this Agreement; (xv) in addition to Investments otherwise expressly permitted by this Section 6.04(d), Investments by any Borrower or any of its respective Restricted Subsidiaries in an aggregate amount (valued at cost) not to exceed $50 million (net of any return or repayment) during the term of this Agreement; 98 -
will not exist under this clause (d) so long as such Borrower or such Restricted Subsidiary, as the case may be, fully performs its obligations in a timely manner under such Guarantee upon demand therefor by the beneficiary thereof; or (e) Any Borrower or any of its respective Restricted Subsidiaries shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Borrower or any of its respective Restricted Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of sixty (60) days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or any Borrower or any of its respective Restricted Subsidiaries shall take any corporate action to authorize any of the actions set forth above in this subsection (e); or (f) One or more judgments or orders for the payment of money in excess of $50 million in the aggregate and not covered by insurance shall be rendered against any Borrower or any of its respective Restricted Subsidiaries and either (i) enforcement proceedings shall have been commenced by any creditor upon such judgment or order or (ii) there shall be any period of thirty (30) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect; or (g) Any ERISA Event with respect to any Borrower shall have occurred and the amount of all liabilities and deficiencies resulting therefrom, whether or not assessed, could reasonably be expected to exceed $50 million in the aggregate; (h) Any Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan which would reasonably be expected to have a Material Adverse Effect; (i) Any Borrower or any ERISA Affiliate shall have been notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is insolvent or in endangered or critical status or is being terminated, within the meaning of Title IV of ERISA, and such reorganization or termination would reasonably be expected to have a Material Adverse Effect; (j) The Loan Guaranty set forth in Article X hereof shall cease to be valid and binding on, or enforceable against, any Loan Party or any Loan Party shall so state in writing; (k) there shall occur any Change of Control; provided, however, that no Event of Default shall occur from consummation of any of the Separation Transactions; (l) (i) any Collateral Document shall for any reason fail to create a valid and perfected first priority security interest in any Collateral purported to be covered thereby, except (A) as permitted by the terms of any Collateral Document or other Loan Document or (B) as a result of the Administrative Agentβs failure to (1) maintain possession of any stock certificates, 105 -
(b) The Borrowers hereby authorize the Administrative Agent to open at any time upon the occurrence and during the continuance of an Event of Default a non-interest bearing account with the Administrative Agent at its address designated in Section 9.02 in the name of the any Borrower but in connection with which the Administrative Agent shall be the sole entitlement holder or customer (the βL/C Cash Collateral Accountβ), and hereby pledges and assigns and grants to the Administrative Agent on behalf of the Lenders a security interest in the following collateral (the βL/C Cash Collateral Account Collateralβ): (i) the L/C Cash Collateral Account, all funds held therein and all certificates and instruments, if any, from time to time representing or evidencing the investment of funds held therein, (ii) all L/C Cash Collateral Account Investments from time to time, and all certificates and instruments, if any, from time to time representing or evidencing the L/C Cash Collateral Account Investments, (iii) all notes, certificates of deposit, deposit accounts, checks and other instruments from time to time delivered to or otherwise possessed by the Administrative Agent for or on behalf of any Borrower in substitution for or in addition to any or all of the then existing L/C Cash Collateral Account Collateral, (iv) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing L/C Cash Collateral Account Collateral, and (v) all proceeds of any and all of the foregoing L/C Cash Collateral Account Collateral. (c) If requested by any Borrower, the Administrative Agent will, subject to the provisions of clause (e) below, from time to time (i) invest amounts on deposit in the L/C Cash Collateral Account in such notes, certificates of deposit and other debt instruments as such Borrower may select and the Administrative Agent may approve and (ii) invest interest paid on the notes, certificates of deposit and other instruments referred to in clause (i) above, and reinvest other proceeds of any such notes, certificates of deposit and other instruments which may mature or be sold, in each case in such notes, certificates of deposit and other debt instruments any Borrower may select and the Administrative Agent may approve (the notes, certificates of deposit and other instruments referred to in clauses (i) and (ii) above being collectively βL/C Cash Collateral Account Investmentsβ). Interest and proceeds that are not invested or reinvested in L/C Cash Collateral Account Investments as provided above shall be deposited and held in the L/C Cash Collateral Account. (d) Upon such time as (i) the aggregate Available LC Amount of all Letters of Credit is reduced to zero and such Letters of Credit are expired with no pending drawings or terminated by their terms and all amounts payable in respect thereof, including but not limited to principal, interest, commissions, fees and expenses, have been paid in full in cash, and (ii) no Event of Default has occurred and is continuing under this Agreement, the Administrative Agent will pay and release to the applicable Borrower or at its order (A) accrued interest due and payable on the L/C Cash Collateral Account Investments and in the L/C Cash Collateral Account, and (B) the balance remaining in the L/C Cash Collateral Account after the application, if any, by the 107 -
