livent_fourthamendtocred






EXECUTION VERSION     WEIL:\98229966\5\35899.0596  FOURTH AMENDMENT TO CREDIT AGREEMENT  FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of  December 28, 2021, by and among LIVENT CORPORATION, a Delaware corporation (“Livent”),  LIVENT USA CORP. (f/k/a FMC LITHIUM USA CORP., a Delaware corporation (together with Livent,  collectively, the “Borrowers” and, each, a “Borrower”), the Guarantors (as defined below), the lenders and  issuing banks listed on the signature pages hereof under the heading “Lenders” (the “Lenders”) and  CITIBANK, N.A., as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders.  W I T N E S S E T H:  WHEREAS, the Borrowers, the guarantors party thereto from time to time (the  “Guarantors”), the lenders from time to time party thereto and the Administrative Agent are party to that  certain Credit Agreement, dated as of September 28, 2018 (as amended by the First Amendment to Credit  Agreement, dated as of May 6, 2020, the Second Amendment to Credit Agreement, dated as of August 3,  2020, and the Third Amendment to Credit Agreement, dated as of November 5, 2021, the “Existing Credit  Agreement”; the Existing Credit Agreement, as amended by this Amendment, the “Amended Credit  Agreement”).  WHEREAS, the Borrowers wish to amend Sections 6.04(d) and 6.04(e) of the Existing  Credit Agreement, subject to the terms and conditions set forth herein, to permit certain corporate  reorganizations pursuant to which (i) the Stock of Livent Switzerland GmbH (f/k/a FMC Switzerland IV GmbH)  (“Livent SUI”) currently held by Livent will be transferred, directly or indirectly, to Livent’s wholly-owned  direct subsidiary, Livent Lithium Foreign HoldCo B.V. (f/k/a FMC Lithium Foreign HoldCo B.V.) (“Lithium  BV”) and (ii) the Stock of Livent Singapore Pte. Ltd. (f/k/a FMC Singapore PTE Limited) (“LL Singapore”)  currently held by Livent and by Lithium BV will be transferred to a newly created UK limited company that will  be, and, through a series of subsequent transfers of the Stock of such UK limited company, become, a wholly- owned indirect subsidiary of Livent that is 99.99% indirectly owned by Lithium BV (the transactions set forth  in clauses (i) and (ii), the “Specified Reorganization”).   WHEREAS, the Lien on the issued and outstanding Stock of Livent SUI and LL Singapore  held by Livent immediately prior to the consummation of the Specified Reorganization will be released as  a result of the Specified Reorganization.  NOW, THEREFORE, in consideration of the covenants and agreements contained  herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby  acknowledged, the parties hereto agree as follows:  SECTION 1.  Defined Terms.  Capitalized terms used but not otherwise defined herein  shall have the respective meanings assigned to such terms in the Amended Credit Agreement.  SECTION 2.  Amendments.  Effective as of the Fourth Amendment Effective Date, the  Existing Credit Agreement is hereby amended and restated in its entirety as follows:  (a)  Section 1.01 is hereby amended by adding the following defined terms in the  appropriate alphabetical order therein:  “Fourth Amendment” means that certain Fourth Amendment to Credit Agreement, dated  as of December 28, 2021, by and among the Borrowers, the Guarantors, the Lenders party  thereto and the Administrative Agent.  Exhibit 10.22 





 






