EXECUTION VERSION AMENDMENT NO. 4 AMENDMENT NO. 4, dated as of September 28, 2018 (this “Amendment”), to the Term Loan Agreement, dated as of October 10, 2014 (as amended by that certain Amendment No. 1, dated as of August 26, 2015, that certain...
EXECUTION VERSION AMENDMENT XX. 0 XXXXXXXXX XX. 0, dated as of September 28, 2018 (this “Amendment”), to the Term Loan Agreement, dated as of October 10, 2014 (as amended by that certain Amendment No. 1, dated as of August 26, 2015, that certain Amendment No. 2, dated as of March 24, 2016 and that certain Amendment No. 3, dated as of May 2, 2017, and as the same may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”), among FMC Corporation, a Delaware corporation (the “Company”), certain of the Company’s subsidiaries from time to time party thereto as borrowers (together with the Company, the “Borrowers”), Citibank, N.A., as Administrative Agent (as such term is defined in the Term Loan Agreement), each lender from time to time party thereto (collectively, the “Lenders” and individually, a “Lender”) and the other parties thereto. WHEREAS, the Company intends to separate and spin-off assets constituting the lithium business of the Company in a series of transactions as described in the definition of Permitted Separation Transactions set forth below; WHEREAS, in connection with the proposed separation of the lithium business, the Company has requested certain modifications to the Term Loan Agreement as described herein (the “Proposed Amendments”); WHEREAS, Section 9.01 of the Term Loan Agreement provides that the Company and the Required Lenders may amend the Loan Documents; WHEREAS, the Lenders party hereto have agreed to approve the Proposed Amendments; and WHEREAS, in order to effect the foregoing, the Company and the other parties hereto desire to amend the Term Loan Agreement, subject to the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: ARTICLE I Amendment SECTION 1.01. Defined Terms. Capitalized terms used herein (including in the recitals hereto) and not otherwise defined herein shall have the meanings assigned to such terms in the Term Loan Agreement. The rules of construction specified in Section 1.04 of the Term Loan Agreement also apply to this Amendment. SECTION 1.02. Amendment of Term Loan Agreement. Effective as of the Amendment Effective Date (as defined below): (a) Section 1.01 of the Term Loan Agreement is hereby amended to add the following new defined term in its correct alphabetical order: “Permitted Separation Transactions” means the FMC Lithium Assets Contribution, the Lithium Spinco Contribution, the Lithium IPO and the Livent Revolving Credit Facility and any ancillary or related transactions contemplated thereby. As used WEIL:\96703271\4\35899.0596
herein, the terms (i) “FMC Lithium Assets Contribution” shall mean the direct or indirect transfer (in one or more transactions) by FMC and its subsidiaries to FMC Lithium USA Corp., a Delaware corporation (“Lithium Opco”), of the portions of the FMC Lithium Assets that were not owned by Lithium Opco or any of its subsidiaries prior to such transfer, in exchange for certain equity interest in Lithium Opco, (ii) “FMC Lithium Assets” shall mean certain assets, liabilities and operations of FMC Corporation and certain of its subsidiaries that are used for the manufacturing of lithium for use in lithium products, which are used primarily in energy storage, specialty polymers and chemical synthesis, (iii) “Lithium Spinco Contribution” shall mean the direct or indirect transfer (in one or more transactions) by FMC Corporation of (a) 100% of the equity interest it holds in Lithium Opco, (b) the equity interest it holds in FMC Chemicals Limited (UK), (c) the equity interest it holds in FMC Switzerland IV GmbH, and (d) the equity interest it holds in Lithium Singapore Private Limited, in each case, to Livent Corporation (“Livent”) in exchange for certain equity interest in Livent and cash, if any, (iv) “Lithium IPO” shall mean the initial underwritten public offering of common equity interests in Livent pursuant to an effective registration statement filed with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended from time to time and (v) “Livent Revolving Credit Facility” shall mean (a) the $400,000,000 senior secured revolving credit facility, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), among Livent, certain of Livent’s subsidiaries from time to time party thereto, Citibank, N.A., as administrative agent, each lender from time to time party thereto and the other parties party thereto, (b) all liens, pledges, guarantees and other obligations provided or incurred in connection therewith and (c) any borrowing or other extensions of credit thereunder, including letters of credit. (b) Article VI of