Administrative Agent of funds in the L/C Cash Collateral Account to the payment of amounts described in clause (i) of this subsection (d). (e) (i) The Administrative Agent may, without notice to any Borrower or any other Person except as required by law and at any time or from time to time, charge, set-off and otherwise apply all or any part of the L/C Cash Collateral Account against the obligations of the Borrowers in respect of Letters of Credit (collectively, the βL/C Cash Collateral Account Obligationsβ) or any part thereof. The Administrative Agent agrees to notify Livent promptly after any such set-off and application, provided, that the failure of the Administrative Agent to give such notice shall not affect the validity of such set-off and application. (ii) The Administrative Agent may also exercise in respect of the L/C Cash Collateral Account Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code in effect in the State of New York at that time (the βUCCβ) (whether or not the UCC applies to the affected L/C Cash Collateral Account Collateral), and may also, without notice except as specified below, sell the L/C Cash Collateral Account Collateral or any part thereof in one or more parcels at public or private sale, at any of the Administrative Agentβs offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may deem commercially reasonable. Each Borrower agrees that, to the extent notice of sale shall be required by law, at least ten (10) daysβ notice to Livent of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of L/C Cash Collateral Account Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. (iii) Any cash held by the Administrative Agent as L/C Cash Collateral Account Collateral and all cash proceeds received by the Administrative Agent in respect of any sale of, collection from, or other realization upon all or any part of the L/C Cash Collateral Account Collateral may, in the discretion of the Administrative Agent, be held by the Administrative Agent as collateral for, and/or then or at any time thereafter be applied in whole or in part by the Administrative Agent against, all or any part of the L/C Cash Collateral Account Obligations in such order as the Administrative Agent shall elect. Any surplus of such cash or cash proceeds held by the Administrative Agent and remaining after payment in full of all the L/C Cash Collateral Account Obligations shall be paid over to the applicable Borrower or to whomsoever may be lawfully entitled to receive such surplus. (f) Upon the permanent reduction from time to time of the aggregate Available LC Amount of all Letters of Credit in accordance with the terms thereof, the Administrative Agent shall release to the applicable Borrower amounts from the L/C Cash Collateral Account in an amount equal to each such permanent reduction; provided, that the Administrative Agent shall not be obligated to reduce the funds or other L/C Cash Collateral Account Collateral then held in the L/C Cash Collateral Account below that level that the Administrative Agent reasonably determines is required to be maintained after taking into consideration any rights or claims of any Persons other than the Administrative Agent and the Lenders. 108 -
(c) postpone any date fixed for any payment of any interest, fees, principal amount or other amounts payable hereunder; (d) change the percentage of the Commitments or of the aggregate unpaid principal amount of the Loans, or the number of Lenders, which shall be required for the Lenders or any of them to take any action hereunder; (e) release the Loan Guaranty set forth in Article X (Loan Guaranty); (f) amend this Section 9.01 or any other Section of this Agreement or any other Loan Document, the effect of which amendment is to alter the pro rata sharing of payments or pro rata funding required thereby; or (g) except as provided for in this Agreement or in any other Loan Document, release all or substantially all of the Collateral; provided, further, that (i) no amendment, waiver or consent shall affect the rights or duties of the Administrative Agent, and any Issuing Bank, under this Agreement or any Note, unless such amendment, waiver or consent is in writing and signed by the Administrative Agent or such Issuing Bank, as applicable, in addition to the Lenders required above to take such action; (ii) subject to the provisions of Section 2.04, no amendment, waiver or consent shall reduce the principal of, or interest on, the Revolving Loans or Notes or postpone any date fixed for any payment of principal of, or interest on, the Revolving Loans or Notes, unless in each case signed by all of the Lenders; (iii) no amendment, waiver or consent shall reduce the principal of, or interest on, the Letter of Credit Loans or postpone any date fixed for any payment of principal of, or interest on, the Letter of Credit Loans, unless in each case signed by each affected Lender; (iv) subject to the provisions of Section 2.04, no amendment, waiver or consent shall extend the Termination