- 2 -           WEIL:\98229966\5\35899.0596  “Fourth Amendment Effective Date” means the date on which the conditions to  effectiveness of the Fourth Amendment were first satisfied or waived in accordance with the  Fourth Amendment. The Fourth Amendment Effective Date occurred on December 28, 2021.  “Specified Reorganization” means, collectively, those certain transactions identified to the  Administrative Agent and the Lenders on or prior to the Fourth Amendment Effective Date  pursuant to which (i) the issued and outstanding Stock of Livent Switzerland GmbH (f/k/a FMC  Switzerland IV GmbH) currently held by Livent will be transferred, directly or indirectly, to  Livent’s wholly-owned direct subsidiary, Livent Lithium Foreign HoldCo B.V. (f/k/a FMC Lithium  Foreign HoldCo BV) (“Lithium BV”) and (ii) the issued and outstanding Stock of Livent Singapore  Pte. Ltd. (f/k/a FMC Singapore PTE Limited) currently held by Livent and by Lithium BV will be,  and, through a series of subsequent transfers of the Stock of such UK limited company, become,   transferred, directly or indirectly, to a newly created UK limited company that will be a wholly- owned indirect subsidiary of Livent that is 99.99% indirectly owned by Lithium BV.   (b)  Section 6.04(d)(xvii) of the Credit Agreement is hereby amended by deleting the  word “and” at the end thereof.  (c)  Section 6.04(d)(xviii) of the Credit Agreement is hereby amended by deleting the  period at the end thereof and replacing it with “; and”.  (d)  Section 6.04(d) of the Credit Agreement is hereby amended by inserting the  following as a new paragraph (xix) thereof:  “(xix) to the extent constituting Investments, the transactions in respect of the Specified  Reorganization.”  (e)  Section 6.04(e)(xi) of the Credit Agreement is hereby amended by deleting the  word “and” at the end thereof.  (f)  Section 6.04(e)(xii) of the Credit Agreement is hereby amended by deleting the  period at the end thereof and replacing it with “; and”.  (g)  Section 6.04(e) of the Credit Agreement is hereby amended by inserting the  following as a new paragraph (xiii) thereof:  “(xiii) to the extent constituting Dispositions, the transactions in respect of the Specified  Reorganization.”  SECTION 3.  Representations and Warranties. Each Loan Parties hereby represent and  warrant to the Lenders on the Fourth Amendment Effective Date that:  (a)  The execution, delivery and performance by each Loan Party of this Amendment  and the consummation of the transactions contemplated hereby:  (i)  are within such Loan Party’s corporate, limited liability company, partnership  or other powers;  





 






- 3 -           WEIL:\98229966\5\35899.0596  (ii)  have been duly authorized by all necessary action, including the consent of  shareholders, partners and members where required;  (iii)  do not and will not  contravene such Loan Party’s or any other Restricted  Subsidiaries’ respective Constituent Documents,  violate any other Requirement of Law  applicable to such Loan Party or any other Restricted Subsidiary (including the Margin  Regulations), or any order or decree of any Governmental Authority or arbitrator applicable  to such Loan Party or any other Restricted Subsidiary, conflict with or result in the breach  of, or constitute a default under, or result in or permit the termination or acceleration of,  any Contractual Obligation of such Loan Party or any other Restricted Subsidiary, or result  in the creation or imposition of any Lien upon any property of such Loan Party or any other  Restricted Subsidiary; and  (iv)  do not require the consent of, authorization by, approval of, notice to, permit  from or filing or registration with, any Governmental Authority or any other Person, other  than those that have been or will be, prior to the Fourth Amendment Effective Date,  obtained or made, and each of which on the Fourth Amendment Effective Date will be in  full force and effect.  (b)  This Amendment has been duly executed and delivered by each Loan Party.  This  Amendment is the legal, valid and binding obligation of each Loan Party, enforceable against such Loan  Party in accordance with its terms.  (c)  Immediately prior to and after giving effect to the terms, conditions, and provisions  of this Amendment, no Default or Event of Default exists.  (d)  The representations and warranties contained in the Loan Documents 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) with the same effect as though made on and as of such date, other  than any such representations or warranties that, by their terms, refer to an earlier date, such representations  and warranties are true and correct as of such earlier date.  SECTION 4.  Conditions to Effectiveness of this Amendment.  The effectiveness of this  Amendment is subject to the satisfaction (or waiver in writing by the Administrative Agent (at the direction  of the Required Lenders)) of the following conditions precedent (the date on which such conditions are  satisfied or waived being referred to herein as the “Fourth Amendment Effective Date”):  (a)  This Amendment, duly executed and delivered by each of the Borrowers, the  Guarantors and the Lenders (which together constitute the Required Lenders).  (b)  Immediately prior to and after giving effect to the terms, conditions, and provisions  of this Amendment, no Default or Event of Default exists.  (c)  The representations and warranties contained in this Amendment and the other  Loan Documents 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) with the same effect as though made  on and as of such date, other than any such representations or warranties that, by their terms, refer to an  earlier date, such representations and warranties are true and correct as of such earlier date.  





 