the Term Loan Agreement is hereby amended to add the following new Section 6.05: “SECTION 6.05. Acknowledgement and Consent to Permitted Separation Transaction. Notwithstanding anything to the contrary in this Article VI, nothing in this Article VI shall prohibit the consummation of any of the Permitted Separation Transactions.” SECTION 1.03. Effectiveness. Section 1.02 of this Amendment shall become effective as of the first date (the “Amendment Effective Date”) on which the following conditions have been satisfied: (a) The Administrative Agent (or its counsel) shall have received from the Company and the Required Lenders either (x) counterparts of this Amendment signed on behalf of such parties or (y) written evidence reasonably satisfactory to the Administrative Agent (which may include facsimile or other electronic transmissions of signed signature pages) that such parties have signed counterparts of this Amendment. (b) The Administrative Agent shall have received, in immediately available funds, payment or reimbursement of all costs, fees, out-of-pocket expenses, compensation and other amounts then due and payable in connection with this Amendment, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent. The Administrative Agent shall notify the Company and the Lenders of the Amendment Effective Date and such notice shall be conclusive and binding. 2 WEIL:\96703271\4\35899.0596
ARTICLE II Miscellaneous SECTION 2.01. Representations and Warranties. (a) To induce the other parties hereto to enter into this Amendment, the Company represents and warrants to each of the Lenders and the Administrative Agent that, as of the Amendment Effective Date and after giving effect to the transactions and amendments to occur on the Amendment Effective Date, this Amendment has been duly authorized, executed and delivered by the Company and constitutes, and the Term Loan Agreement, as amended hereby on the Amendment Effective Date, will constitute, legal, valid and binding obligations of the Borrowers, enforceable against each of the Borrowers in accordance with their terms, except as such enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and by general principles of equity and the implied covenant of good faith and fair dealing. (b) Each of the representations and warranties made by each party to each Loan Document in or pursuant to this Amendment or any other Loan Document, or contained in any certificate or financial statement (other than estimates and projections which are (x) identified as such and (y) contained in any financial statement) furnished at any time under or in connection with this Amendment or any other Loan Document shall be true and correct in all material respects on and as of the Amendment Effective Date as if made on and as of such date (except to the extent that such representations and warranties relate to a particular date, in which case such representations and warranties shall be true and correct in all material respects on and as of such date), both before and after giving effect to the this Amendment. (c) After giving effect to this Amendment and the transactions contemplated hereby on the relevant date, no Default or Event of Default has occurred and is continuing on the Amendment Effective Date. SECTION 2.02. Effect of Amendment. (a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of, the Administrative Agent, the Lenders, any other Agent and any of their respective Affiliates under the Term Loan Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Term Loan Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to establish a precedent for purposes of interpreting the provisions of the Term Loan Agreement or entitle any Borrower to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Term Loan Agreement or any other Loan Document in similar or different circumstances. This Amendment shall apply to and be effective only with respect to the provisions of the Term Loan Agreement and the other Loan Documents specifically referred to herein. (b) On and after the Amendment Effective Date, each reference in the Term Loan Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import, and each reference to the Term Loan Agreement, “thereunder”, “thereof”, “therein” or words of like import in any other Loan Document, shall be deemed a reference to the Term Loan Agreement, as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Term Loan Agreement and the other Loan Documents. SECTION 2.03. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW 3 WEIL:\96703271\4\35899.0596
YORK. The other provisions of Article IX of the Term Loan Agreement shall apply to this Amendment to the same extent as if fully set forth herein. SECTION 2.04. Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. [SIGNATURE PAGES FOLLOW] 4 WEIL:\96703271\4\35899.0596