Date of the Commitment or increase the Commitment of any Lender or subject any Lender to any additional obligations, unless signed by such Lender; and (v) no amendment, waiver or consent shall be made to Section 2.02, unless signed by each Lender affected by such amendment, waiver or consent; provided, however, that, notwithstanding anything herein to the contrary, in connection with any Incremental Term Loan Amendment, the Administrative Agent, the Loan Parties and the other parties thereto may (A) introduce the concept of class voting with respect to matters that only apply to the relevant Incremental Term Loan Facility and (B) amend the definition of βRequired Lendersβ hereunder to incorporate the commitments and term loans held by the relevant Lenders under the Incremental Term Loan Amendment. Anything herein to the contrary notwithstanding, during such period as a Lender is a Defaulting Lender, to the fullest extent permitted by applicable law, such Defaulting Lender 113 -
E-Mail Address: xxxxxxxxxxxxxxx@xxxx.xxx (for materials required to be delivered pursuant to Section 6.02(a)) with a copy to: 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxx Xxxxx Telephone: (000) 000-0000 Email: xxxxx.xxxxx@xxxx.xxx with a copy to: Weil, Gotshal & Xxxxxx LLP 000 Xxxxx Xxxxxx Xxx Xxxx, XX 00000 Attention: Xxxxx Xxxxxxx, Esq. Facsimile: (000) 000-0000 Email: Xxxxx.Xxxxxxx@xxxx.xxx (iii) if to a Lender, to it at its address (or email or telecopy number) set forth in the applicable administrative questionnaire or in the applicable Acceptance. Any party may subsequently change its notice address by a written notice to the other parties as herein provided. All such notices and communications shall, (A) when mailed, be effective three (3) Business Days after the same is deposited in the mails, (B) when mailed for next day delivery by a reputable freight company or reputable overnight courier service, be effective one (1) Business Day thereafter, and (C) when sent by telegraph, telecopy, telex or cable, be effective when the same is telegraphed, telecopied and receipt thereof is confirmed by telephone or return telecopy, confirmed by telex answerback or delivered to the cable company, respectively, except that notices and communications to the Administrative Agent pursuant to Article II (Amounts and Terms of Loans), III (Making the Loans and Issuing the Letters of Credit) or VIII (The Administrative Agent) shall not be effective until received by the Administrative Agent. (b) Electronic Communications. (i) Delivery of Communications by the Borrowers. Each Borrower agrees that, unless otherwise requested by the Administrative Agent, it will provide to the Administrative Agent all information, documents and other materials that it is obligated to furnish to the Administrative Agent pursuant to this Agreement and the other Loan Documents, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (A) relates to a request for a new, or a Conversion of an existing, Borrowing (including any election of an interest rate or Interest Period relating thereto), (B) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (C) provides notice of any Default or Event of Default under this Agreement, (D) is required to be delivered to satisfy any condition precedent in Article IV (Conditions of Lending) relating to the effectiveness of this Agreement and/or any Borrowing or (E) initiates or responds to legal process (all such 115 -
Borrower, its shareholders or creditors or an Indemnified Party or any other person or an Indemnified Party is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated, except to the extent such claim, damage, loss, liability or expense is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from (i) the gross negligence or willful misconduct, as determined by a court of competent jurisdiction in a final non-appealable judgment, of such Indemnified Party or any of its Related Parties, (ii) a material breach of such Indemnified Partyβs or any of its Related Partiesβ obligations hereunder or under any other Loan Document or (iii) any dispute solely among Indemnified Parties that does not involve any act or omission by any Loan Party or any of their respective Subsidiaries; provided, that, with respect to clause (iii), each of the Administrative Agent and the Issuing Banks shall remain indemnified in their capacities as such. Each Borrower also agrees not to assert any claim against the Administrative Agent, any Lender, any of their Affiliates, or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for consequential, indirect, special or punitive damages arising out of or otherwise relating to any of the Loan Documents or any of the transactions contemplated hereby or thereby or the actual or proposed use of the proceeds of the Loans; provided, that such waiver of consequential, indirect, special or punitive damages shall not limit the indemnification obligations of the Borrowers under this Section 9.04(b). Each of the Lenders and the Administrative Agent agrees not to assert any claim against any Borrower, their Affiliates or any of their respective directors, officers, employees, attorneys and agents, on any theory of liability, for consequential, indirect, special or punitive damages arising out of or otherwise relating to any of the Loan Documents or any of the transactions contemplated hereby or thereby or the actual or proposed use of the proceeds of the Loans or the Letters of Credit. For purposes of this Section 9.04(b), a βRelated Partyβ of an Indemnified Party means (A) any controlling Person, controlled Affiliate or