- 4 -           WEIL:\98229966\5\35899.0596  SECTION 5.  Effect on Loan Documents.  (a)  On and after the effectiveness of this Amendment, each reference in the Existing  Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a  reference to the Amended Credit Agreement and each reference in any other Loan Document to “the Credit  Agreement” shall mean and be a reference to the Amended Credit Agreement.  (b)  Except as specifically amended hereby, all Loan Documents shall continue to be  in full force and effect and are hereby in all respects ratified and confirmed.  (c)  The execution, delivery and effectiveness of this Amendment shall not operate as  a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan  Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or  otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan  Documents, except as provided herein.   (d)  The Borrowers and the other parties hereto acknowledge and agree that, on and  after the effective date of this Amendment, this Amendment shall constitute a Loan Document for all  purposes of the Amended Credit Agreement.  SECTION 6.  Applicable Law; Waiver of Right; Trial by Jury; Jurisdiction.  THIS  AMENDMENT, AND ALL CLAIMS OR CAUSES OF ACTION (WHETHER IN CONTRACT OR  TORT OR OTHERWISE) THAT MAY BE BASED UPON, ARISE OUT OF OR RELATE IN ANY WAY  TO THIS AMENDMENT, THE EXECUTION OR PERFORMANCE OF THIS AMENDMENT OR THE  TRANSACTIONS CONTEMPLATED HEREBY, SHALL BE GOVERNED BY, AND CONSTRUED  IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO  ANY PRINCIPLE OF CONFLICTS OF LAW THAT COULD REQUIRE THE APPLICATION OF ANY  OTHER LAW.  The jurisdiction and waiver of right to trial by jury provisions in Sections 9.12 and 9.13 of  the Existing Credit Agreement are incorporated herein by reference, mutatis mutandis.   SECTION 7.  Miscellaneous.  (a)  This Amendment shall be binding upon and inure to the benefit of the Loan Parties  and their respective successors and permitted assigns, and upon the Administrative Agent and the Lenders  and their respective successors and permitted assigns.  (b)  The illegality or unenforceability of any provision of this Amendment or any  instrument or agreement required hereunder shall not in any way affect or impair the legality or  enforceability of the remaining provisions of this Amendment or any instrument or agreement required  hereunder.  (c)  This Amendment may be executed in counterparts (and by different parties hereto  in different counterparts), each of which shall constitute an original, but all of which when taken together  shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this  Amendment by telecopy or other electronic imaging (including in .pdf format) means shall be effective as  delivery of a manually executed counterpart of this Amendment. The words “execution,” “signed,”  “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection  with this Amendment and the transactions contemplated hereby or thereby shall be deemed to include  Electronic Signatures (as defined below), deliveries or the keeping of records in electronic form, each of  





 






- 5 -           WEIL:\98229966\5\35899.0596  which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical  delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as  provided for in any applicable law, including the Federal Electronic Signatures in Global and National  Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws  based on the Uniform Electronic Transactions Act. For the purposes of the foregoing, “Electronic  Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other  record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.  (d)  Section headings herein are included for convenience of reference only and shall  not affect the interpretation of this Amendment.  SECTION 8.  Reaffirmation.  Each of the Loan Parties signatory hereto as debtor, grantor,  pledgor, guarantor, assignor, or in any other similar capacity in which such Loan Party grants liens or  security interests in its property or otherwise acts as accommodation party or guarantor, as the case may be,  hereby (a) ratifies and reaffirms all of its payment and performance obligations, contingent or otherwise,  under each of the Loan Documents to which it is a party (after giving effect hereto) and (b) to the extent  such Loan Party granted liens on or security interests in any of its property pursuant to any such Loan  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.]  





 






 





 






 





 






[SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]   CITIBANK, N.A., as Administrative Agent       By: ___________________________________   Name: Michael Vondriska  Title:   Vice President    





 






[SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]   CITIBANK, N.A., as Lender       By:  Name:  Michael Vondriska   Title:    Vice President     





 






 





 






  [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]  CREDIT SUISSE AG, CAYMAN ISLANDS  BRANCH, as Lender        By:    Name: Lingzi Huang  Title:   Authorized Signatory    By:    Name: Cassandra Droogan  Title:   Authorized Signatory    





 






 





 






  [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]  CITIZENS BANK, N.A., as Lender    By:    Name: Kolby D. Baker  Title:   Vice President      





 






[SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]  INDUSTRIAL AND COMMERCIAL BANK OF  CHINA LIMITED, NEW YORK BRANCH  By:  Name: Christine Cai   Title:  Vice President   INDUSTRIAL AND COMMERCIAL BANK OF  CHINA LIMITED, NEW YORK BRANCH  By:  Name: Pinyen Shih  Title:  Executive Directors   Digitally signed by:  Christine Cai Date: 2021.12.23  14:58:29 -05'00' Pinyen Shih 2021.12.27 10: 32:30 -05'00' 





 






  [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]    JPMORGAN CHASE BANK, N.A., as Lender      By:    Name: James A. Knight  Title:  Executive Director  





 






  [SIGNATURE PAGE TO FOURTH AMENDMENT TO CREDIT AGREEMENT]    SUMITOMO MITSUI BANKING CORPORATION,  as Lender      By:    Name: Jane Pedreira  Title:     Director