livent_thirdamendtocredi






EXECUTION VERSION     WEIL:\98229966\5\35899.0596  THIRD AMENDMENT TO CREDIT AGREEMENT  THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), dated as of  November 5, 2021, by and among LIVENT CORPORATION, a Delaware corporation (“Livent”), 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, and the Second Amendment to Credit Agreement, dated as of August  3, 2020, the “Existing Credit Agreement”; the Existing Credit Agreement, as amended by this Amendment,  the “Amended Credit Agreement”).  WHEREAS, the Borrowers and the Administrative Agent wish to amend Section  6.04(a)(xviii) of the Existing Credit Agreement as detailed herein, subject to the terms and conditions set  forth herein.   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 Third Amendment Effective Date, Section  6.04(a)(xviii) of the Existing Credit Agreement is hereby amended and restated in its entirety as follows:   “(xviii)  other Indebtedness of Livent or its Restricted Subsidiaries (other than any Mine  OpCo Group Member) in an aggregate principal amount (i) not to exceed $25 million at any time  outstanding prior to the Covenant Conversion Date, and (ii) not to exceed $50 million at any time  outstanding on and following the Covenant Conversion Date; and”  SECTION 3.  Representations and Warranties. Each Loan Parties hereby represent and  warrant to the Lenders on the Third 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;  (ii)  have been duly authorized by all necessary action, including the consent of  shareholders, partners and members where required;  Exhibit 10.21 





 






- 2 -           WEIL:\98229966\5\35899.0596  (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 Third Amendment Effective Date, obtained  or made, and each of which on the Third Amendment Effective Date will be in full force  and effect.  (b)  This Agreement has been duly executed and delivered by each Loan Party.  This  Agreement 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 “Third 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.  





 






- 3 -           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 which shall  be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery  





 






- 4 -           WEIL:\98229966\5\35899.0596  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 THIRD AMENDMENT TO CREDIT AGREEMENT]    Credit Suisse AG Cayman Islands Branch,   as Lender        By:    Name: Nupur Kumar  Title:     Authorized Signatory    By:    Name: Cassandra Droogan  Title:     Authorized Signatory    





 






[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]  Goldman Sachs Bank USA, as Lender  By:  Name: Dan Martis  Title: Authorized Signatory  





 






[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]    Industrial and Commercial Bank of China Limited, New  York Branch, as Lender      By:    Name: Christine Cai   Title:     Vice President      Industrial and Commercial Bank of China Limited, New  York Branch, as Lender      By:    Name: Pinyen Shih  Title:     Executive Director     Digitally signed by:  Christine Cai Date: 2021.11.03  17:26:59 -05'00' Pinyen Shih 2021.11.03 17: 41:38 -05'00' 





 






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





 






[SIGNATURE PAGE TO THIRD AMENDMENT TO CREDIT AGREEMENT]  Sumitomo Mitsui Banking Corporation, as Lender  By:  Name: Jun Ashley  Title:    Director