Subsidiary of such Indemnified Party and (B) the respective directors, officers or employees of such Indemnified Party or any of its Subsidiaries, controlled Affiliates or controlling Persons; provided, that each reference to a controlling Person, controlled Affiliate, director, officer or employee in this sentence pertains to a controlling Person, controlled Affiliate, director, officer or employee involved in the preparation of the Loan Documents or the other transactions contemplated thereby. (c) If (i) any payment of principal of any Eurocurrency Rate Loan is made other than on the last day of the Interest Period for such Loan, as a result of a payment pursuant to Section 3.03 or acceleration of the maturity of the Loans pursuant to Section 7.01 or for any other reason, (ii) any Borrower gives notice of a Loan conversion pursuant to Section 2.07(b), or (iii) a Eurocurrency Rate Loan is assigned other than on the last day of the Interest Period for such Loan as a result of a request of Livent pursuant to Section 3.06, then the Borrowers shall, upon demand by any Lender (with a copy of such demand to the Administrative Agent), pay to the Administrative Agent for the account of such Lender any amounts required to compensate such Lender for any additional losses, costs or expenses which it may reasonably incur as a result of such payment, including any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by any Lender to fund or maintain such Loan. (d) Without prejudice to the survival of any other agreement of any Borrowers or the Lenders hereunder, the agreements and obligations of any Borrower contained in Sections 2.10, 3.03 and 9.04, and the agreements and obligations of each Lender under Section 9.11, shall 118 -
(ii) the amount of the Commitments and/or Loans of the assigning Lender being assigned pursuant to each such assignment other than an assignment to another Lender (determined as of the date of the Assignment and Acceptance with respect to such assignment) shall in no event be less than $5 million and shall be an integral multiple of $1 million in excess thereof, unless, in each case, each Borrower and the Administrative Agent otherwise consent, (iii) each such assignment shall be to an Eligible Assignee, and Livent, the Administrative Agent (in each case, unless such assignment shall be to a Lender, an Affiliate of such Lender, a Subsidiary of the assigning Lender, to the bank holding company or a Subsidiary of the bank holding company of which the assigning Lender is a Subsidiary or an Approved Fund) and the Issuing Banks (solely to the extent such assignment relates to Revolving Loans or Letter of Credit Loans) shall have consented to such assignment (which consents shall not be unreasonably withheld or delayed); provided, that no consent of Livent shall be required if any Event of Default has occurred and is continuing; provided, further, that Livent shall be deemed to have consented to such assignment unless Livent objects thereto by written notice to the Administrative Agent within ten (10) Business Days after receiving notice thereof, and (iv) the parties to each such assignment shall execute and deliver to the Administrative Agent, for its acceptance and recording in the Register, an Assignment and Acceptance, together with any Note or Notes subject to such assignment and a processing and recordation fee of $3,500 paid by either the assigning Lender or the assignee; provided, that the Administrative Agent may, in its sole discretion, elect to waive such recordation fee in the case of any such assignment. Upon such execution, delivery, acceptance and recording, from and after the effective date specified in each Assignment and Acceptance, (A) the assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (B) the Lender assignor thereunder shall relinquish its rights and be released from its obligations under this Agreement, to the extent that rights and obligations hereunder have been assigned by it pursuant to such Assignment and Acceptance. Notwithstanding anything to the contrary contained herein except for the conditions set for in clause (iv) of this Section 9.07(a), any Lender (a βGranting Lenderβ) may grant to a special purpose funding vehicle (a βSPCβ), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and Livent, the option to provide to either Borrower all or any part of a Loan that such Granting Lender would otherwise be obligated to make to such Borrower pursuant to this Agreement; provided, that (1) nothing herein shall constitute a commitment by any SPC to make any Loan, (2) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender). In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one (1) year and one (1) day after the payment in full of all outstanding commercial 120 -