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their officers as of the date first above written. The U.S. Borrower FMC CORPORATION By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Vice President, Corporate Strategy and Treasurer The Euro Borrowers FMC FINANCE B.V. By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx Title: Managing Director FMC CHEMICALS NETHERLANDS B.V. By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx Title: Managing Director FMC LUXEMBOURG HOLDINGS S.À X.X. By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx Title: Managing Director FMC LUXEMBOURG S.À X.X. By: /s/ Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx Title: Managing Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
CITIBANK, N.A., as Administrative Agent By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
BANK OF AMERICA, N.A., as Lender By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
Sumitomo Mitsui Banking Corporation, as Lender By: /s/ Xxxxx X. Xxxxxxxxx Name: Xxxxx X. Xxxxxxxxx Title: Managing Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
BNP PARIBAS as Lender By: /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Director By: /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Managing Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
JPMORGAN CHASE BANK, N.A., as Lender By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Executive Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
TD BANK, N.A., as Lender By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Senior Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
CoBank, ACB, as Lender By: /s/ Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
PNC BANK, NATIONAL ASSOCIATION, as Lender By: /s/ Xxxxxx XxXxxxxx Name: Xxxxxx XxXxxxxx Title: Senior Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
U.S. Bank, National Association, as Lender By: /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
The Bank of New York Mellon, as Lender By: /s/ Xxxxxxxxxxx Xxxxx Name: Xxxxxxxxxxx Xxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
Citizens Bank of Pennsylvania, as Lender By: /s/ Xxxxxxx X. X’Xxxxx Name: Xxxxxxx X. X’Xxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
COÖPERATIEVE RABOBANK, U.A., NEW YORK BRANCH, as Lender By: /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Executive Director By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Executive Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
XXXXX FARGO BANK, N.A., as Lender By: /s/ Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx Title: Managing Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
KBC BANK N.V., NEW YORK BRANCH, as Lender By: /s/ Xxxx Xxxxxxxxx Name: Xxxx Xxxxxxxxx Title: Director By: /s/ Xxxxx Xxxx Name: Xxxxx Xxxx Title: Associate [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
BRANCH BANKING AND TRUST COMPANY, as Lender By: /s/ J. Xxxxxx Xxxxxxxxx Name: J. Xxxxxx Xxxxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
Banco Santander, N.A., as Lender By: /s/ Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxx Title: Executive Director By: /s/ Xxxxxxxx Xxxxxxxxx Name: Xxxxxxxx Xxxxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
MUFG, Bank, Ltd f/k/a The Bank of Tokyo- Mitubishi UFJ, Ltd., as Lender By: /s/ Xxxxx Xxxxxxxxx Name: Xxxxx Xxxxxxxxx Title: Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
BANK OF CHINA, NEW YORK BRANCH, as Lender By: /s/ Xxxxxxx Xxxx Name: Xxxxxxx Xxxx Title: Chief Lending Officer [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
DNB Capital LLC, as Lender By: /s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx Title: Senior Vice President By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED, as Lender By: /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Director [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT] WEIL:\96678340\8\35899.0596
COMPASS BANK, as Lender By /s/ Xxxxx Xxxxxxxx Name: Xxxxx Xxxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT]
FARM CREDIT BANK OF TEXAS, as Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT]
Bayerische Landesbank, New York Branch as Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Executive Director By: /s/ Xxxx Xxxxxxxx Name: Xxxx Xxxxxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT]
NORDEA BANK AB (PUBL), NEW YORK BRANCH, as Lender By: /s/ Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: Senior Vice President By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Senior Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT]
SUNTRUST BANK, as Lender By: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT]
HSBC Bank, USA, N.A., as Lender By: /s/ Xxxxx Xxx Name: Xxxxx Xxx Title: Vice President [SIGNATURE PAGE TO AMENDMENT NO. 4 TO TERM LOAN AGREEMENT]