paper or other senior indebtedness of any SPC, it will not institute against, or join any other person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the laws of the United States or any State thereof. In addition, notwithstanding anything to the contrary contained in this Section 9.07 except for the conditions set forth in clause (iii) of this Section 9.07(a), any SPC may (i) with notice to, but without the prior written consent of, Livent and the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loans to the Granting Lender or to any Eligible Assignee (consented to by each Borrower and the Administrative Agent) providing liquidity and/or credit support to or for the account of such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such SPC. This paragraph may not be amended without the written consent of the SPC. (b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder and the assignee thereunder confirm to and agree with each other and the other parties hereto as follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto; (ii) such assigning Lender makes no representation or warranty and assumes no responsibility with respect to the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.03, the most recent financial statements delivered pursuant to Section 6.02(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon anythe Administrative Agent, such assigning Lender or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vii) such assignee agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (c) Each New Lender shall submit a New Commitment Acceptance in accordance with the provisions of Sections 2.04(b) or 2.04(c), as applicable. Upon the execution, delivery, acceptance and recording of a New Commitment Acceptance, from and after the Increase Date or Incremental Term Loan Facility Date, as applicable, related thereto such New Lender shall be a party hereto and have the rights and obligations of a Lender hereunder having the Commitment specified therein (or such lesser Commitment as shall be allocated to such New Lender in accordance with Section 2.04(b)(vi) or Section 2.04(c)(vi)). By executing and delivering a New Commitment Acceptance, the New Lender thereunder confirms to and agrees with the other parties hereto as follows: (i) such New Lender hereby agrees that no Lender has made any representation or warranty, or assumes any responsibility with respect to, (A) any statements, 121 -
warranties or representations made in or in connection with this Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement or any other instrument or document furnished pursuant hereto or (B) the financial condition of any Borrower or the performance or observance by any Borrower of any of its obligations under this Agreement or any other instrument or document furnished pursuant hereto; (ii) such New Lender confirms that it has received a copy of this Agreement, together with copies of the financial statements referred to in Section 5.03, the most recent financial statements delivered pursuant to Section 6.02(a) and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such New Commitment Acceptance; (iii) such New Lender will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (iv) such New Lender confirms that it is an Eligible Assignee; (v) such New Lender appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent by the terms hereof, together with such powers as are reasonably incidental thereto; and (vi) such New Lender agrees that it will perform in accordance with their terms all of the obligations which by the terms of this Agreement are required to be performed by it as a Lender. (d) The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrowers, shall maintain a copy of each Assignment and Acceptance and each New Commitment Acceptance delivered to and accepted by it and a register for the recordation of the names and addresses of the Lenders and the Commitments of, and principal and interest amounts of the Loans owing to, each Lender from time to time (the βRegisterβ). The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and each Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection by any Borrower or any Lender at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall provide any Borrower with a copy of the Register upon reasonable request. (e) (i) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an assignee representing that it is an Eligible Assignee, together with any Revolving Loan Note or Notes subject to such assignment, the Administrative Agent shall, if such Assignment and Acceptance has been completed and is in substantially the form of Exhibit C-1 hereto, (A) accept such Assignment and Acceptance, (B) record the information contained therein in the Register and (C) give prompt notice thereof to Livent. Within five (5) Business Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and deliver to the Administrative Agent in exchange for the surrendered Revolving Loan Note or Notes a new Revolving Loan Note to the order of such Eligible Assignee in an amount equal to the Commitments and/or Loans assumed by it pursuant to such Assignment and Acceptance and a new Revolving Loan Note to the order of the assigning Lender in an amount equal to the Commitments and/or Loans retained by it hereunder. Such new Revolving Loan Notes shall be in an aggregate principal amount equal to the aggregate principal amount of such surrendered Revolving Loan Note or Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be in substantially the form of Exhibit A hereto. Such surrendered Revolving Loan Note or Notes shall be marked βcanceledβ and shall be returned promptly to Livent. 122 -
(ii) Upon its receipt of a New Commitment Acceptance executed by a New Lender representing that it is an Eligible Assignee, the Administrative Agent shall, if such New Commitment Acceptance has been completed and is in substantially the form of Exhibit C-3 hereto, (A) accept such New Commitment Acceptance, (B) record the information contained therein in the Register and (C) give prompt notice thereof to Livent. Within five (5) Business Days after its receipt of such notice, the relevant Borrower, at its own expense, shall execute and deliver to the Administrative Agent a new Revolving Loan Note to the order of such New Lender in an amount equal to the Commitments assumed by it pursuant to such New Commitment Acceptance. Such new Revolving Loan Note shall be dated the relevant Increase Date and shall otherwise be in substantially the form of Exhibit A hereto. (f) Each Lender may sell participations to one or more banks or other entities (other than (x) any natural person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural person), (y) any Borrower or any Affiliates of such Borrower or (z) any Defaulting Lender) (a βParticipantβ) in or to a portion of its rights and obligations under this Agreement (including a portion of its Commitments, the Loans owing to it and the Note or Notes held by it); provided, however, that (i) such Lenderβs obligations under this Agreement (including its Commitments hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) such Lender shall remain the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lenderβs rights and obligations under this Agreement, (v) except in the case of a participation involving a Lender and one of its Affiliates (and this exception shall apply only so long as the participant remains an Affiliate of such Lender), the parties to each such participation shall execute a participation agreement in substantially the form of the Participation Agreement, and (vi) no participant under any such participation shall have any right to approve any amendment to or waiver of any provision of any Loan Document, or any consent to any departure by any Borrower therefrom, except to the extent that such amendment, waiver or consent would alter the principal of, or interest on, the Loan or Loans in which such participant is participating or any fees or other amounts payable to the Lenders hereunder, or postpone any date fixed for any payment of principal of, or interest on, the Loans or any fees or other amounts payable hereunder. The Borrowers agree that each Participant shall be entitled to the benefits of Section 2.10 and Section 3.03 (subject to the requirements and limitations therein, including the requirements under Section 2.10, it being understood that the documentation required under Section 2.10 shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to this Section 9.07(a); provided that such Participant (A) agrees to be subject to the provisions of Section 3.05 as if it were an assignee under this Section 9.07(f); and (B) shall not be entitled to receive any greater payment under Section 2.10 or Section 3.03, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each participant and the principal and interest amounts of each participantβs interest in the Loans or other obligations hereunder (the βParticipant Registerβ); provided, that no Lender shall have any obligation to disclose all or any portion of the Participant Register to any Person (including the identity of any participant or any information relating to a participantβs interest in any Loan or other obligation hereunder) except 123 -
expressly waived hereby, and without discharging or otherwise affecting the obligations of the Guarantors hereunder (which shall remain absolute and unconditional notwithstanding any such action or omission to act), from time to time, to: (a) supplement, renew, extend, accelerate or otherwise change the time for payment of, or other terms relating to, the Guarantied Obligations, or any part of them, or otherwise modify, amend or change the terms of any promissory note or other agreement, document or instrument (including this Agreement and the other Loan Documents) now or hereafter executed by any Borrower and delivered to the Guarantied Parties or any of them, including any increase or decrease of principal or the rate of interest thereon; (b) waive or otherwise consent to noncompliance with any provision of any instrument evidencing the Guarantied Obligations, or any part thereof, or any other instrument or agreement in respect of the Guarantied Obligations (including this Agreement and the other Loan Documents) now or hereafter executed by any Borrower and delivered to the Guarantied Parties or any of them; (c) accept partial payments on the Guarantied Obligations; (d) receive, take and hold additional security or collateral for the payment of the Guarantied Obligations or any part of them and exchange, enforce, waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate, transfer, otherwise alter and release any such additional security or collateral; (e) settle, release, compromise, collect or otherwise liquidate the Guarantied Obligations or accept, substitute, release, exchange or otherwise alter, affect or impair any security or collateral for the Guarantied Obligations or any part of them or any other guaranty therefor, in any manner; (f) add, release or substitute any one or more other guarantors, makers or endorsers of the Guarantied Obligations or any part of them and otherwise deal with any Borrower or any other guarantor, maker or endorser; (g) apply to the Guarantied Obligations any and all payments or recoveries from any Borrower, from any other guarantor, maker or endorser of the Guarantied Obligations or any part of them to the Guarantied Obligations in such order as provided herein whether such Guarantied Obligations are secured or unsecured or guaranteed or not guaranteed by others; and (h) refund at any time any payment received by any Guarantied Party in respect of any of the Guarantied Obligations, and payment to such Person of the amount so refunded shall be fully guaranteed hereby even though prior thereto this Loan Guaranty shall have been cancelled or surrendered, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any Guarantor hereunder in respect of the amount so refunded; even if any right of reimbursement or subrogation or other right or remedy of any Guarantor is extinguished, affected or impaired by any of the foregoing (including any election of remedies by reason of any judicial, non-judicial or other proceeding in respect of the Guarantied Obligations which impairs any subrogation, reimbursement or other right of any Guarantor). 131 -
The Guarantors FMC ASIA-PACIFIC, INC. By: Name: Title: FMC LITHIUM OVERSEAS LTD. By: Name: Title: [Signature Page to Livent Credit Agreement] -
CITIBANK, N.A., as Administrative Agent, a Lender and an Issuing Bank By: Name: Title: [Signature Page to Livent Credit Agreement] -
BANK OF AMERICA, N.A., as a Lender and an Issuing Bank By: Name: Title: [Signature Page to Livent Credit Agreement] -
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender and an Issuing Bank By: Name: Title: [Signature Page to Livent Credit Agreement] -
XXXXXXX XXXXX BANK USA, as a Lender and an Issuing Bank By: Name: Title: [Signature Page to Livent Credit Agreement] -
CITIZENS BANK, N.A., as a Lender By: Name: Title: [Signature Page to Livent Credit Agreement] -
INDUSTRIAL AND COMMERCIAL BANK OF CHINA LIMITED, NEW YORK BRANCH, as a Lender By: Name: Title: [Signature Page to Livent Credit Agreement] -
JPMORGAN CHASE BANK, N.A., as a Lender By: Name: Title: [Signature Page to Livent Credit Agreement] -
SUMITOMO MITSUI BANKING CORPORATION, as a Lender By: Name: Title: [Signature Page to Livent Credit Agreement] -
[Signature Page to Livent Credit Agreement] -
Schedule I Commitments Revolving Loan Letter of Credit Lender Commitment Commitment Citibank, N.A. $60,000,000 $12,500,000 Bank of America, N.A. $60,000,000 $12,500,000 Credit Suisse AG, Cayman $60,000,000 $12,500,000 Islands Branch Xxxxxxx Xxxxx Bank USA $60,000,000 $12,500,000 Citizens Bank, N.A. $40,000,000 N/A Industrial and Commercial Bank of China Limited, New $40,000,000 N/A York Branch JPMorgan Chase Bank, N.A. $40,000,000 N/A Sumitomo Mitsui Banking $40,000,000 N/A Corporation TOTAL $400,000,000 $50,000,000 -
Exhibit B FORM OF BORROWING NOTICE [To be attached] WEIL:\97457544\6\35899.0596
EXHIBIT B-1 TO CREDIT AGREEMENT FORM OF NOTICE OF BORROWING CITIBANK, N.A., as administrative agent (in such capacity, the βAdministrative Agentβ) under the Credit Agreement referred to below 000 Xxxxxxxxx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000 [Date] Attention: Xxxxx Xxxxxx Ladies and Gentlemen: Reference is made to the Credit Agreement, dated as of September 28, 2018 (as the same may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ), among Livent Corporation, a Delaware corporation (βLiventβ), and FMC Lithium USA Corp., a Delaware corporation (βLithium Opcoβ), as borrowers, the Guarantors party thereto from time to time, the Lenders party thereto from time to time and the Administrative Agent for the Lenders thereunder. Capitalized terms used herein and not defined herein are used herein as defined in the Credit Agreement. Livent [, as representative of Lithium Opco,], hereby gives you notice, irrevocably (subject to the terms of Section 2.07(b) and Section 3.04 of the Credit Agreement), pursuant to Section 3.01 of the Credit Agreement that the undersigned hereby requests a Borrowing under the Credit Agreement, and in connection therewith sets forth below the information relating to such Borrowing (the βProposed Borrowingβ) as required by Section 3.01(a) of the Credit Agreement: (i) The Business Day of the Proposed Borrowing is [ ], 20[ ] (the βFunding Dateβ). (ii) The Type of Revolving Loans comprising the Proposed Borrowing is [Base Rate Loans] [Eurocurrency Rate Loans]. (iii) The [Currency of the Proposed Borrowing is [ ] and the]1 aggregate amount of the Proposed Borrowing is [ ]. (iv) [The Interest Period for each Revolving Loan made as part of the Proposed Borrowing is [one] [two] [three] [six] month[s].] 2 (v) The Borrower is [Livent][Lithium Opco]. 1 Insert in case of Eurocurrency Rate Borrowing only. 2 To be used in the case of a Borrowing comprised of Eurocurrency Rate Loans. WEIL:\97460291\2\35899.0596
The undersigned hereby certifies that the following statements are true on the date hereof and shall be true on the Funding Date both before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom: A. the representations and warranties set forth in the Loan Documents are true and correct in all material respects (except any representations and warranties that are qualified by materiality, which shall be true and correct in all respects) on and as of the Funding Date, before and after giving effect to the Proposed Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent such representations and warranties that, by their terms, refer to a date other than the date of the Proposed Borrowing, in which case such representations and warranties shall have been true and correct as of such earlier date; [and] B. no event has occurred and is continuing, or would result from the Proposed Borrowing or from the application of the proceeds therefrom, which constitutes a Default; [and] C. [the Consolidated Cash Balance on and as of the date of such Proposed Borrowing does not exceed $50,000,000, before and immediately after giving effect to such Proposed Borrowing, to the extent Total Outstandings will exceed $50,000,000 following such Proposed Borrowing; and D. the Total Outstandings on and as of the date of such Proposed Borrowing does not exceed $325,000,000, before and immediately after giving effect to such Proposed Borrowing].3 [Signature Page Follows] 3 To be included for any Proposed Borrowing occurring from the First Amendment Effect Date until the Covenant Conversion Date. WEIL:\97460291\2\35899.0596
LIVENT CORPORATION [as representative of FMC LITHIUM USA CORP.]4 By: Name: Title: 4 If applicable. WEIL:\97460291\2\35899.0596
Exhibit C FORM OF COMPLIANCE CERTIFICATE [To be attached] WEIL:\97457544\6\35899.0596
EXHIBIT G TO CREDIT AGREEMENT FORM OF COMPLIANCE CERTIFICATE To: The Lenders parties to the Credit Agreement Described Below Date: [β] This Compliance Certificate is furnished pursuant to that certain Credit Agreement dated as of September 28, 2018 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the βCredit Agreementβ) among Livent Corporation, a Delaware corporation (βLiventβ), and FMC Lithium USA Corp., a Delaware corporation, the Guarantors party thereto from time to time, the Lenders party thereto from time to time and Citibank, N.A., as administrative agent (in such capacity, the βAdministrative Agentβ) for the Lenders thereunder. Capitalized terms used herein and not defined herein are used herein as defined in the Credit Agreement. THE UNDERSIGNED HEREBY CERTIFIES THAT: 1. I am the duly elected [β] of the Livent; 2. I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of Livent and its Subsidiaries during the accounting period covered by the attached financial statements in Exhibit A [for quarterly financial statements add: and such financial statements present fairly in all material respects the financial condition and results of operations of Livent and its Subsidiaries on a Consolidated basis in accordance with GAAP, subject to normal year-end audit adjustments and the absence of footnotes] [for annual financial statements add: and such financial statements present fairly in all material respects the financial condition and results of operations of Livent and its Subsidiaries on a Consolidated basis in accordance with GAAP consistently applied (except for changes with which Liventβs Accountants have concurred and have been disclosed in the notes to the financial statements)]. 3. The examinations described in paragraph 2 did not disclose and I have no knowledge of the existence of any condition or event which constitutes a Default or Event of Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Compliance Certificate [, except as disclosed in Annex A hereto]1. 4. [Attached as Schedule [I] hereto is a list of each Subsidiary of Livent that identifies each as a Restricted Subsidiary, an Unrestricted Subsidiary and/or Material Domestic Subsidiary as of the last day of the Fiscal Quarter covered hereby.]2 [There is no change in the list of Restricted Subsidiaries, 1 If unable to provide the foregoing certification attach an Annex A specifying the details of each Default or Event of Default that has occurred and is continuing and any action taken or proposed to be taken with respect thereto. 2 Only required if a Subsidiary has been designated as an Unrestricted Subsidiary since delivery of the last Compliance Certificate. WEIL:\97460301\1\35899.0596
Unrestricted Subsidiaries and/or Material Domestic Subsidiary since the later of the Effective Date and the date of the last Compliance Certificate.] 5. [Attached as Schedule [II] hereto are reconciliation statements of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries designated by Livent from the attached financial statements in Exhibit A.]3 6. Schedule [III] attached hereto sets forth financial data and calculations used in determining the [Total Leverage Ratio][First Lien Leverage Ratio]4 and demonstrating compliance with each of the financial covenants contained in Section Error! Reference source not found. of the Credit Agreement, all of which financial data and calculations are true, complete and correct. 7. [Attached as Schedule [IV] is a Perfection Certificate Supplement which is true, complete and correct in all respects][I hereby certify that there has been no change in information contained in the [Perfection Certificate][latest Perfection Certificate Supplement] since the date of such [Perfection Certificate][Perfection Certificate Supplement].5 [Signature Page Follows] 3 Only required if one or more of Liventβs Subsidiaries is or has been designated as an Unrestricted Subsidiary at the time of delivery of the applicable Compliance Certificate. 4 Prior to the Covenant Conversion Date, include financial data and calculations for the Total Leverage Ratio. On and after the Covenant Conversion Date, include financial data and calculations for the First Lien Leverage Ratio. 5 If unable to provide the foregoing certification, deliver a Perfection Certificate Supplement pursuant to Section 6.02(f) of the Credit Agreement. WEIL:\97460301\1\35899.0596
The foregoing certifications, together with the information and computations set forth in the Schedules [I] through [IV] [and Annex A] and the financial statements delivered with this Compliance Certificate contained in Exhibit A in support hereof, are made and delivered as of the first date written above. LIVENT CORPORATION By: Name: Title: WEIL:\97460301\1\35899.0596
EXHIBIT A FINANCIAL STATEMENTS WEIL:\97460301\1\35899.0596
SCHEDULE [I] LIST OF RESTRICTED SUBSIDIARIES, UNRESTRICTED SUBSIDIARIES AND MATERIAL DOMESTIC SUBSIDIARIES6 6 If applicable. WEIL:\97460301\1\35899.0596
SCHEDULE [II] RECONCILIATION STATEMENTS FOR DESIGNATION OF UNRESTRICTED SUBSIDIARIES7 7 If applicable. WEIL:\97460301\1\35899.0596
SCHEDULE [III] [TOTAL LEVERAGE RATIO][FIRST LIEN LEVERAGE RATIO] AND COMPLIANCE WITH FINANCIAL COVENANTS WEIL:\97460301\1\35899.0596
SCHEDULE [IV] PERFECTION CERTIFICATE SUPPLEMENT8 8 If applicable. WEIL:\97460301\1\35899.0596